Montogmery v. Risen #233 P Opp To SJ Motion

Case 1:15-cv-20782-JEM Document 233 Entered on FLSD Docket 01/13/2016 Page 1 of 36
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA
DENNIS L. MONTGOMERY
Plaintiff,
v.
Civil Action No. 1:15-cv-20782-JEM
JAMES RISEN, ET AL.,
ORAL ARGUMENT REQUESTED BY

BOTH PARTIES
Defendants.
PLAINTIFFS MEMORANDUM IN OPPOSITION TO

DEFENDANTS MOTION FOR SUMMARY JUDGMENT
Plaintiff Dennis L. Montgomery files this Memorandum of Law in Opposition to
Defendants Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure (FRCP)
Rule 56. The Plaintiff brought this civil action against Defendants for Common Law Defamation
Per Se, General Defamation, Defamation by Implication, Intentional Infliction of Emotional
Distress, Tortious Interference with Prospective Advantage, and Assault, as a result of Defendants
causing actual damages, compensatory damages, including continuing and aggravating harm to the
Plaintiffs professional, business and personal reputation and livelihood. Plaintiff requests punitive
damages because of the intentional damage that has been done to him, committed by the
Defendants.
I.
INTRODUCTION
As set forth in the Amended Complaint, Defendants James Risen, Houghton Mifflin
Harcourt Publishing Company (HMHPC), and Houghton Mifflin Harcourt Company

(HMHC), have published vicious, highly defamatory statements, both in their book Pay Any
Price: Greed, Power, and Endless War, and on television and radio, which have severely damaged,
if not totally destroyed, the reputation and financial ability of Plaintiff, Dennis Montgomery, to
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earn a living. Suffering from an acute brain aneurism, and destitute with huge medical and hospital
bills, he brought this action to not only clear his name, but to become financially whole such that
he can have the means to tend to his failing health and the family he may have to leave behind. At
the first status conference, the Honorable Jose Martinez thus understood that the case needed to be
tried before a jury of Plaintiffs peers at the earliest practicable date, particularly after defense
counsel callously denigrated Mr. Montgomerys medical condition.
Now, almost a year into the case, and at the last minute, Defendants belatedly move for
summary judgment, incredibly having bothered to only take one deposition, of Mr. Montgomery
himself, and on the last day of the pretrial order designated defectively an expert witness, in
violation of the Local Rules of this Court. [Dkt # 143]. In so doing, Defendants disingenuously
named an expert who does not even have a security clearance to analyze the alleged software,
which they say is crucial to defend the case. Indeed, as argued at the recent hearing before
Magistrate Judge Goodman, and as he himself recognized, this case concerns much more than
allegations that the software, which Mr. Montgomery developed and which was sold to the
government by his employers, did not work. See Transcript of Hearing of January 5, 2016 (Jan. 6
Transcript) at pgs. 138-142, Exhibit 1. Importantly, the majority of the defamatory statements
have nothing to do with the software or whether it worked in whole or part, as Magistrate Judge
Goodman has recognized. Id. The Defendants have only one real defense to their outrageous
conduct; that Mr. Montgomery did not produce his software for analysis by their bogus expert. But
Mr. Montgomery could not do so, even if he had it in his possession, as it is highly classified, as
confirmed in the context of this case by the Central Intelligence Agency (CIA) and its counsel
the U.S. Department of Justice. Mr. Montgomery is currently a government witness in an on-going
FBI criminal investigation concerning the widespread mass surveillance of judges, congressmen
and other high level persons by the intelligence agencies and any classified software was required
to be turned over to the FBI under immunity agreements. Exhibits 2, 3.
For example, at page 32 of Pay Any Price, Defendant James Risen writes:
Montgomery was the maestro behind what many current and former U.S. officials
and others familiar with the case now believe was one of the most elaborate and
dangerous hoaxes in American history, a ruse that was so successful that it nearly
convinced the Bush administration to order fighter jets to start shooting down
commercial airliners filled with passengers over the Atlantic. Once it was over, once
the fever broke and government officials realized that they had been taken in by a
grand illusion, they did absolutely nothing about it. The Central Intelligence Agency
buried the whole insane episode and acted like it had never happened. The Pentagon
jus kept working with Montgomery. Justice Department lawyers fanned out across
the country to try to block any information about Montgomery and his schemes
from becoming public, invoking the state secrets privilege in a series of civil
lawsuits involving Montgomery.
That Risen and the Defendant publishers would trash Mr. Montgomery by publishing that
he was the maestro behind what many current and former U.S. officials and others familiar
with the case now believe was one of the most elaborate and dangerous hoaxes in American
history, a ruse that was so successful that it nearly convinced the Bush administration to
order fighter jets to start shooting down commercial airliners filled with passengers over the
Atlantic[,] goes far beyond anything that had been written about Montgomery in so-called prior
publications. In fact, Risen having been thrown out the door by his original publisher, Simon &
Schuster because he could not back up his false and misleading claims, had to peddle his
defamatory book elsewhere. This occurred because, without maliciously manufacturing sensational
facts about Montgomery as The Emperor of the War on Terror, which is the title of the Chapter 2
of Pay Any Price, which became the centerpiece of Pay Any Price, the book would not sell. For
this reason alone, Simon & Schuster summarily rejected publication of an author who it had
coveted in the past.
Shamelessly undaunted by the rejection, Risen, through his book agent Tina Bennett,
approached Defendants HMHPC and HMHC, and ironically, after falsely calling Montgomery a
con, Defendant Risen conned these publishers to publish his book. Not even bothering to factcheck Risens grossly exaggerated story (nor later issue a correction when Plaintiffs counsel asked
HMHPC and HMHC to do so pursuant to Florida Statute 770.01, see Plaintiffs Statement of
Disputed Material Facts (PSDMF) at 3, 105, Exhibit 4, and without any named sources that
would corroborate that Mr. Montgomery had perpetrated the biggest hoax in American history such
that the president could order civilian airliners to be shot down, HMHPC and HMHC greedily
published Pay Any Price hoping that the sensational but unsubstantiated story would sell large
amounts of books in Florida one its biggest markets where it also resides and elsewhere.
PSDMF at 72, Exhibit 4.
The depositions of Risen and the Defendant publishers HMHPC and HMHC which Mr.
Montgomerys counsel took show that Risen could not or would not name more than three sources
that he actually spoke with about Mr. Montgomery. None of these so-called sources provided
credible information about Risens wild, unsubstantiated claims that Mr. Montgomery has
perpetrated the biggest hoax in American history. Nor, as set forth below, can this be gleaned from
any prior publications. And, even had there been prior publications to this effect, Defendants never
bothered to use due diligence to corroborate statements in publications such as the highly
respected literary disgrace of Playboy Magazine, a pornographic rag. Nor do Defendants claimed
reliance on public documents carry the day for them. None of these so-called public documents
state that Mr. Montgomery committed the biggest hoax in American history such that President
Bush gave authority to order the shoot down of civilian planes. In fact, the bottom line is that no
one was killed or even harmed, and there is evidence that the president himself was never even told
of this claimed hoax. Nor has Mr. Montgomery ever been indicted or prosecuted for his falsely
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claimed fraud which could have, according to Defendants, resulted in death to many persons. And,
the government never even asked Mr. Montgomery or his employers for reimbursement of what it
spent to acquire the dis-encryption technology. In short, and to use an old phrase by Vice President
Walter Mondale when he ran for the presidency against Governor Ronald Reagan, where is the
beef? This is no beef, only a lot of pork in a book that ironically itself has no clothes that is,
verifiable facts as observed by the first publisher Simon & Schuster to back up this makebelieve fiction. Risen and the rest of the Defendants simply cannot cover up their sensationalized
hoax by putting lipstick on a pig. Thus, Defendants argument that the so-called Fair Reporting
Doctrine protects them, fails miserably.
Mr. Montgomery is not a public figure, as Defendants incorrectly argue. Plaintiff, who to
this day holds a top secret security clearance (if there was fraud it would have been revoked), was
undercover for the governments intelligence agencies and did not seek public recognition for the
work he did in dis-encrypting terrorist messages following the tragedy of September 11, 2001.
Thus, mere negligent publication of the defamatory statements by Defendants is the legal frame of
reference for these defamatory publications. And, even if Mr. Montgomery is found to be a limited
public figure, as Defendants strain to argue, as set forth below there is plenty of actual malice
involved in their publications, as set forth in detail below.
In sum, Defendants belated Motion for Summary Judgment must be summarily denied as
the facts at issue are at a minimum controverted, and this case should proceed to trial.
II.
STATEMENT OF FACTS
A. The Willful, Intentional Defamation of Plaintiff Montgomery
Defendants publish that the Plaintiff was responsible for one of the most elaborate and
dangerous hoaxes in American history. Pg. 32. Defendants assert in their own voice that the
Plaintiff was the maestro behind these events that is acting intentionally with fraudulent intent
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as well as being the main decision-maker in which government officials were taken in by a
grand illusion, which the Defendants call in their own voice the whole insane episode. The
Defendants call this in their own voice a ruse that was so successful... again indicating
intentional action and a scheme to defraud that President George W. Bush blocked airplane
flights and considered shooting them down.
Thus, the Defendants, to make large sales and lots of money, knowingly and/or with
reckless disregard for the truth defame the Plaintiff as the maestro orchestrating a ruse and
one of the most elaborate and dangerous hoaxes in American history. The Plaintiff merely
provided dis-encryption technology, which was intended to be interpreted by experts in the
intelligence agencies. Instead, the Defendants defame the Plaintiff as the maestro responsible for
allegedly-bad but wholly unsubstantiated decisions by intelligence agency analysts and President
George W. Bush and other senior government officials.
Meanwhile, the Defendants had actual knowledge that Warren Trepp negotiated with the
government, not Montgomery. The Plaintiff, a little and terminally ill guy who it was easy for
Defendants to use as a whipping boy since he lacked the means to fight back, was surely not the
maestro of anything.
On Page 47 of the Book, the Defendants published:
That meant that Brennans office was responsible for circulating Montgomerys
fabricated intelligence to officials in the highest reaches of the Bush
administration. But Brennan was never admonished for his role in the affair. After
Barack Obama became president, Brennan was named to be his top
counterterrorism advisor in the White House. He later became CIA director.
(Moreover Brennan has been caught lying to Congress about his recent role as CIA
director in spying on Senator Dianne Feinstein and her staff. His credibility is in
doubt.) (Develop).
(emphasis added).
Defendants assert as a fact, in their own voice that Montgomerys dis-encryption

technology was fabricated. Yet Defendants also admit their actual knowledge that there was an
entire apparatus of government professionals in the highest reaches of government reaching their
own conclusions and interpretations of Plaintiffs technology. Thus, he Plaintiff could not defraud
or con the government, with high-level officials drawing their own conclusions from their worldrenowned expertise and resources.
On Page 50 of the Book, the Defendants published: Edra Blixseth was Dennis
Montgomerys latest mark. The Defendants statement that Blixseth was the Plaintiffs mark is
an unmistakable assertion of a fact, not an opinion, that the Plaintiff is a con-artist defrauding a
mark.
On Page 33 of the Book, the Defendants published: Montgomerys story demonstrates
how hundreds of billions of dollars poured into the war on terror went to waste. Harming
Plaintiffs profession and life in general, Defendants clearly state as a fact, in their own voice, that
the government wasted the money it spent for the use of Plaintiff Montgomerys services.
On October 13, 2014, Defendant James Risen gave a television interview with Judy
Woodruff on the Public Broadcasting System (PBS):
JUDY WOODRUFF: In the next chapter, JAMES RISEN, you write about
millions of dollars spent on programs that were completely fraudulent. One
was run by a man named Dennis Montgomery. He was a, He was a .... I guess
he had worked in computer software... but he was a GAMBLER!
JAMES RISEN: Right.
JUDY WOODRUFF: And he sold the CIA and the Pentagon on technology
that turned out to be not at all what he said it was.
JAMES RISEN: It is difficult to tell in some of these cases who is scamming
who. If you talk to Montgomery, he argues that the CIA wanted him to do
what he was doing. . .
JUDY WOODRUFF: It was a hoax.
JAMES RISEN: Right. Right.
(emphasis added). Am. Compl. 145.
Defendant Risen adopted without qualification the interviewers understanding of the Book
that Dennis Montgomerys program was completely fraudulent and a hoax. Yet, also, here,
Risen does include but radically distorts Montgomerys denial. Risen falsely changes
Montgomerys denial into an admission, suggesting that the CIA asked Montgomery to fabricate
data and commit one of the biggest hoaxes in American history. Thus, the Plaintiffs denial is
changed in Risens account into an admission that the information was fabricated, but that the CIA
told him to fabricate the data.
Defendant Risen sat for a nationwide television news interview on the television show
DEMOCRACY NOW!, including:
AMY GOODMAN: Dennis Montgomery?
JAMES RISEN: ... And so, it was this greatif you talk to him, he argues,
well, theythats what they were looking for. You know, they convinced him
to look for this. You know, it depends on who you talk to. But it was one of the
great hoaxes of the war on terror, where they actually grounded planes in
Europe, the Bush administration, based on information they were getting from
Dennis Montgomerys so-called decryption of Al Jazeera broadcasts . . .
AMY GOODMAN: How much did the Government give to Dennis
Montgomery?
JAMES RISEN: Millions of dollars.
JAMES RISEN: Yes, yes. There were planes grounded. International flights
between the United States and Europe and Mexico were grounded. There was
talk at the White House even of shooting down planes based on this
information.
AMY GOODMAN: Then Dennis Montgomery, revealed as a con man
JAMES RISEN: Yeah, yeah.
AMY GOODMAN: in jail for that?
JAMES RISEN: Well, no, hes not in jail. But it was ahe actually got more
contracts after that, with the Pentagon and other agencies. And he continued to
operate for a long time. You know, he kind of went from one agency to the
other.
(emphasis added). Am. Compl. 151.
The interviewer recognizes the meaning of the Defendants claims is that Montgomery
should be in jail. Risen states in his own voice, as a fact, not an opinion, that it was one of the
great hoaxes of the war on terror, and adopts without qualification that Montgomery is a con
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man, by answering Yeah, yeah, and states that the government gave Montgomery millions of
dollars. However, Risen had actual knowledge that the government paid Trepp, not Montgomery.
See PSDMF at 85-90, 92. Risen admits knowing that the CIA asked Montgomery to analyze the
videos and admits that Montgomery played no role in decisions about airplanes, saying: There
was talk at the White House even of shooting down planes.... Thus the Defendants actually knew
that government officials made those decisions that they publicly blame on Montgomery about
shooting down airplanes.
One former senior CIA official recalled attending a White House meeting in the
week following Christmas to discuss what to do next about the information
coming from Montgomery. The official claims that there was a brief but serious
discussion about whether to shoot down commercial airliners over the Atlantic
based on the intelligence.
The Defendants had actual knowledge that senior intelligence agency officials who
actually made these controversial decisions had strong motives to shift responsibility from them to
a individual private citizen as a scapegoat. Thus, the Defendants knew that they could not rely on
their sources to be truthful.
On Page 35 of the Book, the Defendants published: Trepp was one of the first, but hardly
the last, to be beguiled by Montgomerys claims that he had achieved breakthroughs in computer
technology of historic significance. Defendants had actual knowledge from the court records that
Trepp spent years and large legal fees suing to get control of computer technology which Trepp
valued at $100 million. PSDMF at 17.
Defendant James Risen gave an interview with Conversations with Great Minds of The
Big Picture RT with talk show host Thom Hartmann on October 24, 2014:
JAMES RISEN: Right. Uh, Dennis Montgomery is one of the best stories in the
war on terror. I think somebody should make a movie about him. Dennis
Montgomery was a computer software expert who said that he had developed
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technology that basically could find objects hidden in the video on television. And
so he convinced, through a whole series of contacts and meetings that I detail in
the book, he was able to get to the CIA and convince the CIA that he had the
technology to decipher Al Qaeda codes that were he said were hidden in Al Jazeera
news broadcasts.
Am. Compl. at 157
Risen stated on Thom Hartmans show that the CIA asked Montgomery to analyze the
videos, but on Amy Goodmans show that Montgomery was able to get to the CIA and convince
the CIA. Defendants had actual knowledge that their accusations were more than reckless. Risen
claims that Montgomery convinced, through a whole series of contacts and meetings the
government. But the records show that those meetings were with Trepp, not with Montgomery.
Consider the example of Dennis Montgomery. He provides a perfect case study to
explain how during the war on terror greed and ambition have been married to
unlimited rivers of cash to create a climate in which someone who has been
accused of being a con artist was able to create a rogue intelligence operation with
little or no adult supervision.
(emphasis added). Am. Compl. at 109.
Defendants had actual knowledge that the Plaintiff did not create a rogue intelligence
operation, with or without adult supervision. In context, this alleges criminal activity by the
Plaintiff in a rogue intelligence operation, as a fact, not opinion, in Defendants own voice.
Dennis Montgomery almost singlehandedly prompted President Bush to ground a
series of international commercial flights based on what now appears to have been
an elaborate hoax. Even after it appeared that Montgomery had pulled off a scheme
of amazing scope, he still had die-hard supporters in the government who
steadfastly refused to believe the evidence suggesting that Montgomery was a fake
...
Am. Compl. at 111.
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The Defendants state in their own voice, as a fact and not an opinion, that Montgomery
was a fake. Whereas the Book states that Dennis Montgomery almost singlehandedly prompted
President Bush to ground flights, Defendant Risen admitted in his deposition that the Plaintiff had
no role whatsoever in prompting President Bush. Risen denies that his Book claimed that. There is
no source or record that Montgomery ever spoke to Bush or ever suggested that any commercial
flights should be grounded or shot down. Others may have done so, but Montgomery did not.
On Page 37 of the Book, the Defendants published: Montgomery was able to win over the
government in part by offering field tests of his technology tests that former employees say
were fixed to impress visiting officials. Am. Compl. at 121. Defendants had actual knowledge
that Trepp won over the government, not Montgomery, and that the employees worked for Trepp,
who was suing to get ownership of the valuable technology.
On Page 40 of the Book, the Defendants published: Montgomery sold the CIA on the
fantasy that al Qaeda was using the broadcasts to digitally transmit its plans for future terrorist
attacks. ... The CIA more credulous than Hollywood or Las Vegas fell for Montgomerys
claims. Am. Compl. at 25
Defendants published statements that the CIA fell for Montgomerys claims and he sold
the CIA on a fantasy are statements of falsifiable fact asserted in the Defendants own voice, not
reporting what others said. Defendants had actual knowledge that Trepp sold the CIA as the
CEO of eTreppid and contact with the government, and Trepp received payments.
It did not take long for the French firm to conclude that the whole thing was a hoax.
The French company said that there were simply not enough pixels in the
broadcasts to contain hidden bar codes or unseen numbers. The firm reported back
to the French government that the supposed intelligence was a fabrication.
Am. Compl. at 130.
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While this quote is arguably a report of what a French firm claimed that the whole thing
was a hoax Defendants cannot rely upon this for the fair reporting privilege they claim. The
Defendants had actual knowledge that the Bush Administration was in a heated foreign policy
dispute with the French (primarily because of French firms commercial relationships with Iraq)
and it is not credible to believe an unspecified French firms claim that the supposed intelligence
was a fabrication. Importantly, the Defendants acted with reckless disregard for the truth relying
on a French firms beliefs which were not based on its analysis of the actual technology. PSDMF at
33.
Trepp was furious. According to court documents, he told the FBI that
Montgomery had stolen the software eTreppid had used on secret Pentagon
contracts. As federal investigators moved in to investigate the alleged theft of the
technology, they heard from Trepp and others that Montgomerys alleged
technology wasnt real.
Am. Compl. at 168
The Defendants had actual knowledge that Trepp was fighting in court to get control and
ownership of the software at the time, that he valued at $100 million in the lawsuit.
Finally, admitting that the Defendants did not have any basis for their defamation, in his
interview posted on October 24, 2014, called Inside The New York Times Book Review: James
Risens Pay Any Price: This week, James Risen and Lucy Worsley, Defendant Risen admits that
. . . it is very difficult to tell what is actually true. PSDMF at 107.
B. Defendants Went Far Beyond What Was Published Previously Published.
A simple review of the deposition transcripts of James Risen and HMHPC and HMHCs
FRCP 30(b)(6) witness, Bruce Nichols, as well as the cited publications of Defendants, shows that
no one ever claimed that Mr. Montgomery had committed the one of the biggest hoaxes in
American history and that because of Mr. Montgomery, President George W. Bush ordered the
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shoot down of civilian airliners if necessary. See PSDMF at 73. Moreover, Defendants had a
legal duty to fact check the accuracy of prior publications, which they clearly did not do, and can
be liable for defamation even if they solely republished what someone else published first which
they did not. See Restatement of Torts (2d) 581(2) (One who broadcasts defamatory matter by
means of radio or television is subject to the same liability as an original publisher.); see also
Restatement of Torts (2d) 578 ( . . . one who repeats or otherwise republished defamatory matter
is subject to liability as if he had originally published it, if he or she has reason to know of its
defamatory character.). Here, Defendant Risen was on notice well before the publication of his
book that Plaintiff Montgomery contested Risens prior New York Times article as being largely
false. In a series of emails, Plaintiff Risen seeks a correction for Defendant Risen because the
information that Risen claims he relied on for Pay Any Price is false. PSDMF at 103, 107, 111.
One cannot simply as a matter of logic and the law, regurgitate what others have falsely and
misleadingly written and then, if sued for defamation, hide behind these prior false and misleading
statements.1 Importantly, Defendant Risen incredibly relies on his own prior largely false
publication in the New York Times, effectively bootstrapping one libel on another and then
conveniently claiming immunity from liability. That is what Defendants attempt to do here. And
when confronted with the defamation pursuant to Florida Statute 770.01 and asked to do a due
diligence and retract the defamatory publications, Defendants again turned a blind eye to the truth
and arrogantly blew Mr. Montgomery and his counsel off. See Exhibit 5 (We deny your
allegations . . . also decline your invitation to meet to discuss HMHs manuscript review
[T]he republisher must read the release to make sure there are not inconsistencies; the article
must not be republished if there are unexplained inconsistencies or if the news organization
republishing the articles knows the article is false; and if a reasonable jury cold disagree as to
whether something in the article should put the newspaper on notice of a possible inaccuracy,
the defense is not available and summary judgment is not appropriate. Jennifer L. Del
Medico, Are Talebearers Really as Bad as Talemakers?: Rethinking Republisher Liability in an
Information Age, Fordham Urb. L.J. 1414, 1417 (2003).
1
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processes.). Given Defendants billions in combined assets, Defendants act as if they are above
the law.
C. Defendant Risen Named Three Sources From Which He Relied Upon and None of
Them Said Anything Close To What Risen Published
At his deposition, Defendant Risens counsel asserted the Shield Law, that is a Reporters
Privilege, and refused to allow him to identify any more than three alleged sources for what is
alleged to be defamatory statements by the Defendants. Risen Depo. 81:20-23. Notwithstanding
this, at his deposition, Risen only named three sources, claiming that there were many others, but
failing to identify them. PSDMF at 108. The three sources that were named were Samantha
Ravich, Fran Townsend and Bill Murray. None of these persons ever told Risen that Mr.
Montgomery had committed one of the biggest hoaxes in American history such that the president
ordered the shoot down of civilian airlines if necessary.
Townsend, for instance, who was at the time a counterterrorism official on the National
Security Council, said only that a potential mistake was made and that the agencies may have
been played, but admitted that faulty analysis frequently comes through the door. Neither she nor
others ever said that Mr. Montgomerys dis-encryption technology did not work and acknowledged
that the analysis of Mr. Montgomerys work was done by the intelligence agencies themselves, not
Mr. Montgomery. From Risens testimony and the exhibits of his talk with Ms. Townsend, it is
clear that the matter did not even rise to the level of having advised the president of any false
analysis by the intelligence agencies such that he went to the extreme step of ordering the shoot
down of civilian airliners if necessary. PSDMF at 37. In short, Ms. Townsend did not state in any
way what Defendants published and that Plaintiff had committed one of the the biggest hoaxes in
American history. Importantly, Townsend later received a promotion. Risen Depo. at pg. 325.
Next, there is Samantha Ravich, a national security aide to Vice President Dick Cheney.
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Her involvement only involved setting up a meeting by former Congressman Jack Kemp, and it
only involved the potential sale of the dis-encryption technology. It had nothing to do with whether
the dis-encryption technology was tantamount to one of the biggest hoaxes in American history or
the shoot down of planes, or the myriad of other demonstrably false statements as pled in the
Amended Complaint. PSDMF at 94.
Finally, the third named source is Bill Murray, who was Paris station chief of the CIA. The
Risen testimony shows that he was not in a position, being in France, to even know that the
Montgomery dis-encryption technology was a fraud, and in fact it is clear that the French
government never even tested the actual software but simply looked at the videos of Al Jazeera
broadcasts. The French intelligence agencies, who the CIA detested, had an interest in discrediting
the CIA analysis, since Air France civilian planes had been ordered not to fly to and from the
United States during the holiday period of 2003, resulting in lost revenues and fear by passengers
to take Air France in the future. In short, Bill Murray was not in a position to know if Mr.
Montgomery had committed one of the biggest hoaxes in American history or that the president
had ordered that Air France and other civilian airliners be shot down if necessary. PSDMF at 109.
As for John Brennan, now CIA Director, he never corroborated at his congressional
confirmation hearing what Mr. Risen and the Defendants wrote about Mr. Montgomery, who was
not encharged with interpreting and analyzing the dis-encryptions, and having perpetrated the one
of the biggest hoaxes in American history such that civilian airliners were ordered to be shot down.
PSDMF at 20. In fact, at his deposition, Risen was forced to admit only that And I view this
chapter and this story in the New York Times as accountability journalism. Where I believe
there were mistakes made in the government to accept this supposed technology. Risen
Depo. 335:16-19. Mistakes by CIA analysts, not Mr. Montgomery, do not amount to one of
the biggest hoaxes in American history!
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D. Defendant Risen Published That Many Have Said This Was the Biggest Hoax Yet
No One Said That, Its Not Even His Opinion, and Therefore Not Protected by
First Amendment
It clearly is not purely opinion for Defendant Risen to have written and Defendants to have
published that Montgomery was the maestro behind what many current and former U.S. officials
and others familiar with the case now believe was one of the most elaborate hoaxes in American
history . . ., as well as the myriad of other defamatory statements as pled in the Amended
Complaint. This is because Risen and the other Defendants base their allegedly defamatory
statements off of what others supposedly said. As set forth above no one actually said this, as well
as the other defamatory statements pled in the Amended Complaint. And, it defies all logic and the
facts of what occurred. The Defendants admit in the chapter that the government continued
working with Mr. Montgomery and his contracting companies, that no one ever brought the alleged
biggest hoax to the attention of the president much less anyone else in a position of authority,
and that Plaintiff was never charged or prosecuted with any crime, or even sued civilly by the
government; nor were Mr. Montgomerys contracting companies. The government did not even ask
for or demand a refund for Plaintiffs and his employers work. And, despite having just
conveniently recently remembered more so called sources in his affidavit attached as an exhibit to
their summary judgment motion, which were not testified to at his deposition and are thus also
precluded from consideration as they are barred by the invocation of the Shield law and reporters
privilege, it is clear that what Risen wrote and the Defendants published were statements of fact,
malicious false and misleading ones to boot, and the issue of their defamatory nature must be
given to the jury to decide.
E. Risens Book Was Rejected By The First Publisher Because There Was Nothing
Backed Up With Concrete Facts
Importantly, Defendant Risens long time publisher, Simon and Shuster, rejected Pay and
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Price because they were concerned that Risen had no verifiable facts to back up his multi faceted
malicious libelous assault on Mr. Montgomery. In authenticated documents obtained through a
motion to compel before the U.S. District Court for the Southern District of New York, Priscilla
Painton, Risens long time editor Priscilla Painton at Simon & Schuster writes about his
manuscript: The manuscript lurches perplexingly from story to story about the post 9/11
world with a promiscuous outrage about so many disparate developments . . . (redaction) . . .
that its hard to see where the book is here. On important subjects, the manuscript covers a
lot of ground covered elsewhere, and in too many instances, it does not answer the questions
it raises nor does it offer evidence for the claims it makes. PSDMF at 66.
When the Honorable Denise L. Cote ordered that these Simon & Schuster documents be
produced, she severely limited the production to only documents that concern what Risen wrote
about Mr. Montgomery in Pay Any Price. See Judge Cotes Order, Exhibit 8. Thus, the
admission in particular by Priscilla Painton that there in effect was no beef to back up what Risen
wrote is explosive and compelling, id., underscoring its defamatory nature and actual malice to
publish anything that while wrong would sell books.
Importantly, Simon & Schuster had every reason to publish the book, Risen having
successfully written and sold prior books that made their way onto the New York Times Best Seller
List, was previously a coveted writer for Simon & Schuster. But obviously realizing their potential
liability, Simon & Schuster ultimately jettisoned Risen as an author and literally threw him and his
book out the door. Indeed, Simon & Schuster had just gone through the ordeal of Risens previous
book, State of War, where he was given access to national security classified information by
whistleblower Jeffrey Sterling, who was later indicted and convicted for this and is now serving
time in prison. Risen himself was nearly indicted. Thus, Simon & Schuster was aware that it did
not want to again get in hot water and risk new liability by publishing defamatory material.
17
PSDMF at 69. Ironically, recognizing that the rest of Risens manuscript was lukewarm and
not likely to generate sales, Priscilla Painton, the editor, would have put a premium on the chapter
about Mr. Montgomery. That is obviously why it was named Emperor Of the War on Terror.
Risen made Mr. Montgomery the franchise in effect for alleged intelligence agency fraud and con,
ignoring that Mr. Montgomery was not the one who would even analyzed the dis-encryption of Al
Jazeera broadcast videos. And, that is why Risen did much more than stretch the truth about Mr.
Montgomery, falsely, misleadingly and maliciously claiming that he had committed one of the
biggest hoaxes in American history, potentially resulting in massive death to civilian airline
passengers. A review of the authenticated Simon & Schuster and Risens book agents documents
bears this out. PSDMF at 18. That is obviously why Defendants counsel fought so hard to try to
prevent these authenticated documents from being produced to Plaintiff and his counsel.
F. Houghtons Nichols Admits There Was No Fact Checking.
The depositions taken of Defendants, Risen and the Houghton and Mifflin publishers, show
unequivocally that there was no fact-checking of what Risen wrote about Mr. Montgomery. The
three Defendants here were akin to the three proverbial monkeys, Hear No Evil, See No Evil and
Do No Evil. They did no fact checking because without the sensationalized, malicious chapter
about Mr. Montgomery, as Simon & Schuster recognized, they could not sell as many books to
justify the cost of publication and Risens advance. Exhibit 6. Defendants Risen and the
subsequent publisher Houghton and Mifflin did not want to learn the truth, because the truth does
not sell! Indeed, Simon & Schuster jettisoned Risen and his book because, as Priscilla Painton
informed Risens book agent Tina Bennett, But in the end, were not confident that the manuscript
will fundamentally and appreciably improve to the extent that this money will ever be earned
back. Exhibit 6.
G. Plaintiff Sent Retraction Letters Defendants Disregarded Him
18
As is required by Florida Statute 770.01, Plaintiff and his counsel put Defendants on
notice of the defamatory content of Pay Any Price and concomitant television and radio
interviews about it, the latter of which really compounded the damage to and nailed the coffin
into Mr. Montgomery. As set forth in Plaintiffs Statement of Disputed Material Facts,
Defendants blew Plaintiff and his counsel off, arrogantly refusing to even consider any retraction,
much less for the first time do a bona fide fact-check. PSDMF at 3. While Mr. Montgomery is not
a public figure, even if he were, this goes to show actual malice.
H. Defendants Other So-Called Sources Are Hearsay and Not Entitled to Any
Consideration or Weight.
Defendants claim misleadingly and falsely that they relied on public documents in allegedly
defaming Mr. Montgomery. Notwithstanding that the cited public documents do not say what
Risen wrote and the other Defendants published, they are mere hearsay and in most instances
double hearsay and will not come into evidence at trial. Defendants never bothered to depose any
of these so-called sources, since to do so would uncover the truth. As set forth in Plaintiffs
statement of controverted facts, Risen never wrote and the other Defendants published what Mr.
Montgomery had told him during interviews. For instance, Mr. Montgomery provided facts which
would have proved that he did not commit one of the the biggest hoaxes in American history, that
he was only a technician and not a CIA analyst and was not responsible for what the president was
told or not told about the dis-encryptions of Al Jazeera broadcasts, that he was never investigated
over allegations that he was a fraud, and of course he was never prosecuted, much less asked by the
government for a refund. PSDMF at 82.
Thus, Risen, as was foretold by his original publisher Simon & Schuster, in order to sell
books in this district and elsewhere in Florida and around the world, had to grossly exaggerate,
fabricate and mislead readers that Mr. Montgomery was The Emperor of the War on Terror
19
Without Clothes. Callously stating unequivocally that many say that Mr. Montgomery had
committed one of the biggest hoaxes in American history that almost resulted in having scores of
civilians killed, and that this was all covered up by the CIA and other intelligence agencies, Risen
and the other Defendants spun a false web of deceit and lies that went far over the top of
professional journalism. To top it all off, Risen, who as a New York Times reporter had easy
access, never bothered to even try to speak with the top intelligence officials that would know what
had occurred; admittedly, persons like CIA Director George Tenet, Director of National
Intelligence James Clapper, Director of the NSA General Keith Alexander, John Brennan U.S.
Homeland Security Advisor, and others who would tell Risen that he was full of it, to put it
diplomatically. Risen and the Defendants publishers did not do due diligence on anything, as they
did not want to learn the truth, only sell books and lots of them. PSDMF at 74.
III.
ARGUMENT2
To prevail on a motion for summary judgment, the moving party bears a heavy burden of
establishing that there are no genuine issues of material fact and that the nonmoving party has
failed to offer sufficient evidence to support a valid legal claim. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 256 (1986).
A. The Court Must Deny Summary Judgment Because Virtually All Material Facts
Are Disputed and Any Disputes That May or May Not Be Disputed Must Be Given
to a Jury to Decide.
1. Material Facts In Dispute
Allegations of material facts are genuinely in dispute so that summary judgment is not
2
Under Rule 56 of Federal Rules of Civil Procedure: A party may move for summary
judgment, identifying each claim or defense or the part of each claim or defense on which
summary judgment is sought. The court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. The court should state on the record the reasons for granting or denying the motion.
Fed. R. Civ. P. 56.
20
available to the Defendants. A jury would decide those disputes in the Plaintiffs favor from the
record. And, disputes of alleged facts usually concern predicate facts for affirmative defenses,
such as a Fair Reporting Privilege and a claim that the Plaintiff is a limited public figure under New
York Times v. Sullivan, 376 U.S. 254 (1964).
As detailed in the Plaintiffs Statement of Disputed Material Facts, bona fide disputes of
material fact exist at a minimum, precluding summary judgment.
2. A Jury Must Decide the Disputes of Material Facts
It is only when the court can say that the publication is not reasonably capable of any
defamatory meaning and cannot be reasonably understood in any defamatory sense that it can rule
as a matter of law, that it was not libelous. Levy v. American Mut. Ins. Co., 196 A.2d 475, 476
(D.C. 1964) (Emphasis added); Weyrich v. New Republic, Inc., 235 F.3d 617, 627 (D.C. Cir. 2001).
When a plaintiff requests a jury trial, it is not for the district court to decide whether a statement
is defamatory or not. [I]f the language is capable of two meanings, one actionable and the other
not, it is for the jury to determine which of the two meanings would be attributed to it by persons of
ordinary understanding under the circumstances. Levy, 196 A.2d at 476 (Emphasis added). [A]
jury must determine whether these impressions were actually conveyed, whether they were
false, and whether the letters were motivated by actual malice. White v. Fraternal Order of
Police, 909 F.2d 512, 525 (D.C. Cir. 1990); see also Dunn v. Gannett New York Newspapers, Inc.,
833 F.2d 446, 449 (3d Cir. 1987) (if the language at issue is capable of both a defamatory and
a nondefamatory meaning, there exists a question of fact for the jury.).
Generally, a statement is defamatory when it injures a person in his trade or
profession. See Adams v. News-Journal Corp., 84 So.2d 549, 551 (Fla.1955);
Seropian v. Forman, 652 So.2d 490, 495 (Fla. 4th DCA 1995). In determining
whether statements are defamatory, the finder of fact must first decide whether
"from the language of the comment, it does not seem unreasonable to infer that
persons hearing the same and possessed of a common mind might have taken it to
mean that the plaintiff was a person with whom commercial relations were
21
undesirable." Wolfson v. Kirk, 273 So.2d 774, 778 (Fla. 4th DCA), cert. denied,
279 So.2d 32 (Fla.1973). The instant record reveals that, contrary to the trial
court's ruling, Scholz had presented a prima facia case of defamation by presenting
evidence that the Magic's statements were untrue, and by establishing the context in
which the statements were made and the impact they were likely to have on his
profession.
Scholz v. RDV Sports, Inc., 710 So.2d 618, 625-626 (Fla. App. 5 Dist, 1998)
B. Plaintiff Does Not Need to Prove Substantial Falsity for Defamation or Defamation
by Implication.
For Defamation by Implication under the Third Cause of Action: . . . [L]iterally true
statements can be defamatory where they create a false impression. This variation is known as
Defamation by Implication and has a longstanding history in defamation law. See Jews for Jesus,
Inc. v. Rapp, 997 So.2d 1098, 1106 (Fla. 2008). Defamation by Implication occurs when a
publication states facts that are literally true, but produces a defamatory meaning apparent from a
plain reading of the publication in its entirety. See Chapin v. Knight-Ridder, Inc. 993 F.3d 1087
(4th Cir. 1993).
Even accurately quoting other people which necessarily involves selecting which quotes
to include and which quotes to omit and/or stating opinions can create an overall impression that
is false. Therefore, even opinions or reports of other peoples statements can constitute the Florida
tort of Defamation by Implication.
Moreover, the alleged defamation at issue involved defamation per se, as Mr. Montgomery
was libeled and slandered in his trade or profession and accused of committing crimes. Thus, the
bar for him to jump over to show defamation, particularly at this stage of the case, is low. Indeed,
Per se defamatory statements are so obviously defamatory and damaging to [ones] reputation
22
that they give[] rise to an absolute presumption both of malice and damage. Klayman v. Judicial
Watch, Inc., 22 F. Supp. 3d 1240, 1247 (S.D. Fla. 2014).3
C. As a Matter of Law, Plaintiff Is Not a Limited Public Figure, But Even If He Were
Which He Is Not Defendants Motion Must Be Denied Because Defendants
Made Their Defamatory Statements With Actual Malice and Reckless Disregard
for the Truth.
1. Defendant Is Not a Limited Public Figure
In order to determine whether the actual malice standard of proof must be applied to
Gore's conduct, the status of the plaintiff as a public official, general public figure, limited
public figure, or private figure must be established. Della-Donna v. Gore Newspapers Co., 489
So.2d 72, 74, 11 Fla. L. Weekly 943 (Fla.App. 4 Dist. 1986).
However, the word limited is a key element of a limited public figure analysis. Here,
the Plaintiff does not qualify as a public figure or limited public figure for the purposes of
defamation law under New York Times v. Sullivan. He is a private citizen and indeed a
professional who was working in secret and under-cover for a government contractor performing
classified services for the CIA, NSA, and U.S. military. Yet the Defendants argue that the Plaintiff
is an unlimited limited public figure because he (1) was involved in a different controversy about
Congressman Gibbons, (2) many years ago, or (3) was a passive topic of public discussion.
A private citizen does not become a limited public figure as a result of being defamed nor
by being a passive topic of public controversy against his will. As Florida courts find:
Basically, two factors must be present before a person may be considered a limited
public figure. First, the circumstances in which a person achieves public figure
status must rise to the level of a public controversy and may not be a matter of mere
public interest. Second, the person must have voluntarily thrust himself into the
vortex of that controversy.
Arnold v. Taco Properties, Inc., 427 So.2d 216, 218 (Fla. App. 1 Dist. 1983) (emphases added).
3
Plaintiff there, undersigned counsel here, is a public figure and received a jury verdict, which
included punitive damages, in his favor. The verdict was not appealed.
23
Nor does Transmission Kingdom fit into the limited public figure test. WBBH
created a public controversy, not Transmission Kingdom. The facts do not support
a conclusion that Transmission Kingdom thrust itself into that controversy as a
central figure and brought attention upon itself. Further, the facts are certainly not
beyond dispute for the purpose of summary judgment; when viewed in the light
most favorable to Transmission Kingdom, the facts show Transmission Kingdom
was dragged into a limelight it least desired.
Saro Corp. v. Waterman Broadcasting Corp., 595 So.2d 87 (Fla.App. 2 Dist. 1992).
First, it is clear beyond any doubt that the plaintiff Rety was not a limited public
figure under Gertz prior to the instant controversy, and, consequently, actual
malice was not required to be proved as an essential element in the plaintiff's
cause of action. Rety was a private businessman who owned and operated an
exclusive French restaurant in Bay Harbor Islands. He advertised his restaurant as
do many other private businessmen, but he was in no sense a public personality. In
particular, he did not thrust [himself] to the forefront of [a] particular public
controvers[y] in order to influence the resolution of the issues involved. Gertz,
418 U.S. at 345, 94 S.Ct. at 3009. Indeed, he only became publicly prominent in
the Bay Harbor Island community due to the widespread publication of Green's
defamatory letter, and obviously a defendant in a defamation action cannot by his
defamation make the plaintiff a limited public figure for First Amendment
purposes; ... Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1293 n. 12
(D.C. Cir.), cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980).
Rety v. Green, 546 So.2d 410, 424, 14 Fla. L. Weekly 1829 (Fla. App. 3 Dist. 1989).
As a result, it is equally clear that privately working on a secret contract for the government
did not make the Plaintiff a limited public figure. In Rety v. Green, Rety running a public business,
a restaurant, and even advertising the business to the public, did not make Rety a limited public
figure. Similarly, in Saro Corp. v. Waterman Broadcasting Corp., running a public business
Transmission King did not make the owner a limited public figure.
Here, the Defendants argue that the Plaintiff publicized concerns about Congressman
Gibbons, but Florida law requires that the person must have voluntarily thrust himself into the
vortex of that controversy. Arnold v. Taco Properties, Inc., 427 So.2d at 218, not some other
controversy about some other topic at some other time. The Defendants claim that two different
controversies are actually the same is entirely unpersuasive. The Defendants seek to delete the
24
word limited from the limited public figure concept, including limitations as to time periods.
Importantly, Plaintiff testified under oath that he did not seek out attention or media. In addition,
the only television appearance of Plaintiff was a short blurb that he did strictly by advice of his
counsel at the time.4
2. Defendants Defamed Plaintiff With Actual Malice and Reckless Disregard of
the Truth
The Defendants are liable for their actionable defamation even if the Plaintiff were a limited
public figure because the defamation was made with actual malice. Whether the statements were
published with actual malice is a question generally for the jury, especially when as here the facts
are controverted. Southern Air Transport, Inc. v. Post-Newsweek Stations, Florida, Inc., 568 So.2d
927, 929 (Fla. App. 3 Dist. 1990) (extensive citations omitted); Scholz v. RDV Sports, Inc., 710
So.2d 618, 627 (Fla. App. 5 Dist., 1998), cf. Miami Herald Pub. Co. v. Ane, 423 So.2d 376 (Fla.
App. 3 Dist., 1982) (actual malice need not be proven when plaintiff is not a public figure).
In order for a public figure to succeed on a defamation claim, he must prove that the
publisher of the defamatory statement acted with actual malice. Nodar, 462 So.2d at
806. Actual malice is established by showing that the publication was made "with
knowledge that it was false or with reckless disregard of whether it was false or
not." New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11
L.Ed.2d 686 (1964).
Scholz v. RDV Sports, Inc., 710 So.2d 618, 627 (Fla. App. 5 Dist., 1998).
Actual malice includes publishing defamatory statements with reckless disregard for their
truth or falsehood: Second, we conclude, contrary to the trial court's finding, that the plaintiff
4
Q: Did you give an exclusive interview to NBC News regarding this? A: I don't know
about exclusive, but I gave an interview, I believe. Q: And did you appear on television?
A: I don't remember when, a year later or something there was some blurb, that was it. Q:
A year later, what, from when you gave your interview? A: Whenever I think it happened -you asked me if I gave an interview, and I think it was a year later or something there was a
blurb, a short blurb, that's all I know. Montgomery Depo. at 149-150:23-2:1-10. Q: Why
did you agree to give this interview? A: I believe it was my legal advice from my attorney
at the time. 151:5-7.
25
produced sufficient evidence ... that the defendants ... uttered a defamatory falsehood ... with
actual malice, i.e., with knowledge that such accusation was false or with reckless disregard of
whether it was false or not. Southern Air Transport, Inc., at 928. One of several factors that court
identified was that the credibility of this informer was greatly suspect. Id. at 928. Another factor
was that the news broadcast emphasized factors supporting the credibility of the informant but
withheld information which tended to undermine his credibility. Id. at 928-929.
In the Florida case of Cape Publications, Inc. v. Adams, 336 So.2d 1197 (Fla. 4th DCA
1976), the Court found that a newspaper exhibited reckless disregard of whether charges were true
or false, that is, it published the articles with a high degree of awareness of the probable falsity of
the statements. The court found reckless disregard in that the two articles were written (i)n the
face of all those red flags flying. One of the red flags was that a major source had a running feud
with the plaintiff.
Here, as in Cape Publications, Inc., the Defendants knew that all of the sources they relied
upon had either a running feud with the Plaintiff in the form of acrimonious litigation or strong
motives to shift responsibility for their own actions to the Plaintiff. Here, as in Cape Publications,
Inc., the Defendants knew that their stories were highly improbable. The Defendants knew that the
sources they relied upon valued Plaintiffs software at $100 million and were litigating to get
ownership of it, that private citizens cannot order transatlantic airplane flights barred from the
United States or shot down, knew that government national security experts would interpret
intelligence data from multiple sources and that the Plaintiff did not interpret the data he collected,
knew that the French at that time were opposed to President Bushs foreign policy and no access to
the dis-encryption technology at issue, and other actions. Nor did the government prosecute Mr.
Montgomery or even ask for a refund from his employers. PSDMF at 82.
26
In the Amended Complaints paragraphs 53 and 68 through 95, the Plaintiff extensively
pleads actual malice by the Defendants, including that the Defendant Risen was warned, according
to his own admission and confession, that The New York Times and other journalistic outlets
would not publish many of these claims, ignored many warning signs that his claims about
Montgomery were obviously false and/or preposterous, ignored contradictory information that was
readily available, and ignored the Plaintiffs warnings that the statements were false. The evidence
Plaintiff references and his affidavits set forth with great specificity the actual malice, both in terms
of direct and circumstances evidence. Exhibit C to the Amended Complaint 7c, 7h, 38, 61.
PSDMF at 79.
Furthermore, actual malice can be shown by a reckless disregard for the truth see,
Reader's Digest Assn. v. Superior Court 37 Cal.3d 244, 257 (1984) that the writer ignored
warning signs that the statements are false, failed to thoroughly investigate, and failed to conform
to journalistic procedures and standards. Here, as set forth in PSDMF, and in this brief, the
published statements of Risen and the other Defendants went far beyond and exaggerated to the
extreme anything that was said in prior publications, public documents, or through any named
sources. Simon and Shuster, the first publisher saw this and threw Risen out the door. He later
conned a second publisher, Houghton Mifflin, to publish his book without checking one single
alleged fact, much less responding to Plaintiff counsels request for corrections or retractions in
two letters pursuant to Florida Statute 770.01.
Meeting the legal test for actual malice, Defendants ignored obvious warning signs that
their defamatory accusations were false. Defendant Risen clearly admits that he does not know if
his accusations are true, admitting to Inside The New York Times Book Review in an interview
that it is very difficult to tell what is actually true. Am. Compl. 72. PSDMF at 107. So
knowing that he could not be certain at a minimum that what he was reporting was true, Defendant
27
Risen recklessly published it anyway. Id. Claiming that a private individual who was an unknown
contractor manipulated the President of the United States to nearly shoot down passenger aircraft is
just preposterous. Am. Compl. 75. Defendants ignored obvious warnings that their sources were
shifting the blame for their own bad decisions and failures onto a private individual as a scapegoat.
Defendants knew that their sources were the very same U.S. Government officials and/or personnel
would be blamed if they could not shift the blame to Dennis Montgomery. Am. Compl. 81.
Moreover, the Defendants recount conversations in the Oval Office of the White House and in the
chain of command of the National Command Authority which they could not possibly know or
believe that they knew. Moreover, the Defendants publish accusations that the U.S. Government
shared classified intelligence, sources and method with a private French firm at a time when France
was hostile to George W. Bushs foreign policy and in bed with commercial interests in Iraq and
throughout the Middle East.5
The Defendants should have heeded the obvious warnings that these reports were and are
preposterous. Am. Compl. 86-90. Moreover, the Defendants ignore warnings that the U.S.
Government kept re-hiring Dennis Montgomery and his employers through various contracts and
various businesses as evidence that his software and technology was valuable and worked. Am.
Compl. 83.
At Plaintiffs redirect at deposition, he testified under oath that there would be virtually no
possible way that the French would even have access to anything because U.S. officials did not
trust them. Q: With regard to the French, based on your experience in working for American
Intelligence agencies, do they trust the French? A: No, they made fun of them all the time. Said
they couldn't find anything. Q: Do you know whether or not the NSA and CIA ever spied on the
French? A: Absolutely. Q: Why was that? A: They didn't trust them. Q: So is it your opinion -excuse me, based on your experience, would the CIA, NSA or any intelligence agency ever have
given the French access to your software? A: Absolutely not, and there were clear license
agreements that prohibited any reverse engineering of the technology at all. Montgomery Depo. at
286-87:14-25, 1-5.
5
28
Finally, the Defendant James Risen actually blackmailed the Plaintiff with the defamatory
statements, attempting to get Dennis Montgomery to provide classified information and
documents, including John Brennans emails. When warned by the Plaintiff that the reports he
proposed to publish were false, Defendant Risen responded by asking to publish instead classified
information which he wanted the Plaintiff to provide. PSDMF at 81. And, Defendants
intentionally omitted most of Mr. Montgomerys side of the story and was relegated only to
conclusory denials, undercutting Plaintiffs credibility. PSDMF at 102.
Thus, Defendant Risen published the defamatory attacks on the Plaintiff knowingly and
intentionally to pressure Dennis Montgomery into, Risen hoped, disclosing classified information
in order to dissuade Defendants from publishing false attacks against him. The Defendants
published the defamation knowingly and intentionally to punish and pressure Dennis Montgomery
for not disclosing classified U.S. government secrets to Defendant Risen.
Evidence of a lack of an effective editorial process is used as objective evidence that
collectively supports a finding of constitutional malice. See Warford v. Lexington Herald-Leader
Co., 789 S.W.2d 758 (Ky. 1990). In Warford, the court delineated numerous items of objective
evidence that collectively supported a finding of constitutional malice in the case of a college
basketball recruiter defamed by charges of recruiting improprieties. Warford, 789 S.W.2d at 772.
The defendant reporters made minimal efforts to verify the credibility of their source, a student
athlete, despite the plaintiffs denials just prior to publication and the plaintiff's request that the
reporter contact several individuals, including the source's parents, friends, and high school
coaches. Id. The defendants also failed to contact anyone at the plaintiffs university, including his
boss, prior to the original publication. Id. Moreover, the defendants failed to conduct any further
investigation prior to publication of the reprint, despite denials by the plaintiff and others. Id. In
addition, the defendants conceded they were aware of the seriousness of the charge and the
29
potential harm to the plaintiff from the pervasive dissemination to all future college and university
employers. Id. Furthermore, the defendants delayed in contacting the plaintiff until just prior to the
original publication despite the absence of a time deadline, permitting a jury to conclude the
defendants "were committed to running the story without regard to its truth or falsity." Id. Finally,
the defendants transformed the source's ambiguous statement into "the most potentially damaging
alternative" creating a "jury question on whether the publication was indeed made without serious
doubt as to its truthfulness." Id. at 772-73 (quoting Rebozo v. Wash. Post Co., 637 F.2d 375, 382
(5th Cir.)).
Actual malice can also be proved by circumstantial evidence. Evidence of negligence, of
motive and of intent may be adduced for the purpose of establishing, by cumulation and by
appropriate inferences, the fact of a defendant's recklessness or of his knowledge of falsity.
Reader's Digest Assn. v. Superior Court 37 Cal.3d 244, 257 (1984).
In proving constitutional malice, a plaintiff may use evidence of all of Defendants acts in
in order to establish that constitutional malice existed. Goldwater v. Ginzburg, 414 F.2d 324, 342
(2d Cir. 1969) (the court properly instructed the jurors that they should consider all the evidence
concerning appellants' acts and conduct in publishing Fact in deliberating upon whether Defendants
published with actual malice); Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 668
(1989). In Harte-Hanks, the U.S. Supreme Court held that it is clear that the conclusion
concerning the newspaper's departure from accepted standards and the evidence of motive were
merely supportive of the court's ultimate conclusion that the record "demonstrated a reckless
disregard as to the truth or falsity of [defendant]'s allegations and thus provided clear and
convincing proof of 'actual malice' as found by the jury. A plaintiff is entitled to prove the
defendant's state of mind through circumstantial evidence and it cannot be said that evidence
concerning motive or care never bears any relation to the actual malice inquiry. Harte-Hanks,
30
491 U.S. at 668 (internal citations omitted) (emphasis added).

Relying on circumstantial evidence to prove constitutional malice has become the proper
method. See, e.g., Khawar v. Globe Int'l, Inc., 965 P.2d 696, 709 (Cal. 1998) ("To prove this
culpable mental state, the plaintiff may rely on circumstantial evidence, including evidence of
motive and failure to adhere to professional standards."), cert. denied, 526 U.S. 1114 (1999);
Sprague v. Walter, 656 A.2d 890, 907 (Pa. Super. Ct. 1995) ("Any competent evidence can be used
to establish actual malice."), Appeal denied, 670 A.2d 142 (Pa. 1996).
State and federal courts have undoubtedly recognized that it would . . . be rare for a
defendant . . . to admit to having had serious, unresolved doubts . . . Requiring proof of
recklessness without being able to adduce proof of the underlying facts from which a jury could
infer recklessness . . . would limit successful suits to those cases in which there is direct proof by
a partys admission of the ultimate fact. Eastwood v. Nat'l Enquirer, Inc., 123 F.3d 1249, 1253
(9th Cir. 1997)(emphasis added) ("As we have yet to see a defendant who admits to entertaining
serious subjective doubt about the authenticity of an article it published, we must be guided by
circumstantial evidence. By examining the editors' actions we try to understand their motives.");
Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563, 1569 (D.C. Cir. 1984) ("The plaintiff need not
obtain any admission of fault from the defendant."), vacated on other grounds, 477 U.S. 242
(1986); Goldwater, 414 F.2d at 343. If this were not the law, "mere swearing could, as a matter of
law, defeat any action to which the New York Times principles are applicable." Guam Fed'n of
Teachers v. Ysrael, 492 F.2d 438, 439 (9th Cir. 1974), cert. denied, 419 U.S. 872 (1974).6
[M]ost authorities suggest that a failure to retract, in conjunction with other circumstances, may
be used to establish the requisite level of [constitutional] malice." John C. Martin, Comment, The
Role of Retraction in Defamation Suits, 1993 U. Chi. Legal F. 293, 295 (1993); accord,
e.g., Tavoulareas v. Piro, 817 F.2d 762, 794, 260 U.S. App. D.C. 39 (D.C. Cir. 1987) (en banc)
(refusal to retract can be evidence of actual malice); Golden Bear Distrib. Sys. of Tex., Inc. v.
Chase Revel, Inc., 708 F.2d 944, 950 (5th Cir 1983), abrogated on other grounds by Hiller v. Mfrs.
6
31
In short, while Plaintiff has made more than a prima facie showing of actual malice, given
the complex facts involved in this case, and at a minimum, their disputed nature, this issue must be
given to the jury to decide and not summarily taken away from its consideration.
D. The Fair Reporters Privilege Does Not And Cannot Apply
The Defendants do not and cannot qualify for the Fair Reporters Privilege and do not
come within its terms.
The news media has been given a qualified privilege to accurately report on the
information they receive from government officials. Ortega v. Post-Newsweek
Stations, Fla., Inc., 510 So.2d 972 (Fla. 3d DCA), rev. denied, 518 So.2d 1277
(Fla.1987). This privilege includes the broadcast "of the contents of an official
document, so long as their account is reasonably accurate and fair", Ortega, 510
So.2d at 976 (quoting Lavin v. New York News, Inc., 757 F.2d 1416, 1420 (3d
Cir.1985)), even if the official documents contain erroneous information. Id.
Woodard v. Sunbeam Television Corp., 616 So.2d 501, 502 (Fla. App. 3 Dist. 1993) (emphasis
added). It must convey to the persons who read it a substantially correct account of the
proceedings." Id. at 503 (emphasis added).
CBS admits that Florida's fair reporting privilege extends to the publication of
information contained in public records only if the broadcast is a "reasonably
accurate and fair" description of the contents of the records. See Woodard, 616
So.2d at 502; Ortega v. Post-Newsweek Stations, Fla., Inc., 510 So.2d 972 (Fla. 3d
DCA 1987). In this case, there is nothing in the record to indicate that the trial court
compared the broadcast at issue with the public records and found the broadcast to
be an accurate description of the records as a matter of law. Cf. Stewart v. Sun
Sentinel Co., 695 So.2d 360 (Fla. 4th DCA 1997) (affirming summary judgment in
favor of the press because the trial court compared the publication at issue with the
public records and found the publication to be an accurate and fair reflection of the
contents of the public records).
Heekin v. CBS Broadcasting, Inc., 789 So.2d 355 (Fla. App., 2001) (emphases added).
Here, however, the Defendants defamation dramatically misrepresents the court records,
Prod. Research Grp. of N. Am., Inc., 59 F.3d 1514, 1520-21 (5th Cir. 1995); Restatement (Second)
of Torts 580A, cmt. d (1977) ("Under certain circumstances evidence [of a refusal to retract a
statement after it has been demonstrated to be false] . . . might be relevant in showing
recklessness at the time the statement was published.") (emphasis added).
32
past news reporting, and government records which they claim to rely upon, as analyzed above.
The Book does violence to the overall content of the records and the sources, by taking some
details cherry-picked out of context and ignoring others. It is not a fair report.
For example, the Book reports Trepps self-serving claims in the middle of litigation that
the Plaintiffs work was fraudulent, but fails to report that Trepp at that very time was fighting in
court to get control of Plaintiffs software, which he valued in court at $100 million in the same
court records that the Defendants claim to report from. The Book reports disparaging remarks by
Michael Flynn without reporting that Flynn was also trying to grab the software himself in a
bankruptcy adversary proceeding. Thus the Defendants fail to report that Trepps and Flynns
comments were made to gain leverage in litigation and sharp contradicted their actions in court.
PSDMF at 17 (Trepps allegations were made to gain leverage in litigation and could not be
believed as an unbiased or credible source.); 28, 29; see also Montgomery Depo. at 104:7-19 (Q:
He [Flynn] had made statements to the effect that: You were a fraud and a con man; is that correct?
A: After I fired him in 2007.).
Meanwhile, it is not enough for the Defendants to merely claim that they reviewed official
records. This Court, through a jury at trial, must evaluate those records:
Second, without consideration of the bankruptcy court's order, the trial court could
not apply the "fair reporting privilege." Thus, it could not have been a basis for the
dismissal of the second amended complaint. Heekin v. CBS Broad. Inc., 789 So.2d
355 (Fla. 2nd DCA 2001). ... For these reasons, we reverse the dismissal and
remand the case to the trial court for reinstatement of the plaintiff's second
amended complaint.
Straub v. Lehtinen, Vargas & Riedi, P.A., 980 So.2d 1085, 1087 (Fla. App., 2007).
Our comparison of the defamatory information with the official documents or press
releases issued by the sheriff's office leads us to conclude that there are no material
differences. Accordingly, the trial court was correct in disposing of these claims.
Stewart v. Sun Sentinel Co., 695 So.2d 360, 362 (Fla.App. 4 Dist., 1997)
33
A true fair report on national security threats and decisions would explore how
government officials carried out their duties and how well or ill the systems of government worked.
In contrast to what journalistic reporting would look like, Chapter 2 of the Book does not attempt
to report on different points of view about what happened and why, with two or more sides to the
story. Instead, Defendants merely engage in a political defamatory hatchet job of the Plaintiff by
presenting one-sided conclusions taken out of context as being absolute fact.
Here, Defendant Risen has first-hand knowledge that sources within the government
attempted to shift responsibility for their own actions to a private citizen. Fair reporting would
include the Defendants reporting on the far-larger and infinitely more interesting story that
government officials were seeking to avoid responsibility for their official decisions by shifting it
to a private citizen. Chapter 2 of the Book presents the astonishing accusation that the President of
the United States George W. Bush and his foreign policy leadership team are not responsible for
government decisions a seriously ill private individual is. That is actually a seriously
newsworthy story.
Fair reporting would also have to directly report and explain the motivations of Defendants
sources to lie and cover for their own mistakes and shortcomings by trying to pass the hot potato to
Montgomery. Without reporting, disclosing, and explaining the biases and lack of credibility of
Risens sources, Chapter 2 cannot quality for the fair reporting privilege.
Fair reporting would demand also reporting that Plaintiff Montgomery never negotiated
with the government Warren Trepp did nor received payment from the government.
Fair reporting would require reporting that the government has never demanded a refund,
return, or repayment of any funds paid to eTreppid or BLIXWARE, officially complained, nor
sought to debar (black list) any company for allegedly defrauding the government, as well as
sought to remove Plaintiffs top secret security clearance.
34
E. Plaintiffs Other Tort Claims Remain Unaffected

Because Plaintiff Montgomerys defamation claims survive the summary judgment stage as
there are disputed material facts that must be given to a jury, summary judgment must be denied as
to Plaintiffs other tort causes of action. Neither the Defendants motion for summary judgment nor
motions to dismiss raised any other challenges to the Plaintiffs Fourth or Fifth Causes of Action. 7
IV.
CONCLUSION
For the foregoing reasons, Defendants motion for summary judgment must be respectfully
denied, and in the interest of due process and justice this case must go to trial before a jury of
Mr. Montgomerys peers. Plaintiff is seriously ill and destitute and this case must respectfully be
tried commencing on the currently scheduled date of March 21, 2016.
Dated: January 13, 2016
Respectfully Submitted,
The issue of the alleged software that Mr. Montgomery does not know for certain he had, and
which he could not have produced in any event, has been discussed in pending pleadings, which
are incorporated by reference, as well as in the appended transcript of the hearing before Magistrate
Goodman of January 5, 2016, Exhibit 1. Notwithstanding Plaintiffs objections to this Court, which
are pending, particular attention should be paid to pages 138 through 151 of this transcript where
Magistrate Judge Goodman advises that he may vacate or modify prior orders about the software
and recognizes that the book and media publications about the book entail much more, as alleged
in the Amended Complaint, than the non-meritorious claim defense by the Defendants that the
software does not work, Exhibit 1. In reality, whether the software can be produced or does not
work is a non-issue, particularly since according to the CIA it cannot and will not be produced as it
is likely classified. Indeed, the so-called expert designated by Defendants at the twelfth hour does
not even have a security clearance to inspect and analyze any software. And, the issue is the CIAs
analysis of Mr. Montgomerys dis-encryption technology, as the intelligence agency was the
analyst and responsible for assessing terrorist threats, not Plaintiff. The CIA and the other
intelligence agencies are far more sophisticated than any supposed non-certified expert chosen by
Defendants. Thus, it was not Mr. Montgomery who perpetrated the biggest hoax in American
history, nor is he responsible by himself for the president ordering the potential shoot down of
civilian airlines, but the intelligence agencies. And, there is no credible evidence to suggest that his
occurred in any event, as set forth above. See Objection to Limited Portions of Magistrate Judges
Order [Dkt. # 143], Supplement to Objection [Dkt. # 144], Objection of Magistrate Judges Order
to District Court and Request to Stay [Dkt. # 164], Supplement to Objection of Magistrate Judges
Order to District Court and Request to Stay [Dkt. # 188]; see also PSDMF at 50, 59, 60, 61; see
also Exhibit 1.
35
/s/ Larry Klayman

Larry Klayman, Esq.
FL Bar No. 246220
The Klayman Law Firm
7050 W Palmetto Park Rd.
Suite 15-287
Boca Raton, Florida 3343
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this January 13, 2016 a true and correct copy of the
foregoing Opposition was filed with the Court through the Courts Electronic Case Filing system,
and will be delivered electronically to all counsel for the Defendants who have entered an
appearance in this case through the ECF system, including:
Sanford Lewis Bohrer
Brian Toth
Holland & Knight, LLP Suite 3000
701 Brickell Ave Miami, Florida 33131
Email: sbohrer@hklaw.com
Email: brian.toth@hklaw.com
Laura R. Handman
Micah Ratner
Davis Wright Tremaine LLP
1919 Pennsylvania Ave., N.W., Suite 800
Washington D.C. 20006-3401
Email: laurahandman@dwt.com
Email: MicahRatner@dwt.com
Attorneys for Defendants
/s/ Larry Klayman
Larry Klayman, Esq.
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Montogmery v. Risen #233 P Opp To SJ Motion

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Case 1:15-cv-20782-JEM Document 233 Entered on FLSD Docket 01/13/2016 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT

ORAL ARGUMENT REQUESTED BY

PLAINTIFFS MEMORANDUM IN OPPOSITION TO

Harcourt Publishing Company (HMHPC), and Houghton Mifflin Harcourt Company

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Defendants assert as a fact, in their own voice that Montgomerys dis-encryption

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491 U.S. at 668 (internal citations omitted) (emphasis added).

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E. Plaintiffs Other Tort Claims Remain Unaffected

Dated: January 13, 2016

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/s/ Larry Klayman

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