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May 24, 2001


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).

In their amended complaint, the WWFE alleges that these and other statements made by defendants were false and defamatory. The WWFE contends, for example, that Lionel Tate and the other children could not have been influenced by WWF SMACKDOWN! because the show did not begin airing until after three of the incidents had occurred and only two days before the fourth. The WWFE further contends that defendants made the false statements for commercial purposes — to raise funding for themselves. The WWFE alleges, for example, that defendants distributed a videotape to potential contributors attacking the WWFE and showing, without permission, excerpts of copyrighted broadcasts of WWFE events.

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 proceedings privilege.

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 concern.

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.


A. The Parties

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. ¶ 30).

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 625,000 members.

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 prison.

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:

The sheer arrogance and irresponsibility of the WWF while they line their pockets is frightening, especially when you have news reports of four children having killed four children copycatting what they watched on television. The finger is pointing directly to Smackdown! and they still don't care. You start flirting with the word evil at that point.

(Id. ¶ 45). Another example is a statement made by a PTC spokesperson at a meeting of shareholders of MCI, a WWF SMACKDOWN! sponsor:

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 SMACKDOWN!:

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).

D. This Action

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 foregoing.

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 separately.

I. The First Amendment

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 ...

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