The opinion of the court was delivered by: Chin, District Judge.
On January 25, 2001, in a Florida criminal court, fourteen
year-old Lionel Tate was convicted of first-degree murder in the
death of a six year-old girl. During the proceedings, Tate's
attorney argued the "wrestling defense" — the boy was an avid
fan of professional wrestling who was simply mimicking wrestling
moves he had seen on television when he accidentally killed the
girl. The defense was rejected. Lionel Tate was found guilty and
sentenced to life in prison.
This death and the deaths of three other children prompted
defendants in this case — self-proclaimed media "monitors,"
their executives, and Lionel Tate's attorney — to publicly
attack plaintiff World Wrestling Federation Entertainment, Inc.
(the "WWFE") and its highly successful wrestling programs,
including the television show WWF SMACKDOWN! Defendants publicly
blamed the WWFE and WWF SMACKDOWN! for the deaths of the four
children. For example, one of the defendants publicly stated
that "four children aged 4 to six years old have had their
lives tragically cut short by peers who were emulating wrestling
moves they learned by watching programs like WWF SMACKDOWN!"
(Am.Compl. § 46). Certain defendants also posted a statement on
the Internet alluding to the "sheer arrogance and
irresponsibility" of the WWFE, referring to "news reports of
four children having killed four children copycatting what they
watched on television," and asserting that "[t]he finger is
pointing directly to Smackdown!" (Id. ¶ 45).
The WWFE sues defendants for, among other things, defamation,
tortious interference with business relations, violations of the
Lanham Act, and copyright infringement. Defendants move to
dismiss the Amended Complaint, arguing, among other things, that
their speech is protected by the First Amendment and that the
WWFE has failed to state a claim with respect to any of its
causes of action. Defendants contend that the statements are
protected because they were made as part of a good faith effort
to reduce the level of violence and sex on television and to
promote "responsibility" in the entertainment media. Tate's
attorney also moves to dismiss for lack of personal jurisdiction
and on the grounds his statements were protected by the judicial
The First Amendment does, of course, protect public discourse
on the subject of sex and violence in the media. Defendants are
free to criticize the WWFE and to express the opinion that the
WWFE's shows are excessively violent and not in society's best
interests. What defendants may not do, however, is make false
and defamatory statements. The First Amendment does not protect
statements that are false and defamatory even if they are made
in the context of a public debate about issues of general
Here, the WWFE alleges, with specificity, that defendants made
statements that were false and defamatory, that were made with
malice, and that were made for commercial purposes — raising
money and self-promotion. Assuming, as I must, that the
allegations of the Amended Complaint are true for purposes of
this motion, I conclude that the WWFE has stated claims upon
which relief can be granted. Accordingly, and for the reasons
set forth below, defendants' motions to dismiss the Amended
Complaint are denied in all respects.
The WWFE is a media and entertainment company. It markets
products under the popular and successful World Wrestling
Federation (the "WWF") brand. It began airing a television
program entitled WWF SMACKDOWN! on August 26, 1999. (Am.Compl. ¶
Defendant Media Research Center (the "MRC") is a non-profit
corporation that purportedly seeks to "bring political balance
to the nation's news media and responsibility to the
entertainment media." (Id. ¶ 2). In 1995, the MRC established
defendant Parents Television Council (the "PTC") as its
entertainment division. The PTC's stated purpose is to monitor
television programming and to denounce what it considers
inappropriate programs. (Id. ¶ 15). At the end of 2000, the
PTC became an independent non-profit corporation, organized
under the laws of Delaware. (Id. ¶¶ 2-3). The PTC, however,
continues to perform the same activities as it performed under
the MRC. (Id. ¶ 3). The PTC claims to have approximately
Defendant L. Brent Bozell, III, is the Chairman of both the
MRC and the PTC. Defendant Mark Honig is the Executive
Director of the PTC.*fn1
Defendant James Lewis is a defense attorney, residing in
Florida. Lewis was defense counsel for fourteen year-old Lionel
Tate in his criminal trial for the 1999 death of six year-old
Tiffany Eunick. During the criminal proceedings, Lewis argued
that Tate was "simply . . . replicating what he saw being done
by Sting, Hulk Hogan or The Rock, familiar names to wrestling
aficionados." (Opp. Mem. Ex. A (Sentencing Order of Judge Joel
T. Lazarus, Florida v. Tate, No. 99-14401CF10A, at 12)).
Between September 1999 and May 2000, Lewis appeared on a number
of television and radio programs, including "Dateline," "Leeza,"
MSNBC, Court TV, and CBS Radio, to discuss the Lionel Tate case
and his defense. (See, e.g., Am. Compl. ¶¶ 65, 66, 70, 71, 72,
73). On March 9, 2001, after having been found guilty of murder
in the first degree, Lionel Tate was sentenced to life in
B. The PTC's Campaign Against the WWFE
In the summer of 1999, the PTC defendants began a campaign
attacking the WWFE and WWF SMACKDOWN!, for what they perceived
as the excessive violence and inappropriateness of plaintiffs
programming. (Id. ¶ 28). The stated goal of the PTC's campaign
was to "educate" its members and the WWFE's sponsors and
advertisers to the purported fact that the WWFE and WWF
SMACKDOWN! caused or was responsible for the deaths of four
children. (Id. ¶ 23).
As part of its campaign to "educate" its members, the PTC
engaged in the following: sending "Action Alerts" and "Urgent
Grams" via the Internet; sending letters; publishing articles on
its Internet website and in the "PTC Insider," its newsletter;
having Bozell write about the WWFE in his nationally syndicated
column; and sending fundraising videotapes that focused on the
WWFE and its products. With respect to "educating" the WWFE's
corporate advertisers and sponsors, the PTC's campaign included:
sending the corporations letters and videotapes; urging the PTC
members to contact the corporations directly; speaking at the
shareholders' meeting of the corporations; sending letters to
politicians (the United States armed forces are advertisers);
and advertising in newspapers.
C. The Allegedly Defamatory Statements
Within these many communications, defendants made allegedly
false and defamatory statements about the WWFE and its products.
These statements fall into two categories: (1) statements
asserting that the WWFE (and its programs, including WWF
SMACKDOIWN!) "caused and/or is responsible for the deaths of
four particular children" (see, e.g., Am. Compl. ¶ 23); and
(2) statements misrepresenting the number of corporate sponsors
and advertisers who have "pulled" or "withdrawn" their support
of WWF SMACKDOWN! (collectively, the "defamatory statements").
(See, e.g., id. ¶ 27).
An example of the first category is the following statement
made by Bozell and posted on the Internet:
(Id. ¶ 45). Another example is a statement made by a PTC
spokesperson at a meeting of shareholders of MCI, a WWF
Again, I must stress to you stockholders that
wrestling shows are having a deadly impact on our
children. Four children have been killed by peers who
were emulating wrestling moves they learned by
watching children programs such as WWF Smackdown!.
Four children, from 14 months to six years old, had
their live[s] cut tragically short because of the
effect wrestling had on their peers.
(Id. ¶ 91). The WWFE contends that the statements in the first
category are false because neither it nor any of its programs
was responsible for the deaths of any of the four children.
An example of the second category is the following statement
made by Honig to shareholders of ConAgra, another sponsor of WWF
I am here to ask you: Does ConAgra plan to continue
sponsoring WWF Smackdown! Or, will you decide, as
have nearly 40 other major U.S. corporations, to make
what is a socially and corporately responsible
decision and stop sponsoring this trash?
(Id. ¶ 109). The WWFE contends that the statements in the
second category are false because it was not true that "nearly
40" major corporations had decided to withdraw their
advertisements from WWF SMACKDOWN!
Lewis is alleged to have "echo[ed]" the other defendants'
"falsehood that WWFE was responsible for four children's deaths"
on various television talk shows, including shows produced and
broadcast in New York, when he purportedly knew the statements
were false. (Id. ¶ 72; see also id. ¶¶ 65, 73). He is also
alleged to have joined with the other defendants in a
"conspiracy" to harm the WWFE and the WWF mark; the Amended
Complaint notes that Lewis appears on a fund-raising video
produced by the PTC defendants in which critical and allegedly
false comments are made about the WWFE. (Id. ¶¶ 75-80).
WWFE's first amended complaint sets forth thirteen causes of
action: Lanham Act claims of trademark dilution, false
description, and unfair competition; a claim of copyright
infringement; and state law claims of defamation, tortious
interference with existing business relations, tortious
interference with prospective business relations, product
disparagement and trade libel, and conspiracy to commit the
The PTC defendants move to dismiss each count of the Amended
Complaint pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. Central to all of the PTC defendants' arguments
is the contention that their allegedly defamatory statements
were truthful and are protected by the First Amendment. The
Court heard oral argument on the PTC defendants' motion to
dismiss on April 26, 2001.
Defendant Lewis moves to dismiss the Amended Complaint
pursuant to Rules 12(b)(2) and 12(b)(3) of the Federal Rules of
Civil Procedure, arguing lack of personal jurisdiction and
improper venue. In addition, Lewis argues that his statements
are protected by the judicial proceeding privilege, as he
purportedly made them in the context of his representation of
Lionel Tate. Lewis's motion was taken on submission.
In their motions to dismiss, defendants repeatedly assert that
they were validly exercising their First Amendment rights, and
that their statements, therefore, are not actionable. The WWFE,
on the other hand, argues that the statements are false and were
made with malice, and that they constitute commercial speech.
Thus, according to the WWFE, defendants' statements are not
entitled to First Amendment protection.
Because these constitutional arguments permeate these motions
to dismiss, and because the First Amendment protection afforded
defendants' statements shapes the level of scrutiny the Court is
to apply to the WWFE's claims, I begin by analyzing the First
Amendment issues and then I address each of the WWFE's claims
The "robust" debate "encouraged by the First Amendment is
bound to produce speech that is critical of . . . those public
figures who . . . `by reason of their fame, shape events in
areas of public concern to society at large.'" Hustler Magazine
v. Falwell, 485 U.S. 46, 51, 108 S.Ct. 876, 99 L.Ed.2d 41
(1988) (quoting Associated Press v. Walker, 388 U.S. 130, 164,
87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (Warren, C.J.,
concurring)). As stated by Justice Frankfurter, "[o]ne of the
prerogatives of American citizenship is the ...