Parisi V Sinclair 98 Main

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Case 1:10-cv-00897-RJL Document 98 Filed 02/11/11 Page 1 of 38
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
)
DANIEL PARISI, et al., )
)
Plaintiffs, )
)
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v. ) No. 1:10-cv-0897-RJL
)
LAWRENCE W. SINCLAIR a/k/a “Larry Sinclair”, )
et al., )
)
Defendants. )
)
PLAINTIFFS’ OPPOSITION TO SINCLAIR’S

MOTION TO DISMISS OR FOR SUMMARY JUDGMENT
Richard J. Oparil (D.C. Bar No. 409723)

PATTON BOGGS LLP
2550 M Street, NW
Washington, DC 20037
(202) 457-6000
(202) 457-6315 (fax)
Kevin M. Bell
PATTON BOGGS LLP
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8484 Westpark Drive

McLean, VA 22102
(703) 744-8000
(703) 744-8001 (fax)
Dated: February 11, 2011 Attorneys for Plaintiffs
PDF processed with CutePDF evaluation edition www.CutePDF.com

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TABLE OF CONTENTS
STATEMENT OF FACTS ............................................................................................................. 1
ARGUMENT................................................................................................................................ 14
I. Plaintiffs Have Adequately Pled That Sinclair’s Defamatory Statements Are False
And There Is No Competent Evidence That They Are True Or Substantially True. ....... 16
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A. Sinclair’s Motion To Dismiss For Failure To State A Claim Lacks Any
Basis.......................................................................................................................16
B. Granting Summary Judgment On The Issue Of Truthfulness Of The

Alleged False Statements In Favor Of Sinclair Would Be Error...........................17
1. Plaintiffs Had No Relationship Or Communications With Obama,

His Presidential Campaign Or Axelrod And Did Not Conduct A
Rigged Polygraph Examination Of Sinclair. .............................................18
2. Sinclair’s Statement In His 2009 Book That Parisi Is A

“Pornographer” Is Simply Not True. .........................................................22
II. Summary Judgment On The Issue Of Actual Malice Should Be Denied Because
There Are Genuine Issues Of Material Fact And Sinclair Is Not Entitled To
Judgment As A Matter Of Law......................................................................................... 23
III. Plaintiffs’ Reputations Have Been Harmed And They Have Been Damaged By
Sinclair’s Defamatory Book And Statements. .................................................................. 27
IV. Sinclair’s Motion With Respect To SPI Should Be Denied. ............................................ 31

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CONCLUSION............................................................................................................................. 31
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TABLE OF AUTHORITIES
Cases
Agere Sys. Guardian Corp. v. Proxim, Inc.,

190 F. Supp. 2d 726 (D. Del. 2002).........................................................................................30
Alvin v. Suzuki,
227 F.3d 107 (3d Cir. 2000).....................................................................................................30
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Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).........................................................15
Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009).............................................................................................................15
Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007).................................................................................................................14
Celotex Corp. v. Catrett,

477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).........................................................15
Conley v. Gibson,
355 U.S. 41 (1957)...................................................................................................................14
Copeland-Jackson v. Oslin,
555 F. Supp. 2d 213 (D.D.C. 2008) .........................................................................................17
Crowley v. N. Am. Telecomms. Ass’n,

691 A.2d 1169 (D.C. 1997) .....................................................................................................16
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Curtis Publishing Co. v. Butts,

388 U.S. 130 (1967).................................................................................................................26
Dunn v. Air Line Pilots Ass'n,

836 F. Supp. 1574 (S.D. Fla. 1993) .........................................................................................22
Edwards v. City of Goldsboro,

178 F.3d 231 (4th Cir. 1999) ...................................................................................................30
Erickson v. Pardus,
551 U.S. 89 (2007)...................................................................................................................14
Flowers v. Carville,
310 F.3d 1118 (9th Cir. 2002) ..................................................................................................22
Foman v. Davis,
371 U.S. 178 (1962).................................................................................................................30
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Fuller v. Vines,
36 F.3d 65 (9th Cir. 1994) .......................................................................................................30
Graco, Inc. v. PMC Global, Inc.,

2009 U.S. Dist. LEXIS 26845 (D.N.J. Mar. 31, 2009)............................................................17
Hafiz v. Greenpoint Mortg. Funding, Inc.,

2009 WL 2137393 (N.D. Cal. Jul. 16, 2009)...........................................................................15
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Harte-Hanks Communications, Inc. v. Connaughton,
491 U.S. 657 (1989)...........................................................................................................24, 26
Herbert v. Lando,
441 U.S. 153 (1979)...........................................................................................................23, 24
Hill v. Brush Engineered Materials, Inc.,

383 F. Supp. 2d 814 (D. Md. 2005) .........................................................................................30
Johnson v. Oroweat Foods Co.,

785 F.2d 503 (4th Cir. 1986) ...................................................................................................30
Latch String, Inc. v. Rouse Co.,

1977 U.S. Dist. Lexis 18086 (D.D.C. 1977)......................................................................16, 17
Liberty Lobby, Inc. v. Dow Jones & Co.,

838 F.2d 1287 (D.C. Cir. 1988) ...............................................................................................21
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).........................................................15
New York Times v. Sullivan,

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376 U.S. 254 (1964).................................................................................................................24
Olinger v. American Sav. & Loan Ass’n,

409 F.2d 142 (D.C. Cir. 1969) ...........................................................................................19, 20
Rudin v. Dow Jones & Co.,

557 F. Supp. 535 (S.D.N.Y. 1983)...........................................................................................22
Secord v. Cockburn,
747 F.Supp. 779 (D.D.C. 1990) ...................................................................................21, 24, 25
Sprague v. ABA,
276 F. Supp. 2d 365 (E.D. Pa. 2003) .......................................................................................22
St. Amant v. Thompson,

390 U.S. 727 (1968)...........................................................................................................24, 26
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Ware v. Nicklin Assocs., Inc.,

580 F. Supp. 2d 158 (D.D.C. 2008) .........................................................................................21
Washington Metro. Area Transit Auth. v. Quik Serve Foods, Inc.,

2006 U.S. Dist. LEXIS 24510 (D.D.C. Apr. 28, 2006) ...........................................................15
Rules
Fed. R. Civ. P. 12(b)(6)............................................................................................................16, 17
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Fed. R. Civ. P. 15(a) ......................................................................................................................30
Fed. R. Civ. P. 34...........................................................................................................................25
Fed. R. Civ. P. 35...........................................................................................................................25
Fed. R. Civ. P. 56(c) ......................................................................................................................15
Fed. R. Civ. 56(f) .....................................................................................................................21, 25
Other Authorities
RESTATEMENT OF TORTS § 582 ......................................................................................................20

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Plaintiffs, Daniel Parisi (“Parisi”), Whitehouse.com Inc., Whitehouse Network LLC
(“WNL”), and White House Communications Inc. (“WCI”) (collectively referred to as
“plaintiffs”), oppose the motion to dismiss to dismiss or for summary judgment filed by
defendant Lawrence W. Sinclair (“Sinclair”). Plaintiffs allege that Sinclair and the other
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defendants are liable for defamation and related torts pertaining to false statements in Sinclair’s
June 2009 book entitled BARACK OBAMA & LARRY SINCLAIR: COCAINE, SEX, LIES & MURDER?
(referred to as “the book” or “Sinclair’s book”, the paperback version of which is filed at Dkt.
No. 61 Ex. 1), marketing materials, and other statements. There are disputed issues of genuine
material fact and Sinclair is not entitled to judgment as a matter of law. Even though Sinclair
believes that “political discourse in this country has become increasingly exaggerated and
vituperative” (Dkt. No. 94 at 23), that is not a license to intentionally defame someone with a
made up story to sell a book published in 2009, long after the campaign is over.
STATEMENT OF FACTS1
Parisi is engaged in the business of owning and developing domain names and websites.
(Dkt. No. 1 ¶ 16; Declaration of Daniel Parisi (“Parisi Decl.”) ¶ 5). WCI owns the domain name
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whitehouse.com. Whitehouse.com Inc. and WNL operate the whitehouse.com domain name and
website. They have been and are engaged in efforts to develop that website into a profitable
business venture. In 2008, efforts were underway to develop Whitehouse.com into a politically-
oriented website. Plaintiffs hoped to follow the model of successful political sites such as
huffingtonpost.com, which in December 2008 raised $25 million in a single investment and a
total valuation of almost $100 million, according to published reports. (Id. ¶ 17; Parisi Decl. ¶
1
Sinclair’s memorandum includes a Statement of Irrefutable Facts, rather than a statement
of undisputed material facts as required by the Local Rules. Many of the purported “irrefutable
facts” are neither material to the claims and defenses raised herein and are factually disputed.
Plaintiffs’ Statement of Disputed Material Facts accompanies this opposition.
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5). In late 2008, as discussed below, WNL began efforts to develop a “Whitehouse Network”
television venture. (Id.; Ex. 1).
On February 10, 2007, then Senator Barack Obama (“Obama”) announced that he was
running for President of the United States. One of Obama’s campaign advisers and consultants
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was David Axelrod (“Axelrod”). Axelrod served as Senior Advisor to the President until earlier
this year. On January 3, 2008 Obama won the Iowa Democratic caucus. (Parisi Decl. ¶ 6).
Approximately two weeks later, on January 18, 2008, Sinclair posted a YouTube video in
which he made wild allegations regarding the purchase, sale and use of drugs and sexual activity
by and between Sinclair and Obama on November 6 and 7, 1999. (Parisi Decl. ¶ 7; Ex. 42).
Sinclair hoped and expected to profit and personally benefit from his drug and sex allegations
against the Presidential candidate. (Dkt. No. 1 ¶¶ 19-22). While Sinclair’s underlying story gave
rise to the events that followed involving the plaintiffs, the truth or falsity is not at issue here;
there is no allegation that plaintiffs were defamed or disparaged as a result of that story. (Parisi
Decl. ¶ 7).
Sinclair is a self-admitted drug user and trafficker. (Book at 25-30, 33). Sinclair has pled
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guilty and spent years in prison for forgery, theft, and writing bad checks. (Book at 19-22,
24-28; Ex. 2). Moreover, there is an outstanding felony warrant for “Larry Wayne Sinclair” in
Colorado. (Exs. 3-6).2
In February 2008, after he became aware of Sinclair’s allegations and as part of its effort
to develop a political website, Parisi, acting for Whitehouse.com, contacted Sinclair. (Parisi
2
Sinclair was cited for numerous prison infractions. (See, e.g., Exs. 7-8). Sinclair has also
been involved in bizarre conduct, such as creating bullet-ridden photographs of Obama and his
wife (Ex. 9). While claiming to be disabled, he has publicized photographs showing him
engaged in a series of strenuous activities (Ex. 10). Last year, Sinclair allegedly tried to commit
suicide. (Ex. 43). Further, in a July 16, 2008 interview and at the June 18, 2008 National Press
Club event, Sinclair said he has a “terminal” brain tumor. (Exs. 11-12, 43).
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Decl. ¶ 9). He offered to pay Sinclair $10,000 to take polygraph examinations and to pay him
$100,000 if the examinations showed Sinclair was telling the truth. (Dkt. No. 1 ¶ 23; Dkt. No.
94 Exs. C-D). Whitehouse.com made the offer to promote the site and to further its goal of
becoming a first-class political venue. (Parisi Decl. ¶ 9).
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As a precondition to Sinclair agreeing to be subject to a polygraph test, Parisi made it
clear to him that Parisi had no ties to Barack Obama or his campaign. In fact, Parisi said so
publicly. The following was posted on Whitehouse.com and sent to Sinclair by email prior to
test:
We are not affiliated in any way with any of the candidates or any
of the parties. I have never met or communicated with David
Axelrod or Barack Obama. Obviously since I never met either of
them I do not have friendship [sic] with either of them.
(Ex. 13 at 1, February 16, 2008 email; Parisi Decl. ¶ 10). That statement was true when it was
made and it remains true to this day. (Parisi Decl. ¶ 10).
To be clear, plaintiffs were not contacted by Barack Obama, his campaign, David
Axelrod or anyone associated with him pertaining in any way to Sinclair. They were not asked
or hired to rig a polygraph examination of Sinclair. They have never had any meeting,
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conversation or other communication, written or oral, with Obama, his campaign, Axelrod or
anyone associated with him. Plaintiffs have never been paid any money by Obama, his
campaign, David Axelrod or anyone associated with him. Plaintiffs hired independent experts
who provided them with results. The allegations in Sinclair’s book pertaining to plaintiffs’
involvement with the polygraph to benefit Obama and his campaign are unequivocally false.
(Parisi Decl. ¶ 11).
In a February 16 email to Sinclair, Whitehouse.com agreed that the parties would use a
“mutually agreeable” polygraph examiner. (Ex. 13 at 1). Sinclair never objected to the
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polygraph examiner ultimately selected. In the same email, Parisi warned Sinclair that a good
polygraph examination would take about four to five hours. (Parisi Decl. ¶ 12).
Sinclair replied to that email the same day, February 16. He agreed to Whitehouse.com’s
offer with certain conditions, including the following:
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1. You must publicly acknowledge any relationship or have or
had with David Axelrod or Barack Obama, if any,
including friendships.
2. I pick the polygraph examiner and it must be shown they

have no connections with any candidate of either party.
(Ex. 13 at 1). Whitehouse.com agreed to his conditions. (Ex. 13 at 2; Parisi Decl. ¶ 11).
On February 17, Sinclair emailed Parisi and asked him to locate an examiner to conduct
the examination. (Ex. 13 at 3). Parisi responded the next day, telling Sinclair that Edward Gelb
(“Gelb”), a certified polygraph examiner and past President of the American Polygraph
Association and well known examiner, could administer the test in Los Angeles on either Friday
or Saturday, February 22 or 23. (Id. at 4). Parisi also provided Sinclair with Gelb’s website
address. Sinclair never objected to the selection of Gelb. With respect to the place and time,
Sinclair wrote back that he would do the examination on Friday, February 22, and return home to
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Minnesota on Saturday, February 23. (Id. at 4; Parisi Decl. ¶ 14).
Because Sinclair was concerned for his safety, Parisi agreed to post on Whitehouse.com
that the polygraph would be administered in New York. (Id. at 8; Parisi Decl. ¶ 15).
On February 20, Sinclair wrote to Parisi that someone posted on Whitehouse.com that the
$100,000/$10,000 challenge was bribery. (Id. at 9). In response, Parisi offered to try to resolve
that concern by offering Sinclair to pay him $20,000 whether he passed the examination or not,
plus $2,000 to charity. (Id.). Parisi also wrote that: “If you do that way then you get rid of all
these bribe accusations. You will also look very good to the media and public as well.” On
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February 21, Sinclair counter offered for a flat payment of $20,000 to him and a donation of
$5,000 to the Salvation Army and the Boys & Girls Club. (Id. at 9). Whitehouse.com agreed to
the new payment amounts. (Id. at 11). Parisi told Sinclair that the checks would “not be
certified but we are a big organization here so I do not see where there is any issue. They will be
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Whitehouse.com Inc. checks signed by me.” (Id. at 11; Parisi Decl. ¶ 16).
On February 21, Sinclair agreed that “no other polygraphs can be done for 4 weeks.” (Id.
at 10; Dkt. No. 94 Ex. D; Ex. 47). Sinclair later acknowledged that “I have to wait 4 weeks
before I can do another polygraph with anyone else.” (Id. at 21; Parisi Decl. ¶ 17).
Parisi first met Sinclair in-person on February 21, in Los Angeles where his polygraph
examination was to take place. (Parisi Decl. ¶ 18). The next day, on February 22, 2008, Gelb
conducted a pre-examination interview and polygraph examination of Sinclair at his Los Angeles
office. (Parisi Decl. ¶ 19). Gelb’s polygraph focused on two underlying issues, Sinclair’s drug
and oral sex allegations. The examination was videotaped. (Parisi Decl. ¶ 20).
On Friday, February 22, Whitehouse.com received a verbal report that Sinclair’s
polygraph test on the key questions indicated deception. On Saturday, Whitehouse.com received
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the results of Sinclair’s drug test confirming that there were no drugs in his system that would
have interfered with the deception-indicated results. Before releasing the report,
Whitehouse.com had a handwritten report with the polygraph results. Also, Gelb’s results had
been reviewed by a second examiner in his office. (Parisi Decl. ¶ 21). Subsequently, on
February 26, Whitehouse.com also received a report from Gordon Barland (“Garland”), one of
the foremost experts in the world on polygraphs, who confirmed Gelb’s report that Sinclair’s
polygraph indicated deception. (Exs. 14-16; Parisi Decl. ¶¶ 22-23).
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Whitehouse.com posted the results of Sinclair’s polygraph examination by Gelb on
Sunday, February 24, 2008. They had not planned to release the results that early, but were
originally going to wait until they received drug test results and written reports from Gelb and
Barland. (Parisi Decl. ¶ 24). However, Sinclair had boasted that he had not failed the tests and
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rumors started to spread around the Internet that he had passed. A site called “The Way it Is”, a
pro-Sinclair blog where Sinclair had commented frequently, had a February 23, 2008 post
suggesting that Sinclair passed the polygraph. (Ex. 17; Parisi Decl. ¶ 24). Because the polygraph
test revealed deception, Whitehouse.com thought it was unfair and irresponsible to allow Sinclair
and his supporters to continue a character assassination of Obama, so they released the tests to
attempt to end the rumors that Sinclair had passed the polygraph tests. Links to Gelb’s test
results were posted on Whitehouse.com. (Dkt. No. 94 Ex. W; Parisi Decl. ¶ 25).
There were also inconsistencies in Sinclair’s story that supported the polygraph
examination results showing deception. For example, Sinclair said in his first YouTube video
that he had oral sex with Obama a second time, two days after their first meeting. (Ex. 42).
During the polygraph test, however, he said it was the next day. He also provided
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Whitehouse.com with a photo, allegedly of Sinclair in 1999, which he said was him in 1999 in a
taped polygraph interview. Parisi did not believe the photo to be that of a 38-year-old man.
In addition to the inconsistencies, Whitehouse.com was aware of Sinclair’s long criminal history,
discussed above.
Further, Sinclair had agreed to put Whitehouse.com in touch with the alleged limousine
driver who was said to have witnessed Sinclair’s drug and sex allegations. He failed to do so.
Despite telling Whitehouse.com that he was in constant contact with the driver, he has never put
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anyone in touch with the alleged driver. (Parisi Decl. ¶ 27). Parisi wrote Sinclair an email on
February 24 noting his failure to provide the information:
We have been waiting 2 days to speak the Limousine driver. You

were at the hotel about 4:00 PM on Friday so you had all afternoon
and night to reach the limousine driver. I called you last night
again on the limousine driver and you still did not give information
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on driver. You had told me you had a 5 hour layover at the
airports which would have given you more than ample time to get
in touch with him. You told me last night you would have the
information to us in the morning. Please contact us immediately
with the driver information so we can speak to him. Thanks.
(Ex. 13 at 14). Sinclair responded: “I told you and Rob I would try to put you in contact with
the driver. Last night when I spoke with you I told you I would deal with calling the driver
today, . . .” (Id. at 16).
Also, Sinclair was asked the following questions by the polygraph examiner:
1. Unrelated to this matter, did you ever lie for revenge or personal gain? Sinclair
answered no.
2. Unrelated to this matter, did you ever try to appear truthful when you knew you
were lying more than once? Sinclair answered no.

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3. Unrelated to this matter, did you ever manufacture a false story to get out of
trouble? Sinclair answered no.
It is highly unlikely that a person could truthfully answer “no” to all three of those questions.
Especially not a person who repeatedly pled guilty to crimes such as forgery, theft and fraud.
(Parisi Decl. ¶ 28).
While prior to the examination Sinclair expressed concern about his safety and security
(Ex. 13 at 2), after the examination he eagerly met with two bloggers at a hotel bar, telling them
all about the polygraph test. He also went out on the town in Los Angeles that night. (Parisi
Decl. ¶ 29). The night of the polygraph exam, Sinclair had gone on YouTube making belligerent
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posts and asked for money. He later denied it was him but that seemed unlikely due to the
information that was released. He also sent Parisi an email that night asking for $2,500 cash,
which Parisi did not provide. (Parisi Decl. ¶ 26).
On February 25, Sinclair charged that Whitehouse.com and Parisi had been working with
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David Axelrod and the Obama campaign to rig the polygraph examination. They understood
those allegations to mean that Whitehouse.com and Parisi had some secret relationship with
Obama, his campaign, and his consult, Axelrod. They also understood Sinclair to mean that the
plaintiffs here had engaged in criminal conduct, such as bribery or extortion. These allegations
have no basis in fact. Sinclair’s allegations did not deserve any reply. (Parisi Decl. ¶ 30). In
fact, he assumed that Whitehouse.com and Parisi would deny those false allegations. He wrote
Parisi: “I assume by your failure to reply you are denying prior knowledge of misrepresentation
by Mr. Gelb and the information I received early this morning advising me that you were paid
$750,000 by Axelrod associates to set me up? Do I assume correctly.” (Ex. 13 at 21). Sinclair’s
assumption was correct – the alleged wrongful conduct did not occur. (Parisi Decl. ¶ 30).
Contrary to the suggestions in Sinclair’s motion, Parisi does not recall ever speaking to
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Sinclair at any time regarding Gloria Allred, and he certainly could not and did not leak any
information about his dealings with her, if he in fact had any. Neither did plaintiffs leak any
information on Sinclair’s relatives as stated in his book. (Parisi Decl. ¶ 32).
Sinclair’s declaration states that Whitehouse.com stopped payment on the $20,000 check
two days after the alleged tip that he received in the middle of the night. Whitehouse.com did so
because Sinclair said in a February 25, 2008 blog interview (Ex. 18 at 3-4; Ex. 19) that he was
doing another polygraph examination and the results would be posted on Tuesday, February 26.
Whitehouse.com believed this was a repudiation and violation of the agreement, and the sole
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reason Whitehouse.com stopped payment on the check. (Parisi Decl. ¶ 33). On February 26,
Parisi explained to Sinclair that:
I saw this interview this morning and posted your response in

regards to another polygraph test. It shows that you are doing
another polygraph with results in this afternoon in violation of our
agreement. I have instructed bank to stop payment on the $20,000
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check this morning. The $10,000 in checks going to the charities
are not effected and will be paid.
(Ex. 13 at 21). Even though Sinclair claimed that the polygraph was rigged, he nevertheless
wanted to be paid for it. (Id. at 24).
Whitehouse.com never stopped payment on the checks for the two charities (in the
amount of $5,000 each). The charities returned the checks of their own volition. (Exs. 20-21;
Parisi Decl. ¶ 34). Sinclair posted an article stating that Parisi and his assistant, Robert
Braddock, had attacked the charities causing them to return the money that Whitehouse.com sent
them as part of its modified agreement with Sinclair. That allegation is simply not true, as shown
in letters from charities to Parisi. (Parisi Decl. ¶ 34).
Plaintiffs did not publicly comment about the Sinclair matter from end of February 2008
until June 2008. In June 2008, Sinclair announced that he was holding a press conference at the
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National Press Club in Washington. A pro-Sinclair blog, “The Way It Is”, as well as others, had
posted that Sinclair was going to release the source of the alleged anonymous bribe tip. (Ex. 22).
Sinclair's own (suspended)3 attorney, in a June 18 Politico article, said that Sinclair would
address the allegations that the sponsor of the polygraph had been bribed to skew the results
against him. (Ex. 23 at 2).
3
In 2008, Sinclair’s then attorney, Montgomery Blair Sibley, had been suspended from the
practice of law. (Ex. 25, Mem. Op. at 3).
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Whitehouse.com issued a release stating that it would hold its own press conference at
the National Press Club to respond to allegations made by Sinclair. (Ex. 24; Parisi Decl. ¶ 36).
On June 18, 2008, Sinclair held a press conference in the District of Columbia to repeat
his drug and sex allegations and alleged that a church choir master, Donald Young, was
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murdered on December 23, 2007 and suggested that Obama or his campaign was somehow
involved in the murder. (Book at 163-72; Ex. 44). However, Sinclair did not mention the Young
allegation during his hours-long interview with Gelb or during the polygraph examinations.
(Dkt. No. 1 ¶ 30; Parisi Decl. ¶ 37).
After hearing from reporters how poorly Sinclair’s conference went and that he had not
released any information to corroborate his bribe allegations or the source of the alleged tip,
Whitehouse.com trimmed its press conference to about two minutes, during which Parisi
reviewed Sinclair’s polygraph test results and categorically denied his bribe charges. He did not
take any questions. Defendant Jeff Rense was told on his radio show by a reporter who had
attended the press conference that Parisi denied the allegations. (Parisi Decl. ¶ 38). Plaintiffs
never again publicly addressed Sinclair or his assertions until plaintiffs filed this case in May
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2010. (Id.).
In June 2009, Sinclair self-published through SPI the copyrighted book at issue here.
(Dkt. No. 61 Ex. 1). SPI, Sinclair, B&N, Amazon, and BAM have offered for sale and sold
Sinclair’s book throughout the United States, including in the District of Columbia, in stores
and/or through internet order and delivery. (Dkt. No. 1 ¶ 34). Sinclair and the bookstore
defendants continued to sell his book even after this case was filed. For example, in September
2010, Amazon.com delivered to Parisi an autographed book, numbered 115 of 1000. (Ex. 26;
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Parisi Decl. ¶ 39). Amazon has continued to sell the Kindle version of the book to the public.
(Ex. 27; Parisi Decl. ¶ 39).
Sinclair’s book repeated his story about drugs, sexual activity and Donald Young’s
murder. Relevant to this case, however, is the book’s attacks on Parisi and Whitehouse.com.
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Sinclair’s book is replete with false, defamatory and derogatory statements regarding Parisi and
the website, including without limitation, the following:
▪ In fact, at 12:48 a.m. on February 25, 2008 (the day before

Barland’s review was even conducted), I received a telephone tip
from 207-252-2796 and 207-899-0872, advising me that the
polygraph was rigged and was arranged by Dan Parisi and Obama
Campaign advisor David Axelrod. The man giving me the tip
stated that, “Axelrod and the Obama campaign had agreed to pay
Dan Parisi of Whitehouse.com, $750,000 to arrange a rigged
polygraph. Parisi and Axelrod were in a heated argument because
the Obama camp wanted Parisi to publish that you had failed the
polygraph faster than what Parisi had said. Parisi was refusing to
publish anything further on the polygraph until he was paid the
other half of the three-quarters of a million dollars agreed on.”
When I received this information, I contacted Dan Parisi and

informed him of what was stated, and I asked Parisi to confirm or
deny the allegations. Instead of Parisi denying or confirming the
allegations that he refused to respond to the statements and then
posted a statement on Whitehouse.com that he had been threatened
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repeatedly by “Sinclair’s supporters and that Whitehouse.com

would not publish anything further regarding Larry Sinclair.” In
addition, Parisi immediately shut down Whitehouse.com,
completely scrubbed the site of all posts and comments on the
Larry Sinclair/Barack Obama story, and revamped the format of
the website requiring individuals to register with Whitehouse.com
before being able to comment. It was at that time,
Whitehouse.com became the staunchest promoters of Barack
Obama, while slamming Hillary Clinton non-stop. I also had
asked Parisi to respond; I forwarded the information to Chicago
Tribune reporter John Crewdson and asked him to look into who
the tipster was. Crewdson actually spoke to the tipster and was
told the same thing. In addition, the tipster stated that I should
look very carefully at the FEC campaign finance reports for the
period from January 1 through March 31, 2008 for the payments to
Parisi. The tipster also advised me that Parisi had many different
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holding companies, and the Obama campaign would not have

made a single individual payment.
Immediately after confronting Whitehouse.com’s Dan Parisi about

the allegations that he arranged a rigged polygraph exam, he issued
a stop payment of the check issued to me for the polygraph exam.
You see, Parisi had made a deal with David Axelrod and the
Obama campaign. All of this occurred on the very day that I
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published emails to Mr. Parisi asking for his response to the claims
made in an anonymous telephone tip.
▪ The information Edward Gelb had obtained from the extensive

pre-polygraph interview suddenly was being posted on the internet
at DemocraticUnderground.com, MyBarackObama.com,
HuffingtonPost.com, and others. Only the information had been
distorted and edited. In fact, it was after the rigged
“polygraph/fishing expedition” arranged by Dan Parisi in a deal
with advisor David Axelrod, that direct attacks began on the
internet and by phone against my father’s last wife, my nieces and
nephews, my mother and my brothers and sisters.
▪ Finally, in February 2008 I was told anonymously that Dan Parisi

of Whitehouse.com received $750,000 from the Obama campaign
through AKR Media to organize an effort to publicly discredit me.
When I confronted Parisi with this allegation, he did not deny it
but instead withdrew the second exonerating polygraph report of
Dr. Gordon Barland. He also failed to post the video of my
polygraph as he and Whitehouse.com promised they would do. He
even removed posts from their web site altogether, claiming that
they had “had enough of the attacks by Sinclair’s supporters and
Sinclair himself.”
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▪ [T]he polygraph exam was announced by the internet pornography

fraud Dan Parisi on Whitehouse.com . . . .
(Dkt. No. 1 ¶ 32; Parisi Decl. ¶ 40).
On July 9, 2009, after publication of his book, Sinclair did a one-hour radio interview
with Rense where he referred to Parisi as an Axelrod hack, they laughed about potential lawsuits
regarding the book and discussed Sinclair talking to Barnes & Noble about potential book
signings at their stores. (Parisi Decl. ¶ 42). On the tape, Sinclair said: “I’m looking forward to
being sued with you and everybody else who has brought this story forward.” (Ex. 45).
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In September 2009, Sinclair posted on his site that he was having a friend go to Los
Angeles District Attorney in regards to his bribe allegations, obviously meaning that Parisi was
guilty of a crime, and Parisi’s alleged involvement with Acorn, a now reviled group. (Parisi
Decl. ¶ 43).4
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After this case was filed in May 2010, Sinclair and others continued to make false and
derogatory statements about plaintiffs. For example, Sinclair posted a video on the internet
stating that Parisi was a “lapdog” for the Obama administration. (Ex. 46). On June 8, Sinclair
issued a press release saying that Parisi was a “fraud.” (Ex. 32).
Plaintiffs allege in the complaint that the defamatory statements are false and that the
following statements are true:
Plaintiffs have never discussed Sinclair or his allegations with

David Axelrod or the Obama campaign, or anyone acting on their
behalf.
Plaintiffs have never conspired, criminally or otherwise, with

Obama, the Obama campaign or Axelrod or anyone acting on their
behalf.
Plaintiffs have never entered into an agreement, contract, or

understanding with David Axelrod, the Obama campaign, or
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anyone acting on their behalf.
Plaintiffs never agreed to accept or be paid money or other benefit

by David Axelrod, the Obama campaign, or anyone acting on their
behalf, for any purpose.
Plaintiffs have never “made a deal with David Axelrod and the
Obama campaign” for any purpose, including without limitation, to
arrange a rigged polygraph examination of Sinclair.
4
Plaintiffs were not the only persons that Sinclair accused in 2009 of engaging in criminal
acts, such as bribery or extortion. Sinclair’s blog, dated May 31, 2009, accused Judge Bates of
inappropriate behavior and possible bribery in connection with rulings that the Court made in a
case Sinclair filed on March 13, 2008 against four unidentified bloggers for defamation and
“reckless misrepresentation”, captioned Sinclair v. TubeSockTedD, et al., Civil Action No. 08-
434-JDB. The case was dismissed on February 10, 2009. (Exs. 25, 35-37; Parisi Decl. ¶ 63).
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Plaintiffs did not “rig” Sinclair’s polygraph examinations.
Plaintiffs have never helped anyone to get away with murder.
Parisi is not and has never been a pornographer. He has not

produced, created or made any pornographic material.
During the relevant time period, Whitehouse.com did not contain

pornographic material.
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(Dkt. No. 1 ¶ 44). As alleged in the complaint, the defamatory statements were made and
published by defendants with knowledge of their falsity or with reckless disregard for their truth.
The defamatory statements were made without any evidence, direct or circumstantial, that they
were true when made. Sinclair’s book and the statements published by Sinclair and other
defendants did not contain a scintilla of factual support for their wildly false and reckless untrue
statements. (Id. ¶ 45). Prior to the filing of this action, defendants knew or had reason to know
of the defamatory statements. (Id. ¶ 47).
The complaint alleges four claims on which plaintiffs seek recovery from the defendants:
defamation (libel per se/libel) (¶¶ 54-64), false light invasion/misappropriation of privacy (¶¶ 65-
69), business disparagement (¶¶ 70-76), and tortious interference with economic advantage (¶¶
77-82).
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ARGUMENT
In deciding a motion to dismiss, the Court must accept as true all of the factual
allegations in the complaint. See, e.g., Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). “In
appraising the sufficiency of the complaint we follow, of course, the accepted rule that a
complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A complaint must include factual allegations
sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly,
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550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009). “[A] claim
must be factually supported and plausible on its face.” Hafiz v. Greenpoint Mortg. Funding, Inc.,
2009 WL 2137393, *2 (N.D. Cal. Jul. 16, 2009).
Sinclair’s motion is more in the nature of one for summary judgment. As the Court has
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summarized:
Under Rule 56, a court must grant summary judgment if the record
demonstrates “that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment on the undisputed
facts as a matter of law.” Fed. R. Civ. P. 56(c). A genuine issue of
material fact is one that is determinative of the claim or a defense
and could thus affect the outcome of the case. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed.
2d 202 (1986). All inferences drawn from the record must be
viewed in light most favorable to the non-moving party,
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986), and any factual
dispute that does not constitute a genuine issue of material fact is
immaterial for summary judgment purposes, Anderson, 477 U.S. at
248. The burden is on the movant to make the initial showing of
the absence of any genuine issues of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986); see id. at 325 (“The burden on the moving party may be
discharged by [demonstrating] that there is an absence of evidence
to support the nonmoving party’s case.”). The non-moving party
must support its position by providing more than “a scintilla of
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evidence”; the quantum of evidence must be such that a reasonable

jury could find for the nonmoving party. Anderson, 477 U.S. at
252. The movant is consequently entitled to a judgment as a matter
of law if the non-moving party “fails to make a showing sufficient
to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322.
Washington Metro. Area Transit Auth. v. Quik Serve Foods, Inc., 2006 U.S. Dist. LEXIS 24510,
7-9 (D.D.C. Apr. 28, 2006).
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I. PLAINTIFFS HAVE ADEQUATELY PLED THAT SINCLAIR’S DEFAMATORY

STATEMENTS ARE FALSE AND THERE IS NO COMPETENT EVIDENCE
THAT THEY ARE TRUE OR SUBSTANTIALLY TRUE.
A. Sinclair’s Motion To Dismiss For Failure To State A Claim Lacks Any Basis.
Sinclair first argues that plaintiffs’ complaint should be dismissed under Rule 12(b)(6)
because the “statements Plaintiff [sic] complains about in the Book are true and/or substantially
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true.” (Dkt. No. 94-1 p. 13). In support of this argument, Sinclair quotes a portion of the
complaint, which in turn quotes some parts of his book that contain alleged examples of “false,
defamatory and derogatory statements” (Dkt. No. 1 ¶ 32). Sinclair then argues (p.14) that
plaintiffs did not state a claim because the statements are all true or substantially true.
Plaintiffs have adequately pled that Sinclair’s statements in the book are false. Plaintiffs
identified specific statements by Sinclair in his book that are alleged to be false. (Dkt. No. 1
¶ 32). A defamation complaint is sufficient where it “contains the substance of the alleged
defamatory statement” and sets forth the date and persons to whom the defendant made the
statement. Crowley v. N. Am. Telecomms. Ass’n, 691 A.2d 1169, 1172 (D.C. 1997). Plaintiffs
identified specific examples of statements that by Sinclair that are false and misleading as to
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plaintiffs and what they contend to be the true facts. In Latch String, Inc. v. Rouse Co., 1977
U.S. Dist. Lexis 18086 (D.D.C. 1977), the Court ruled that:
With respect to plaintiffs' action in defamation, it seems sufficient

that plaintiffs allege that defendants made "false statements related
to the plaintiff's ability to competently manage a restaurant." While
courts have sometimes granted motions for more definite
statements in libel and slander actions, the allegations of
defamatory statements here are adequate to enable Connecticut
General to frame a responsive pleading. Thus Connecticut
General's motion will be denied as it relates to the causes of action
in conspiracy and in defamation.
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Id. at *5. Here, plaintiffs’ complaint is even more specific. Sinclair’s motion to dismiss under
Rule 12(b)(6) is specious.5
B. Granting Summary Judgment On The Issue Of Truthfulness Of The Alleged

False Statements In Favor Of Sinclair Would Be Error.
Nor is Sinclair entitled to summary judgment on the issue of truthful statements. “To
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make out a claim for defamation, plaintiff must demonstrate by a preponderance of the evidence
that the statements made about him were false.” Copeland-Jackson v. Oslin, 555 F. Supp. 2d
213, 217 (D.D.C. 2008). The false, defamatory, and derogatory statements in Sinclair’s book at
issue in this case fall into two categories:
1. Sinclair’s statements that (i) plaintiffs had a relationship with Obama, his
campaign, Axelrod, and persons associated with them, (ii) Axelrod or others
offered to pay or paid Parisi or the other plaintiffs $750,000 to conduct a rigged
polygraph examination of Sinclair, and (iii) plaintiffs did rig his examination and
publicly released the results showing deception in order to discredit Sinclair’s
credibility; and
2. Sinclair’s repeated assertion in 2008 and 2009 that I was a “pornographer” or that
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Whitehouse.com was a porn site.
None of Sinclair’s statements are true. (Parisi Decl. ¶ 46).
5
Plaintiffs’ complaint alleges that Sinclair’s book contained false statements, identified
specific statements, and averred that they were not true. A defense of truthfulness is
“inappropriate” on a motion to dismiss when all factual allegation are accepted as true.” Graco,
Inc. v. PMC Global, Inc., 2009 U.S. Dist. LEXIS 26845, *119 n.31 (D.N.J. Mar. 31, 2009).
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1. Plaintiffs Had No Relationship Or Communications With Obama, His

Presidential Campaign Or Axelrod And Did Not Conduct A Rigged
Polygraph Examination Of Sinclair.
The primary basis for the claims in this case relate to Sinclair’s Axelrod/rigged polygraph
statements. As Parisi has publicly and sworn in his declaration: “I have never had agreements,
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communications, relationships, or understandings with Obama or anyone connected with his
Presidential campaign, including Axelrod. I was never offered or paid any money to arrange
Sinclair’s polygraph examination. Plaintiffs certainly dispute the truthfulness of Sinclair’s
statements.” (Parisi Decl. ¶ 47).
The sole basis for Sinclair’s allegations is an anonymous telephone tip that he says he
received from two Maine telephone numbers on February 25, 2008 in the middle of the night. In
his book (Dkt. No. 61 Ex. 1 at 95), Sinclair describes this supposed tip:
In fact, at 12:48 a.m. on February 25, 2008 (the day before

Barland’s review was even conducted), I received a telephone tip
from 207-252-2796 and 207-899-0872, advising me that the
polygraph was rigged and was arranged by Dan Parisi and Obama
Campaign advisor David Axelrod. The man giving me the tip
stated that, “Axelrod and the Obama campaign had agreed to pay
Dan Parisi of Whitehouse.com, $750,000 to arrange a rigged
polygraph. Parisi and Axelrod were in a heated argument because
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the Obama camp wanted Parisi to publish that you had failed the
polygraph faster than what Parisi had said. Parisi was refusing to
publish anything further on the polygraph until he was paid the
other half of the three-quarters of a million dollars agreed on.”
Sinclair contends that the statement is true – he received the alleged tip. (Dkt. No. 94 at
14). Yet, he has not come forward with any audiotapes, telephone records, or other documents
corroborating his story about plaintiffs’ alleged illicit criminal conduct or communications with
the alleged tipster. If he does have such material, he has certainly never released it to plaintiffs,
the press, or the public, and it was not included in his book. (Parisi Decl. ¶ 49). None of the
exhibits that Sinclair filed in support of his motion (Dkt. No. 94 Exs. B-DD) provide any factual
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support for the notion that Sinclair received an anonymous tip on February 25, 2008, let alone
support for what the tipster supposedly told him. (Parisi Decl. ¶ 50).
Moreover, the information that Sinclair’s book provides about the tip is both scant and
unclear. The book says that he received “a telephone tip” at 12:48 a.m. from two telephone
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numbers. It is unclear to how Sinclair could have one conversation with a single anonymous
tipster from two different telephone numbers at the same time. (Parisi Decl. ¶ 51).
The 207 area code for the two numbers is in Maine. One of the numbers (207-899-0872)
was registered to Tammy Byrnes. (Ex. 33; Oparil Decl. ¶ 9). Ms. Byrnes has some kind of
family relationship with Sinclair. (Parisi Decl. ¶ 52). A call from a family relation would
certainly negate any belief that such a tip was credible.
Sinclair has not said if he asked the anonymous tipster how he became aware of alleged
information about Parisi and Axelrod. Sinclair has not said what, if any, questions he asked the
man. Sinclair’s motion does not set forth what effort he made – if any – to try to confirm the
alleged tip. (Parisi Decl. ¶ 53).
Because Sinclair has not provided any evidence as to the tip or the truthfulness of the
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allegations, he is basically asking the Court and plaintiffs to take his word for his contention that
the statements in his book and elsewhere about the polygraph examination and plaintiffs are true.
However, given his admitted criminal background and the evidence of deception shown by the
polygraph reports themselves, his word is highly suspect. (Parisi Decl. ¶ 54).
Sinclair cannot argue that his book does nothing more than repeat what the alleged
anonymous tipster told him on the telephone on February 25, 2008. That argument is foreclosed
by Olinger v. American Sav. & Loan Ass’n, 409 F.2d 142 (D.C. Cir. 1969). There, the defendant
sent a letter in which he repeated a statement that had been reported to him by a third person.
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The defendant argued that the statement was true because he did, in fact, receive that report. The
D.C. Circuit rejected the argument:
The law affords no protection to those who couch their libel in the
form of reports or repetition. In the first place repetition of a
defamatory statement is a publication in itself, regardless whether
the repeater names the source. As a corollary, and more germane
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to the instant case, the repeater cannot defend on the ground of
truth simply by proving that the source named did, in fact, in fact,
utter the statement. To quote the Restatement of Torts:
When one person repeats a defamatory statement which he

attributes to some other person, it is not enough for the
person who repeats it to prove that the statement was made
by the other person. He must prove the truth of the
defamatory charges which he has repeated.
Olinger, 409 F.2d at 144 (footnotes omitted), quoting RESTATEMENT OF TORTS § 582 comm. d.
Therefore, even if Sinclair argues that he was doing nothing more than repeating and
relying on what the tipster in the night told him (and he cannot or has not identified that person),
is not a defense if what the tipster told him is false (which it is).
Plaintiffs have not yet had any discovery from any of the defendants or third parties. It
would be grossly unfair to grant Sinclair’s motion to dismiss or for summary judgment without
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giving plaintiffs the opportunity to obtain documents, interrogatory responses and deposition
testimony related to Sinclair’s argument that his statements were truthful. The Federal Rules
provide that:
If a party opposing the motion shows by affidavit that, for

specified reasons, it cannot present facts essential to justify its
opposition, the court may:
(1) deny the motion;
(2) order a continuance to enable affidavits to be obtained,

depositions to be taken, or other discovery to be undertaken; or
(3) issue any other just order.
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Fed. R. Civ. P. 56(f). “The District of Columbia Circuit has cautioned against granting summary
judgment before the plaintiff has been afforded the opportunity to take discovery.” Ware v.
Nicklin Assocs., Inc., 580 F. Supp. 2d 158, 163 (D.D.C. 2008); see also Liberty Lobby, Inc. v.
Dow Jones & Co., 838 F.2d 1287, 1292 (D.C. Cir. 1988) (summary judgment should be granted
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only after adequate time for discovery); Secord v. Cockburn, 747 F.Supp. 779, 786 (D.D.C.
1990) (“this Court of course recognizes that discovery must be exhausted before a court rules
upon a dispositive motion for summary judgment.”). Plaintiffs have not had any discovery,
which they believe will support their claims against Sinclair.
One example of such discovery would be telephone records of Sinclair and third parties
to identify whether calls were made to Sinclair from the two Maine numbers and the identity of
the alleged tipster. Another example would be a subpoena duces tecum and deposition for the
polygraph experts, Gelb, a second examiner from his office, and Barland, to confirm that the
examination was not rigged in any way. Because they conducted and reviewed Sinclair’s
examination, evidence from them that it was not rigged would support Parisi’s claims. (Oparil
Decl. ¶ 7; Parisi Decl. ¶ 55). Further, Sinclair himself should provide plaintiffs with
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discoverable documents and a deposition, particular where his state of mind as to the truth or
falsity of defamatory statements is at issue.6
Thus, pursuant to Fed. R. Civ. P. 56(f), Sinclair’s motion should be denied or continued
at this time.
6
Plaintiffs note that they have raised the question of Sinclair’s potential spoliation of
evidence. (Dkt. No. 45, Emergency Motion for Order To Require Defendants Lawrence W.
Sinclair And Sinclair Publishing, Inc. To Preserve Discoverable Information And Documents).
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2. Sinclair’s Statement In His 2009 Book That Parisi Is A

“Pornographer” Is Simply Not True.
The secondary defamation claim pertains to Sinclair’s “pornographer” statements about
Parisi. Contrary to the statements in Sinclair’s book, at no time did Parisi produce or create
pornography. A “pornographer” is defined as “someone who makes pornographic books,
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movies, etc.” (MacMillan Dictionary); “one who produces pornography” (Merriam-Webster's
Online Dictionary (11th Ed.)). The online slang dictionary, Urban Dictionary, defines the term
as “pornographer” as “someone who takes photos of naked people.” Sinclair has no facts
showing that Parisi meets that definition. Dictionary definitions of alleged defamatory
statements are relevant. See, e.g., Flowers v. Carville, 310 F.3d 1118, 1127-28 (9th Cir. 2002) (a
statement by a presidential candidate's campaign aide that plaintiff had "doctored" documents
was capable of defamatory meaning where a dictionary definition provided that "doctor" is a
crime); Sprague v. ABA, 276 F. Supp. 2d 365 , 377 (E.D. Pa. 2003) (dictionary definition of
"fixer" relevant to defamatory meaning); Dunn v. Air Line Pilots Ass'n, 836 F. Supp. 1574, 1581
(S.D. Fla. 1993) (relying on Webster's New Collegiate Dictionary definition of a "scab"); Rudin
v. Dow Jones & Co., 557 F. Supp. 535, 545 (S.D.N.Y. 1983) (dictionary evidence relevant in a
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defamation action).
Parisi has never made or produced pornography or “taken pictures of naked people” for
Whitehouse.com. In fact, all of the adult material on the site was purchased from third parties or
Whitehouse.com linked to adult content from third parties. Whitehouse.com never operated a
studio and never took pictures or made videos of anyone. The employees of Whitehouse.com
Inc. would then add the third party content to the site. (Parisi Decl. ¶ 57). Parisi originally
started Whitehouse.com in the 1990s as a free speech site so the average person could have a say
in how their government worked. The site did not generate any significant income, however,
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which led to the business decision to post adult content on the site. By early 2004,
Whitehouse.com decided to no longer display adult content (Dkt. No. 94 Ex. B at 5), a decision
that was fully implemented by about April 2005. (Parisi Decl. ¶ 57).
Sinclair was well aware that Parisi was not a pornographer that Whitehouse.com had not
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displayed adult content since 2005. After meeting Sinclair in Los Angeles in February 2008,
Sinclair and Parisi discussed the fact that Whitehouse.com ceased to be an adult site in April
2005, which had fulfilled a promise Parisi had publicly made in 2004. (Parisi Decl. ¶ 58).
Whitehouse.com had offers to purchase the domain in 2004, including one from Larry Flynt and
others from foreign buyers. However, they did not want to sell the site to an adult company or an
anti-U.S. foreign entity. (Parisi Decl. ¶ 59). During a one-hour interview with defendant Jeffrey
Rense on February 26, 2008, Sinclair talked about Whitehouse.com being shut down as an adult
site years earlier and his conversation with Parisi on that matter. (Ex. 47; Parisi Decl. ¶ 60).
This clearly shows Sinclair knew that Whitehouse.com was not an adult site in 2008 as alleged in
his book.7
II. SUMMARY JUDGMENT ON THE ISSUE OF ACTUAL MALICE SHOULD BE

DENIED BECAUSE THERE ARE GENUINE ISSUES OF MATERIAL FACT
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AND SINCLAIR IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW.
For purposes of judicial economy and for this motion only, plaintiffs will assume that
Parisi and Whitehouse.com could be considered limited public figures. Thus, we will focus on
Sinclair’s argument that plaintiffs cannot prove and have not come forward with evidence that he
made the defamatory statements with actual malice – with knowledge that it was false or with
reckless disregard of whether it was false or not. See, e.g., Herbert v. Lando, 441 U.S. 153, 156
7
Sinclair’s motion refers to a dispute with Madonna Ciccone. This was a trademark
dispute before the World Intellectual Property Organization and in a declaratory judgment
lawsuit involving the Madonna.com domain name. The case was settled confidentially in the
early 2000s. (Parisi Decl. ¶ 62).
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(1979); New York Times v. Sullivan, 376 U.S. 254, 280 (1964). “[A]bsent knowing falsehood,
liability requires proof of reckless disregard for truth, that is, that the defendant ‘in fact
entertained serious doubts as to the truth of his publication.’” Herbert, 441 U.S. at 156, quoting
St. Amant v. Thompson, 390 U.S. 727, 731 (1968). Subjective awareness of probably falsity is
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found if “’there are obvious reasons to doubt the veracity of the informant or the accuracy of his
reports.’” Id. at 156-57, quoting St. Amant, 390 U.S. at 731. Actual malice may be shown by
circumstantial evidence. Id. at 160; Harte-Hanks Communications, Inc. v. Connaughton, 491
U.S. 657, 668 (1989).
Where the issue of actual malice is disputed, a plaintiff has the right to take discovery on
it. A defendant’s reckless disregard of the truth can be shown “by direct evidence through
inquiry into the thoughts, opinions, and conclusions of the publisher….” Herbert, 441 U.S. at
170. The plaintiff must be able to question the defendant: “It may be that plaintiffs will rarely
be successful in proving awareness of falsehood from the mouth of the defendant himself, but the
relevant of answers to such inquiries … can hardly be doubted.” Id. Plaintiffs thus may inquire
into the state of mind as well as the editorial process of those persons making alleged defamatory
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statements. Id. at 169-70.
Sinclair should not be able to obtain summary judgment by simply stating that he
subjectively believed the defamatory statements to have been true when he published his book.
Plaintiffs are entitled to test his belief through the discovery process. Sinclair’s memorandum
cites Secord, 747 F.Supp. 779, but that case actually supports plaintiffs. There, the Court granted
summary judgment on the issue of actual malice only after the “plaintiff has had an unrestricted
year and a half in which to pursue discovery in the instant case” nor did plaintiff inform the
Court that he would “need more time in which to pursue discovery on the issue of actual malice.”
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Id. at 786. During that time, the defendants' documents were made available for inspection
pursuant to a Fed. R. Civ. P. 34 document request and plaintiff was afforded a year and a half in
which to depose all of the defendants, and the book’s author and editor. Id. at 787.
Here, plaintiffs have had no discovery. They have not had any access to the documents
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of Sinclair (see Dkt. No. 45), any other defendant, or any third party. They have obviously not
had the opportunity to depose anyone. Under Fed. R. Civ. 56(f) and Secord, this Court should
deny or continue Sinclair’s motion with respect to actual malice.8
But even without discovery, the record shows that Sinclair acted with actual malice in
asserting that plaintiffs were connected to Obama, his campaign, and Axelrod and that plaintiffs
rigged the polygraph examination results. As set forth above, Sinclair writes in his book that he
learned this supposed fact from a late night telephone call from a single anonymous tipster who
called Sinclair on two different numbers. (Book at 95-96; Dkt. No. 1 ¶ 32). There is no hint in
his book, public statements, or the instant motion that Sinclair ever learned the identity of the
tipster or verified that the tip or the tipster were credible.
The Supreme Court has held that in situations like this the defendant should not prevail:
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The defendant in a defamation action brought by a public official

cannot, however, automatically insure a favorable verdict by
testifying that he published with a belief that the statements were
true. The finder of fact must determine whether the publication
was indeed made in good faith. Professions of good faith will be
unlikely to prove persuasive, for example, where a story is
fabricated by the defendant, is the product of his imagination,
or is based wholly on an unverified anonymous telephone call.
Nor will they be likely to prevail when the publisher's allegations
are so inherently improbable that only a reckless man would have
put them in circulation. Likewise, recklessness may be found
8
In Summer 2008, Sinclair publicly said he has a “terminal” brain tumor. (Exs. 11-12,
43). If true, this could obviously impact his physical and mental state and perception of reality.
If the statement was untrue, it damages his credibility. Plaintiffs thus may seek leave for an
examination of Sinclair pursuant to Fed. R. Civ. P. 35.
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where there are obvious reasons to doubt the veracity of the

informant or the accuracy of his reports.
390 U.S. at 732 (emphasis added). Sinclair’s story is expressly based on an unverified
anonymous telephone call. On this basis alone, Sinclair’s motion should be denied.9
In Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), the evidence showed that the
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Saturday Evening Post had published an accurate account of an unreliable informant's false
description of the an athletic director's purported agreement to "fix" a college football game. The
publishers did not interview a witness who had the same access to the facts as the informant and
did not look at films of that game. This evidence of an intent to avoid the truth was relied on by
the Court’s plurality opinion that there had been an extreme departure from professional
publishing standards as well as a more demanding standard applied by Chief Justice Warren and
Justices Brennan and White. See also Connaughton, 491 U.S. at 692 (newspapers inaction that
was a product of a deliberate decision not to acquire knowledge of facts that might confirm the
probability of falsity of a third person’s accusations is purposeful avoidance of the truth that will
support a finding of actual malice).
Here, too, the evidence suggests that Sinclair turned a blind eye to the facts to avoid the
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truth that plaintiffs had no connection to Obama and his campaign and did not rig or fix his
polygraph results.
9
Sinclair has wrote that “ I forwarded the information to Chicago Tribune reporter John
Crewdson and asked him to look into who the tipster was. Crewdson actually spoke to the tipster
and was told the same thing.” (Book at 96; Dkt. No. 1 ¶ 32). Assuming arguendo that this
statement is true (and plaintiffs would seek discovery from him), Sinclair does not say that
Crewdson, who was terminated by the Chicago Tribune in 2008, verified that accuracy of the
tipster’s information. Sinclair merely represents that Crewdson spoke to the tipster and “was
told the same thing.” Merely because a person repeats a lie does not make it true. Had
Crewdson been able to confirm the tip, he surely would have written a story about it, but he did
not. Therefore, Sinclair’s reference to Crewdson does not help his case.
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Additionally, Sinclair acted with actual malice when he published his book in 2009
proclaiming that Parisi is a “pornographer.” The statement was knowingly false. The record
shows that he was informed in 2008 that Whitehouse.com had not contained any adult content
since 2005. (Parisi Decl. ¶¶ 57-58). Sinclair’s own words from 2008 confirm his knowledge.
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During a one-hour interview with defendant Jeffrey Rense on February 26, 2008, Sinclair talked
about whitehouse.com being shut down as an adult site years earlier and my conversation with
Sinclair on that matter. (Parisi Decl. ¶ 60; Ex. 47). This clearly shows Sinclair knew that
whitehouse.com was not an adult site in 2008 as alleged in book. Nor could Sinclair have
formed the belief that Parisi ever made or produced pornographic material. (Parisi Decl. ¶ 57).
Thus, the only information available to Sinclair when he published the book was that
Whitehouse.com was not an adult site and Parisi was not a pornographer. Accordingly, this
Court should deny Sinclair’s motion for summary judgment on the disputed issue of actual
malice.
III. PLAINTIFFS’ REPUTATIONS HAVE BEEN HARMED AND THEY HAVE

BEEN DAMAGED BY SINCLAIR’S DEFAMATORY BOOK AND
STATEMENTS.
TheRe
Sinclair’s motion to dismiss contends that the plaintiffs (all of whom are connected to
Whitehouse.com) have not been injured or damaged since publication of the book. Nothing
could be further from the truth. After release of the book, Parisi received derogatory comments
from third-parties and even death threats. For example, Ex. 38 is an email from the “Kill Dan
Parisi Fan Club.” (Parisi Decl. ¶¶ 64-65).
Further, the release of Sinclair’s book and the resulting negative publicity has hindered
plaintiffs’ ability to obtain any significant revenue from the Whitehouse.com domain. (Parisi
Decl. ¶ 66). For example, Parisi attended a Domain Name Conference in the fall of 2009,
at which Whitehouse.com sold several domains. During the conference, Parisi was asked many
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questions about Sinclair's allegations. Despite his efforts, he was unable to sell the
Whitehouse.com domain. Parisi believes that his difficulty in selling Whitehouse.com is directly
related to the allegations in Sinclair's book. (Parisi Decl. ¶ 67).
As another example, plaintiffs incorporated Whitehouse Network as a New Jersey
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corporation to own and operate a video website. (Parisi Decl. ¶ 68). Their vision was that
Whitehouse Network would provide an internet-based hybrid of talk radio and cable news
shows, focused on politics and issues of public concern. Not only would the Whitehouse
Network produce its own content, but users would be able to post their own shows. The site was
similar to Ustream.tv, which raised $12 million after the launch of its platform. Ironically,
Sinclair had set up a site on Ustream, which was shortly pulled off the air by management.
(Parisi Decl. ¶ 68). Ex. 1 is a copy of Whitehouse Network’s business plan (with confidential
commercial information redacted).
Parisi sent copies of the business plan to several venture capitalists he had met over the
years as well as other persons who might be interested in the project. Parisi spoke to several of
those people about the project. During the conversations, he was asked by some of them about
TheRe
the Sinclair allegations as they had heard about them in the past or they had found out about it
when they Googled Whitehouse.com to get more information on the company. In 2009, there
were millions of web links on the term “Whitehouse.com Polygraph Scam.” Parisi was
specifically asked about Sinclair's book by potential investors. None of these persons invested
any money in the Whitehouse Network. (Parisi Decl. ¶ 69).
Approximately $250,000 was spent to set up the software and network. Whitehouse
Network had brought in several people to work on Whitehouse Network and had the beta site up.
There was a television studio set up in Washington, DC. Plaintiffs were in negotiations with a
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famous on-air conservative radio personality to host a flagship show for the Network, which
ultimately failed. Several people we spoke to regarding the White House Network asked us
about the Sinclair matter. Due to Sinclair’s book and the allegations in it against Parisi and the
website, plaintiffs were being forced to pay above market rates for talent. They also were being
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rebuffed in their attempts to raise working capital for the venture, which Parisi believes was due,
at least in part, to the Sinclair book and his allegations. Plaintiffs were also concerned that
Sinclair and his supporters would call in to the shows looking to drum up publicity for Sinclair's
book and start trouble. For this same reason, they did not allow users of the site to leave
comments which severely detracted from the value of the shows. For example, sites such as
Huffington Post and Politico allow people to comment on articles and posts, which plaintiffs
could not do because of fears of Sinclair supporters using the comments as a vehicle to promote
Sinclair’s agenda and the defamatory statements made against the plaintiffs. The White House
TV Network citizen platform venture failed after Sinclair's book came out. (Parisi Decl. ¶ 70).
Whitehouse.tv and Whitehouse.com TV Networks were shut down in Fall 2009. (Parisi Decl.
¶ 71).
TheRe
On February 7, 2011, Huffington Post was sold for $315 million dollars to AOL. (Parisi
Decl. ¶ 72). But for Sinclair’s false and derogatory statements in the book, Parisi believes that
White House TV and Network would have been off the ground and launched in 2009. They had
a world class domain name, a fully operational website, a working business model and
experienced management and talent. Sinclair’s book, with its defamation and disparagement of
plaintiffs, prevented that from happening. Based on the AOL announcement, it would appear
that the $10 million in damages sought in the complaint is understated. (Parisi Decl. ¶ 72).
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Thus, plaintiffs certainly were damaged by Sinclair since 2009. To the extent that the
Court would require more specificity in their pleading, they should be permitted to file an
amended complaint. Fed. R. Civ. P. 15(a) provides that leave to amend a complaint “shall be
freely given when justice so requires.” The liberal amendment policy is “a mandate to be
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heeded,” and leave should be granted unless the opposing party can demonstrate “extraordinary
circumstances,” such as excessive delay in the resolution of the case, bad faith on the part of the
movant or undue prejudice to the non-movant. Foman v. Davis, 371 U.S. 178, 182 (1962); see
also Fuller v. Vines, 36 F.3d 65, 67 (9th Cir. 1994) (there is a “strong policy permitting
amendment”); Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986); Hill v. Brush
Engineered Materials, Inc., 383 F. Supp. 2d 814, 824 (D. Md. 2005). “The law is well settled
‘that leave to amend a pleading should be denied only when the amendment would be prejudicial
to the opposing party, there has been bad faith on the part of the moving party, or the amendment
would be futile.’” Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999), quoting
Johnson, 785 F.2d at 509. Absent proof of such factors, it is an abuse of discretion to deny leave
to amend. See, e.g., Hill, 383 F. Supp. 2d at 824; Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir.
TheRe
2000); Agere Sys. Guardian Corp. v. Proxim, Inc., 190 F. Supp. 2d 726, 732 (D. Del. 2002).
Where possible, disputes should be resolved “comprehensively and on the merits.” Agere Sys.,
190 F. Supp. 2d at 732.
The facts set forth in Parisi’s declaration and the exhibits to this opposition certainly
provide a factual basis for adding any necessary allegations as to the falsity of his statements or
the injury to plaintiffs that occurred as a result of Sinclair’s book and his subsequent public
statements repeating the defamation. There would be no prejudice to the defendants from
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granting the motion to amend. The case is in its earliest, dispositive motion stage, there has been
no discovery and the case has been otherwise stayed since December 22, 2010.
IV. SINCLAIR’S MOTION WITH RESPECT TO SPI SHOULD BE DENIED.
Sinclair also asks the Court to dismiss Parisi’s claims and Barnes & Noble’s cross-claims
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against the book’s publisher, SPI. The parties have already briefed the issue of Sinclair’s
inability to act on behalf of a corporation. (See, e.g., Dkt. No. 29). However, Sinclair now
seemingly asserts that no cause of action can be asserted against SPI because it “was solely
owned and operated by Sinclair.” (Dkt. No. 94-1 p.26). That statement is untrue. SPI was
incorporated as a Florida corporation with several officers. (Exs. 39-40). Moreover, Sinclair has
made public statements that SPI had numerous shareholders. (See, e.g., Ex. 49). Sinclair has
recently represented that he intends to file a Chapter 7 bankruptcy petition as to SPI. (Ex. 41).
There is also the issue of Sinclair and SPI’s spoliation of evidence. (Dkt. No. 45). Delaying
issuance of a default judgment would unfairly prejudice plaintiffs. (See Oparil Decl. ¶ 11). The
Court should deny Sinclair’s motion and instead grant plaintiffs’ motion for default judgment.10
CONCLUSION
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For the foregoing reasons, plaintiffs respectfully request that Sinclair’s motion to dismiss
or for summary judgment be denied.
10
Plaintiffs take no position as to Sinclair’s request that the Court dismiss Barnes &
Noble’s cross claim against Sinclair and SPI for indemnification and contribution.
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Dated: February 11, 2011 Respectfully submitted,
/s/ Richard J. Oparil

Richard J. Oparil (D.C. Bar No. 409723)
PATTON BOGGS LLP
2550 M Street, NW
Washington, DC 20037
(202) 457-6000
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(202) 457-6315 (fax)
Kevin M. Bell
PATTON BOGGS LLP
8484 Westpark Drive
McLean, VA 22102
(703) 744-8000
(703) 744-8001 (fax)
Attorneys for Plaintiffs

TheRe
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CERTIFICATE OF SERVICE
I hereby certify that on February 11, 2011, a copy of the foregoing was served on counsel
for the parties that have appeared in the case by the Court’s ECF system.
gulator
s/ Richard J. Oparil
Richard J. Oparil (DC Bar No. 409723)
TheRe

Parisi V Sinclair 98 Main

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Parisi V Sinclair 98 Main

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UNITED STATES DISTRICT COURT

PLAINTIFFS’ OPPOSITION TO SINCLAIR’S

Richard J. Oparil (D.C. Bar No. 409723)

8484 Westpark Drive

Dated: February 11, 2011 Attorneys for Plaintiffs

PDF processed with CutePDF evaluation edition www.CutePDF.com

STATEMENT OF FACTS ............................................................................................................. 1

B. Granting Summary Judgment On The Issue Of Truthfulness Of The

1. Plaintiffs Had No Relationship Or Communications With Obama,

2. Sinclair’s Statement In His 2009 Book That Parisi Is A

IV. Sinclair’s Motion With Respect To SPI Should Be Denied. ............................................ 31

Agere Sys. Guardian Corp. v. Proxim, Inc.,

Bell Atlantic Corp. v. Twombly,

Celotex Corp. v. Catrett,

Crowley v. N. Am. Telecomms. Ass’n,

Curtis Publishing Co. v. Butts,

Dunn v. Air Line Pilots Ass'n,

Edwards v. City of Goldsboro,

Graco, Inc. v. PMC Global, Inc.,

Hafiz v. Greenpoint Mortg. Funding, Inc.,

Hill v. Brush Engineered Materials, Inc.,

Johnson v. Oroweat Foods Co.,

Latch String, Inc. v. Rouse Co.,

Liberty Lobby, Inc. v. Dow Jones & Co.,

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

New York Times v. Sullivan,

376 U.S. 254 (1964).................................................................................................................24

Olinger v. American Sav. & Loan Ass’n,

Rudin v. Dow Jones & Co.,

St. Amant v. Thompson,

Ware v. Nicklin Assocs., Inc.,

Washington Metro. Area Transit Auth. v. Quik Serve Foods, Inc.,

Fed. R. Civ. P. 12(b)(6)............................................................................................................16, 17

Fed. R. Civ. P. 34...........................................................................................................................25

Fed. R. Civ. P. 35...........................................................................................................................25

Fed. R. Civ. P. 56(c) ......................................................................................................................15

Fed. R. Civ. 56(f) .....................................................................................................................21, 25

RESTATEMENT OF TORTS § 582 ......................................................................................................20

Plaintiffs, Daniel Parisi (“Parisi”), Whitehouse.com Inc., Whitehouse Network LLC

(“WNL”), and White House Communications Inc. (“WCI”) (collectively referred to as

television venture. (Id.; Ex. 1).

Colorado. (Exs. 3-6).2

becoming a first-class political venue. (Parisi Decl. ¶ 9).

made and it remains true to this day. (Parisi Decl. ¶ 10).

(Parisi Decl. ¶ 11).

offer with certain conditions, including the following:

2. I pick the polygraph examiner and it must be shown they

Minnesota on Saturday, February 23. (Id. at 4; Parisi Decl. ¶ 14).

On Friday, February 22, Whitehouse.com received a verbal report that Sinclair’s

polygraph indicated deception. (Exs. 14-16; Parisi Decl. ¶¶ 22-23).

Whitehouse.com posted the results of Sinclair’s polygraph examination by Gelb on

February 24 noting his failure to provide the information:

We have been waiting 2 days to speak the Limousine driver. You

today, . . .” (Id. at 16).

were lying more than once? Sinclair answered no.

trouble? Sinclair answered no.

(Parisi Decl. ¶ 28).

which Parisi did not provide. (Parisi Decl. ¶ 26).

information on Sinclair’s relatives as stated in his book. (Parisi Decl. ¶ 32).

Parisi explained to Sinclair that:

I saw this interview this morning and posted your response in