IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DOUGLAS HANDSHOE PLAINTIFF
VS. CIVIL ACTION NO. 1:15-cv-106-LG-RHW
THE HALIFAX HERALD LIMITED AND JOHN DOE DEFENDANT
ANSWER AND DEFENSES
(any and all formatting errors are the result of pasting text--apologies)
Reserving first hereby, and not waiving, each and every defense, objection and matter in avoidance presently applicable, or which may arise hereafter, comes now The Halifax Herald Limited (hereinafter “The Chronicle Herald”), by counsel, and, in response to the allegations of the Complaint, or to so many thereof as the Defendant is obliged to response, would very respectfully show unto this Honorable Court the following:
FIRST DEFENSE
The Complaint fails to state any claim against The Chronicle Herald upon which relief can be granted.
SECOND DEFENSE
The Plaintiff has not complied with the process requirements of the treaty law extant between
the Commonwealth of Canada and the United States of America, more particularly The Convention
on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
The process which Plaintiff attempted was not authorized and was invalid.
THIRD DEFENSE
The process required by
The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters was not served in compliance therewith, and service
was, therefor, not authorized and thus was invalid.
FOURTH DEFENSE
The Plaintiff also has not complied with the substantive or the procedural requirements of
Mississippi Code Section 13-3-57. The process which Plaintiff attempted was not authorized and
is invalid.
FIFTH DEFENSE
That process contemplated by Mississippi Code Section 13-3-57, when and if authorized,
must be served in compliance therewith. The Plaintiff’s attempted service of process did not comply
with the substantive and/or the procedural requirements of Mississippi Code Section 13-3-57.
SIXTH DEFENSE
The Plaintiff may have failed to join a necessary party.
SEVENTH DEFENSE
Plaintiff has not pleaded any facts sufficient to authorize bringing a civil action in this District or Division; venue is improper.
EIGHTH DEFENSE
The “claim” asserted is barred by Miss. Code Section 15-1-35.
NINTH DEFENSE
Plaintiff lacks standing to assert the claim he has asserted against The Chronicle Herald.
TENTH DEFENSE
The Chronicle Herald owed the Plaintiff no such “duty” as Plaintiff has concluded exists or
attempted to allege.
ELEVENTH DEFENSE
The Chronicle Herald has not breached any actual duty at law respecting any matter of which
the Plaintiff complains.
TWELFTH DEFENSE
Plaintiff has not specifically alleged wherein any words used concerning the Plaintiff himself
was factually false.
THIRTEENTH DEFENSE
Plaintiff asserts, in conclusory fashion, that the blog he calls “Slabbed New Media, LLC”
(hereinafter the blog “Slabbed”), a non-party, published or reported in this District and Division
matter which is not specifically described in the Complaint. Plaintiff further alleges, and in like
fashion, that certain of that specifically undescribed, but allegedly reported matter (which was
allegedly published on a date or dates likewise not specified in the Complaint) was “categorized”
thereafter by The Chronicle Herald. And Plaintiff further asserts, in like manner, that the category
into which the blog’s reporting was placed by The Chronicle Herald was what plaintiff contends was
“homophobia,” but all without specifying the particular form or forms of “homophobia” to which
Plaintiff is referring, and without even generally describing to what unspecified, undated reporting
by Slabbed he is alluding. Plaintiff’s conclusions and any “allegations” intermingled therewith are
not actionable as libels stated of the Plaintiff himself by The Chronicle Herald.
FOURTEENTH DEFENSE
The Plaintiff avers or implies that The Chronicle Herald, as a Canadian newspaper, owed to
the Plaintiff himself a legal duty to conduct one or more independent, conclusive investigations into
the alleged merits of each of five separate, but unnamed, civil actions allegedly filed by others
against the Plaintiff himself and, apparently, his defenses thereto, these civil actions filed somewhere
(not alleged) on unspecified dates, in unspecified courts in the Commonwealth of Canada or in the
State of Louisiana. However, the Plaintiff does not allege: any specific allegation anyone made
about him personally in any one or more of those five “suits,” or that any specific allegations were
made against him personally in any of those “suits,” or that any such unspecified allegations (if made
against him in any of those five “suits”) was factually false or wherein it was false, or that The
Chronicle Herald itself had originally made any of those unspecified allegations or had itself filed
any of those five “suits.” Plaintiff’s conclusions and any “allegations” intermingled therewith are
not actionable as libels stated of the Plaintiff himself by The Chronicle Herald.
FIFTEENTH DEFENSE
The Plaintiff avers, in conclusory fashion, that the five unidentified suits filed against him
personally were filed not by The Chronicle Herald but, by individual persons who obviously are not
named parties to the instant civil action, and that those several suits by others, allegedly brought
against him personally, were “designed to harass and defame Plaintiff.” Even if that were true, the
Plaintiff does not aver, not even in a conclusory manner, that The Chronicle Herald designed to
harass or defame the Plaintiff himself thereby; nor does he allege that the Defendant filed any of
those five “suits” against him. Plaintiff’s conclusions and any “allegations” intermingled therewith
are not actionable as libels spoken of the Plaintiff himself by The Chronicle Herald.
SIXTEENTH DEFENSE
Those individual persons, to whom the Complaint alludes as having brought “five” suits
against him, had individual duties to determine the existence of good faith bases in fact and in law
allegedly underlying any civil actions they actually brought against the Plaintiff himself in the courts
of the United States and to do so before they filed those suits. The Chronicle Herald, however, was
under no such duty as bound Plaintiff’s adversary litigants. And The Chronicle Herald owed no
such or any other “duty” to the Plaintiff himself to preinvestigate (before reporting thereon) the
ultimate merits of any suits those persons brought against the Plaintiff in the courts of the United
States concerning any unspecified (in his complaint) allegations any of those individuals actually
made or implied therein against the Plaintiff himself. Moreover, these unnamed persons’ allegations
against the Plaintiff himself, if any, were themselves protected by the litigation privilege so that no
defamation claims could be brought against those persons by the Plaintiff, unless their litigation
privilege was overcome by Plaintiff in respect of each of those five “suits.” Moreover, The
Chronicle Herald’s own reporting on those privileged proceedings was and is separately privileged.
The Chronicle Herald was privileged to report upon activities occurring in proceedings covered by
a separate litigation privilege.
SEVENTEENTH DEFENSE
Those individual persons to whom the Complaint alludes as having brought “five” suits
against him, had individual duties to determine whether there were proper bases in fact and in law
underlying other suits, if any, brought against the Plaintiff himself in the courts of the
Commonwealth of Canada. The Chronicle Herald, however, as a newspaper reporting current
events, had no such investigatory “duty” to the Plaintiff himself as to any suits brought by others
against the Plaintiff elsewhere or as to any unspecified allegations any of those individuals made
therein and elsewhere against the Plaintiff here. The Chronicle Herald was privileged to report on
contemporaneous news.
EIGHTEENTH DEFENSE
Whether or not the judgment predicated thereupon was enforced in Canada or was
enforceable elsewhere after its rendition, the Supreme Court of Nova Scotia nevertheless made a
finding of fact in its Decision dated February 14, 2014, in Trout Point Lodge, et al. Handshoe, which
recited in material part the following:
[6] The present and former actions are . . . a response to Mr.
Handshoe’s defamatory actions conducted through the Internet
[i.e. by “blogging”]. Justice Hood summarized Mr. Handshoe’s
activities:
. . . .
[7] . . . The [defamatory] statements contained anti-gay rhetoric
and homophobic content.
. . . .
[10] • Mr. Handshoe has continued to repeatedly publish
words referring to the personal [i.e., individual] [male]
plaintiffs as “[redacted],” “[redacted],” “[redacted],”
“[redacted],” “[redacted],” and “[redacted].”
• Mr. Handshoe republished the following: “I’ll add
here, in case it is not self-evident, that I built dossiers on all
the players in the social group and I intend through time to
roll out each and every one in excruciating detail. . . . The
reason for this is that this band of gay men act as a unit that
will also scatter like [redacted] when the heat is applied.”
• . . . Handshoe referred to . . . the Plaintiffs as “the
[redacted].”
Id. (Emphasis added.) It is incontrovertible that such a finding was made in the courts of the
Commonwealth of Canada and that the Decision was legally issued and the Court’s act legally done
under the laws of the Commonwealth of Canada. The Supreme Court of Nova Scotia found the
Plaintiff had made homophobic or anti homosexual utterances in the words quoted hereinabove.
The findings of fact within this Decision by the Supreme Court of Nova Scotia and published
there by that court, standing alone, were an ample factual basis for any opinion contemporarily
published in Canada to the effect that Plaintiff had so comported himself and/or so operated his
business as to cause reasonable inferences that he was and had been (a) a blogger, and (b) an “anti
homosexual blogger,” (emphasis added) which, if a mere opinion, and/or if factual or substantially
true, cannot be a libel actionable by the Plaintiff. Moreover, The Chronicle Herald is privileged to
publish contemporaneous reports on court proceedings. Fair comment on these court proceedings
in which there is a public interest is not actionable.
NINETEENTH DEFENSE
Heretofore, the Plaintiff wrote to a sitting judge of this District Court that certain named
individuals (persons whom Plaintiff had earlier characterized as homosexuals) were “anonymous
[redacted]” (Civil Action no. 1:13-cv-00254-HSO-RHN, ECF No. 10, P. 2), indicating his personal
animus against persons whom he also claimed were homosexuals. Such statements on the public
record of this District Court bespeak both a general and a specific, anti-homosexual animus on the
part of Plaintiff.
TWENTIETH DEFENSE
This civil action was facetiously brought; Plaintiff himself appears to court the public to
conclude that he is, inter alia, an “anti homosexual blogger,” not a pro homosexual blogger,
wherefor no public opinion formed consistent with his designs or posturing to that effect can
plausibly constitute his sustaining a cognizable “injury” or “loss” proximately caused by any true or
substantially true utterance to that same effect.
TWENTY-FIRST DEFENSE
The phrase “anti homosexual blogger” is not a statement constituting defamation per se under
settled Mississippi law.
TWENTY-SECOND DEFENSE
The phrase “anti homosexual blogger” is not defamatory whether in the abstract or as applied
to the Plaintiff himself whether in an opinion or in any factual statement which is true or
substantially true.
TWENTY-THIRD DEFENSE
The words complained of and attributed to the defendant are protected by Freedom of the
Press as guaranteed by the First Amendment to the Constitution of the United States.
TWENTY-FOURTH DEFENSE
The words complained of and attributed to the defendant are protected by Freedom of Speech
as guaranteed by the First Amendment to the Constitution of the United States.
TWENTY-FIFTH DEFENSE
Any statement actually written by The Chronicle Herald about the Plaintiff himself and
concerning which Plaintiff has not specified wherein it was factually false as concerning him is not
actionable as a “libel.”
TWENTY-SIXTH DEFENSE
Any factual statement actually written by The Chronicle Herald about the Plaintiff himself
which is substantially true is not actionable.
TWENTY-SEVENTH DEFENSE
Plaintiff has not averred any statement allegedly written about himself by The Chronicle
Herald that was of a nature that the Plaintiff himself has regarded as arising to the level of a nonactionable
“insult” and therefore such clearly could not constitute any actionable “libel,” a greater
offense that offering an insult.
TWENTY-EIGHTH DEFENSE
Plaintiff’s mere conclusory averments that unspecified false statements were written about
him personally, or that even specified statements allegedly written concerning him personally were
“false,” does not suffice to show Plaintiff himself was libeled without his explicitly pleading wherein
what was said about him was entirely false and, thus, was not substantially true.
TWENTY-NINTH DEFENSE
The Chronicle Herald reported the news as it occurred and fairly commented upon it, as was
its right and privilege.
THIRTIETH DEFENSE
The Plaintiff was and is a public figure, and he voluntarily became such.
THIRTY-FIRST DEFENSE
The Plaintiff was and is a vortex public figure, and he voluntarily became such.
THIRTY-SECOND DEFENSE
The Plaintiff has not alleged that, or wherein, The Chronicle Herald has acted toward the Plaintiff himself out of an animus of actual malice toward the Plaintiff personally.
THIRTY-THIRD DEFENSE
None of what the Plaintiff alleges was written about him personally by The Chronicle Herald
is actionable under the laws of the United States of America or of the State of Mississippi which
laws are, rather, directly repugnant to the “claim” purportedly made in this civil action.
THIRTY-FOURTH DEFENSE
The Plaintiff did not properly demand before filing this civil action any retraction of the allegedly libelous statement he has pleaded as being allegedly written about the Plaintiff himself; because the Plaintiff did not specify wherein the alleged falsity of any words allegedly written about him personally were false in fact but merely offered a conclusory, non-specific, general assertion of
“falsity” which does not suffice.
THIRTY-FIFTH DEFENSE
ANSWER
I. PARTIES
1. The allegations of paragraph 1 of the Complaint are admitted, save and except any
conclusory implication meant to be conveyed by the adjective “investigative” as modifying the noun
“weblog.” The conclusions set forth in paragraph 1 of the Complaint require no response.
2. The Halifax Herald Limited is organized under and by virtue of the laws of the Commonwealth of Canada, a sovereign treaty signatory, with the United States of America, to
The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and the Halifax Herald Limited is located at the physical address alleged in Halifax, Nova Scotia. Any allegation in paragraph 2 which is not explicitly admitted is denied, including Plaintiff’s
characterization that The Chronicle Herald so stands in relation to the Plaintiff as to be fairly
characterizable as a “defendant” concerning any “fact” pleaded in the Complaint. (The Chronicle
Herald was that phrase herein for the sake of brevity only and without conceding anything related
to the point here made.) The conclusions set forth in paragraph 2 of the Complaint require no
response.
3. The conclusory assertions of paragraph 3 of the Complaint require no response.
II. “JURISDICTION AND VENUE”
4. The allegations of paragraph 4 of the Complaint are denied. The conclusions set forth in paragraph 4 of the Complaint require no response.
5. The allegations of paragraph 5 of the Complaint are denied. The conclusions set forth in paragraph 5 of the Complaint require no response.
6. The Chronicle Herald does not dispute that the Plaintiff is seeking a recovery in excess of $75,000 in actual damages, exclusive of interest and costs, plus punitive damages. The Chronicle Herald denies each and every other allegation of paragraph 6 of the Complaint. The conclusions set forth in paragraph 6 of the Complaint require no response.
III. FACTUAL BACKGROUND
7. The allegations of paragraph 7 of the Complaint, were those true as stated, are not the
responsibility of The Chronicle Herald, and the Defendant is not liable to Plaintiff therefor.
Nevertheless, The Chronicle Herald demands that the Plaintiff provide strict proof of each and every
fact alleged in paragraph 7 of the Complaint because The Chronicle Herald specifically denies any
allegation thereof which Plaintiff purports is chargeable to The Chronicle Herald, and it denies
generally every other allegation of paragraph 7 of the Complaint. The conclusions set forth in
paragraph 7 of the Complaint require no response.
8. The allegations of paragraph 8 of the Complaint, were those true as stated, are not the
responsibility of The Chronicle Herald, and the Defendant is not liable to Plaintiff therefor.
Nevertheless, The Chronicle Herald demands that the Plaintiff provide strict proof of each and every
fact alleged in paragraph 8 of the Complaint because The Chronicle Herald specifically denies any
allegation thereof which Plaintiff purports is chargeable to The Chronicle Herald, and it denies
generally every other allegation of paragraph 8 of the Complaint. The conclusions set forth in
paragraph 8 of the Complaint require no response.
9. The allegations of paragraph 9 of the Complaint, were those true as stated, are not the
responsibility of The Chronicle Herald, and the Defendant is not liable to Plaintiff therefor.
Nevertheless, The Chronicle Herald demands that the Plaintiff provide strict proof of each and every
fact alleged in paragraph 9 of the Complaint because The Chronicle Herald specifically denies any
allegation thereof which Plaintiff purports is chargeable to The Chronicle Herald, and it denies
generally every other allegation of paragraph 9 of the Complaint. The conclusions set forth in
paragraph 9 of the Complaint require no response.
10. The allegations of paragraph 10 of the Complaint, were those true as stated, are not
the responsibility of The Chronicle Herald, and the Defendant is not liable to Plaintiff therefor.
Nevertheless, The Chronicle Herald demands that the Plaintiff provide strict proof of each and every
fact alleged in paragraph 10 of the Complaint because The Chronicle Herald specifically denies any
allegation thereof which Plaintiff purports is chargeable to The Chronicle Herald, and it denies
generally every other allegation of paragraph 10 of the Complaint. The conclusions set forth in
paragraph 10 of the Complaint require no response.
11. The allegations of paragraph 11 of the Complaint, were those true as stated, are not
the responsibility of The Chronicle Herald, and the Defendant is not liable to Plaintiff therefor.
Nevertheless, The Chronicle Herald demands that the Plaintiff provide strict proof of each and every
fact alleged in paragraph 11 of the Complaint because The Chronicle Herald specifically denies any
allegation thereof which Plaintiff purports is chargeable to The Chronicle Herald, and it denies
generally every other allegation of paragraph 11 of the Complaint. The conclusions set forth in
paragraph 11 of the Complaint require no response.
12. The allegations of paragraph 12 of the Complaint, were those true as stated, are not
the responsibility of The Chronicle Herald, and the Defendant is not liable to Plaintiff therefor.
Nevertheless, The Chronicle Herald demands that the Plaintiff provide strict proof of each and every
fact alleged in paragraph 12 of the Complaint because The Chronicle Herald specifically denies any
allegation thereof which Plaintiff purports is chargeable to The Chronicle Herald, and it denies
generally every other allegation of paragraph 12 of the Complaint. The conclusions set forth in
paragraph 12 of the Complaint require no response.
13. The actual pertinent reportage of The Chronicle Herald, in its entirety, literally speaks
for itself. Any allegation of paragraph 13 of the Complaint, or any implication by the Plaintiff
related thereunto, which is or may appear to be at variance with The Chronicle Herald’s actual
reportage, and/or any fair comment by The Chronicle Herald, is denied. The conclusions set forth
in paragraph 13 of the Complaint require no response.
14. The allegations of paragraph 14 of the Complaint are denied as worded. The conclusions set forth in paragraph 14 of the Complaint require no response.
15. The Chronicle Herald specifically denies that the Plaintiff has pleaded the occurrence of any alleged publication by The Chronicle Herald of anything actionable ex delicto by the Plaintiff
himself as against The Chronicle Herald. The conclusions set forth in paragraph 15 of the
Complaint require no response.
IV. CAUSE OF ACTION [SIC]
COUNT 1: DEFAMATION [SIC]
16. The Chronicle Herald reavers all of its defenses, responses and affirmative defenses
to every preceding and every subsequent numbered paragraph of the Complaint as and for its
response to paragraph 16 of the Complaint.
17. The allegations of paragraph 17 of the Complaint are denied by The Chronicle Herald. The Chronicle Herald specifically denies that the Plaintiff has expressly and specifically pleaded what was allegedly false in any statement actually published in Canada by The Chronicle Herald, and it further specifically denies that the Plaintiff has expressly and specifically pleaded that any publication by The Chronicle Herald of a false statement about the Plaintiff has occurred in this district and/or division, or to whom the alleged “publication” was made, or when. The conclusions set forth in paragraph 17 of the Complaint require no response.
18. The allegations of paragraph 18 of the Complaint are denied by The Chronicle Herald. The Chronicle Herald specifically denies that the Plaintiff has expressly and specifically pleaded what was allegedly false in any statement actually published in Canada by The Chronicle Herald and further specifically denies that the Plaintiff has specifically pleaded that any publication by The Chronicle Herald of a false statement about the Plaintiff has occurred in this district and/or division, or to whom the alleged “publication” was made, or when. The conclusions set forth in paragraph 18 of the Complaint require no response.
19. The allegations of paragraph 19 of the Complaint state nothing specific or material
to Plaintiff’s “claim” and are therefor unintelligible; each and very “allegation” of paragraph 19 of
the Complaint is denied. The conclusions set forth in paragraph 19 of the Complaint require no
response.
20. The Chronicle Herald reavers the responses to paragraphs 7 through 19 of the Complaint as and for a part of its response to paragraph 20 of the Complaint and, further, specifically denies the allegations of paragraph 20 of the Complaint. The conclusions set forth in paragraph 20
of the Complaint require no response.
21. The Chronicle Herald specifically denies each and every allegations of paragraph 21
of the Complaint and demands strict proof thereof. Plaintiff has wholly failed to allege his alleged
special damages in the manner and with that specificity expressly required by the Federal Rules of
Civil Procedure. Plaintiff reavers its denials as to any implied, but unpleaded and unspecified,”
falsity,” as to any alleged, but unspecified, “publication,” and as to any attempt to imply that the
essential “causation” may be presumed to have stemmed from any matter, the actual, specific falsity
of which and the actual publication here of same were, neither one, specifically pleaded, at all. The
conclusions set forth in paragraph 21 of the Complaint require no response.
V. PRAYER FOR RELIEF
Having pleaded neither the actual falsity of any alleged libel allegedly uttered by The
Chronicle Herald, nor any publication thereof in this district or division, nor any causation of any
actionable effect thereof upon himself, The Chronicle Herald declares that the Plaintiff is entitled
to no relief that may be granted by this Honorable Court, wherefore, The Chronicle Herald denies
that the Plaintiff may demand judgment against it for “actual damages,” or punitive damages, or any
other form or manner of relief alluded to in his Complaint.
AND NOW, having answered the allegations of the Complaint, The Chronicle Herald would
show the following additional and alternative objections, defenses and matters in avoidance, as
contemplated by Fed. R. Civ. P. 8.
THIRTY-SIXTH DEFENSE
The claim asserted is barred by the statute of limitations.
THIRTY-SEVENTH DEFENSE
For the reasons explicitly set forth in this pleading, The Chronicle Herald avers that this
action was filed pro se and filed in violation of Fed. R. Civ. P. 11 and that it is also violative of the
Mississippi Litigation Accountability Act. Moreover, the filing and the maintenance of this civil
action was intended to vex the Defendant and Plaintiff’s actions since the filing of it likely will
unlawfully multiply these proceedings.
THIRTY-EIGHTH DEFENSE
Any statement yet to be shown to have been actually uttered by The Chronicle Herald about
the Plaintiff himself will be shown to have been justified as the contemporaneous reporting of the
occurrence of a local court decision and thus privileged and, if shown to have been published here,
then to have been published under circumstances in which that privilege was not actionably
exceeded.
THIRTY-NINTH DEFENSE
Any statement shown to have been actually written by The Chronicle Herald about the
Plaintiff himself will be shown to have been true or substantially true.
FORTIETH DEFENSE
The Plaintiff voluntarily instigated or injected himself into each of the controversies alluded
to but not described in the Complaint and assumed thereby all risks attendant to his doing so. The
Chronicle Herald exercised no dominion or control over the Plaintiff’s deliberately chosen and
pursued courses of action or over the responses of other persons thereto, whether reasonable in
nature or not.
FORTY-FIRST DEFENSE
The Plaintiff is estopped to complaint of the reportage of The Chronicle Herald and all fair
comment related thereto.
FORTY-SECOND DEFENSE
By injecting himself into various controversies as aforesaid, the Plaintiff waived the privilege
of complaining, against The Chronicle Herald, or anyone else, in respect of any matters of fact or
opinion that he invited or authorized others to comment upon, whether in agreement or in opposition,
or that were the subjects of judicial findings of fact about himself, or that might be regarded as noncomplimentary, even insulting, and whether or not and however those matters were published or reported about by others, including by The Chronicle Herald.
FORTY-THIRD DEFENSE
“Homophobia” is a defined term having a general acceptance as to meaning. If, as implied
in his Complaint, Plaintiff himself is in fact not afraid of or averse to homosexuality and/or not afraid
of or averse to alleged homosexuals, nevertheless he has so expressed or published opinions or
descriptive words of a pejorative suggestion and/or so comported himself as to create a fair inference
that he is or may be so averse or afraid, thus a homophobe, as that term is generally defined and as
he and his statements have been characterized by various courts here and in Canada.
FORTY-FOURTH DEFENSE
The Chronicle Herald’s actual actions and writings are protected by freedoms of the press
and of free speech to the full measures set forth in the First Amendment to the Constitution of the
United States of America, The Constitution of the State of Mississippi (1890) and the case decisions
thereunto appertaining (as well as by the common law and the laws of the Commonwealth of
Canada).
FORTY-FIFTH DEFENSE
The Plaintiff is the so-called moderator, editor and/or publisher of all content allowed to be
posted to “slabbed.org.” Nothing is published or can be published thereon which Plaintiff himself
does not pre-approve for publication or re-publication and/or personally endorse by such publications, whereby he invites further such content to be posted there and foreseeably invites all
controversies related thereunto, whatever the sources, whatever the contents thereof, and whatever
motivates same.
FORTY-SIXTH DEFENSE
Prior to the alleged “publication” by The Chronicle Herald of unspecified false matter using
the phrase pleaded in the Complaint, The United States Court of Appeals for the Fifth Circuit
expressly held concerning the Plaintiff that this District Court (in Civil Action No. 1:12-cv-00090-
LG-JMR) had noted that, by using “Slabbed” to do so, Plaintiff had posted information “which can
be [fairly] characterized as derogatory, mean spirited, sexist and homophobic.” (Emphasis added.)
These filings are matters of public record, in both courts. But, the Plaintiff did not seek any manner
of redress in this Court or in the Court of Appeals regarding either of those findings as just quoted;
neither had he filed or prosecuted any cross-appeal respecting same, to any purpose or any effect,
in the Court of Appeals. Neither did the plaintiff seek any manner of relief against substantially
similar findings of fact made in the Supreme Court of Nova Scotia.
FORTY-SEVENTH DEFENSE
Plaintiff must prove that The Chronicle Herald has acted toward him with actual malice and must do so by clear and convincing evidence but The Chronicle Herald has no such animus; thus, the Plaintiff has no evidence of this sort or that may plausibly be so construed.
FORTY-EIGHTH DEFENSE
The Chronicle Herald’s neutral reportage of court decisions and other contemporaneous occurrences of matters of interest in Nova Scotia was justified.
FORTY-NINTH DEFENSE
The United States Court of Appeals has now so ruled in No. 13-60002 that this District Court
may take judicial notice of this Plaintiff’s website’s content and of juridical filings by Plaintiff in this
and other jurisdictions in the context of proceedings upon, inter alia, the First Defense. Plaintiff is
estopped to deny the contents of any of same.
FIFTIETH DEFENSE
The Plaintiff may not seek damages for statements of opinion contained in substantially
accurate reports by The Chronicle Herald concerning any statement or opinions that the Plaintiff has
expressed, published or pleaded, however inappropriate or grotesque, and even if Plaintiff’s opinions
or pejoratives are not themselves legally actionable by those whom the Plaintiff describes or of
whose actions he apparently disapproves.
FIFTY-FIRST DEFENSE
Plaintiff must prove that he is not possessed in fact of and that he does not express an
irrational fear of, aversion to, or is not inclined to discrimination against homosexuality or
homosexuals, and that The Chronicle Herald has actually published in this district and division a
false statement of purported fact about him that explicitly said that he is and Plaintiff must prove that
that statement about him was not substantially true but was actually false and wherein so.
FIFTY-SECOND DEFENSE
If the Plaintiff is a homophobe, then any actual fear or aversion which the Plaintiff himself
may have had or still has towards homosexuality and/or alleged homosexuals has been, by definition,
irrational and, thus, is not legally sanctionable by this Court, and the Plaintiff may not seek
“damages” from The Chronicle Herald for his harboring any such irrational fear. However, any
pretense by which the Plaintiff may have feigned (or encouraged any conclusion) that he is
homophobic, if done for commercial reasons, would be sham and false and thus could not be
actionable, in any context.
FIFTY-THIRD DEFENSE
Plaintiff has sustained no cognizable or non-cognizable direct loss or injury to himself.
FIFTY-FOURTH DEFENSE
No such “injury” as Plaintiff alleged is cognizable in the context Plaintiff has alleged.
FIFTY-FIFTH DEFENSE
Any alleged injury or loss which the Plaintiff claims he has sustained by being characterized
as an “anti homosexual blogger” falls within the ambit of the doctrine of de minimus non curat lex.”
FIFTY-SIXTH DEFENSE
The publication, in Halifax, Nova Scotia, Commonwealth of Canada, of an opinion or a
statement of fact fairly characterizing the Plaintiff as being an “anti homosexual blogger” cannot
plausibly have impaired any cognizable interest he might possess or have plausibly diminished his
public persona or reputation as an anti homosexual blogger, moreover it addressed a contemporaneous decision in a local court proceeding. The Chronicle Herald was not chargeable
with any error in the court decision reported or any offense taken to that decision by the party against
whom the decision issued. The Defendant reported the local current news with reasonable accuracy
when describing the Supreme Court’s findings.
FIFTY-SEVENTH DEFENSE
Plaintiff has failed to mitigate, or avoid entirely, any alleged direct loss or injury he has claimed conclusorily.
FIFTY-EIGHTH DEFENSE
The defendant avers, upon information and belief, that the plaintiff may have received, or accepted, or agreed to accept or receive things of value or other assistance whatever the form thereof,
as an inducement to commence or to prosecute this civil action.
FIFTY-NINTH DEFENSE
Plaintiff is estopped to assert that any direct loss or injury he has allegedly sustained was
caused by The Chronicle Herald as opposed to being caused by some other actor or circumstance,
and whether actionable or otherwise.
SIXTIETH DEFENSE
The Chronicle Herald invokes Section 85-5-7, Mississippi Code.
SIXTY-FIRST DEFENSE
The Plaintiff has confected or exaggerated any alleged direct “loss” or “injury” to himself for
which he seeks recovery of compensatory damages from The Chronicle Herald.
SIXTY-SECOND DEFENSE
Any direct loss or injury the Plaintiff himself may have sustained was proximately caused or contributed to by Plaintiff’s own actions or by the actions of other individuals or entities for which
The Chronicle Herald is neither answerable nor liable.
SIXTY-THIRD DEFENSE
Plaintiff has not properly asserted a claim for any special damages.
SIXTY-FOURTH DEFENSE
Punitive damages against this Defendant cannot be justified in this case, and any award of punitive damages to Plaintiff against this Defendant would violate the due process clause of the Fourteenth Amendment to the Constitution of the United States of America in that the basis for awarding punitive damages is vague, standardless, and not rationally related to any legitimate
governmental interest.
SIXTY-FIFTH DEFENSE
Punitive damages against this Defendant cannot be justified in this case, and any award of
punitive damages to Plaintiff against this defendant would violate the due process clause in Article
3, Section 14, of the Constitution of the State of Mississippi in that the basis for awarding punitive
damages is vague, standardless, and not rationally related to any legitimate governmental interest.
SIXTY-SIXTH DEFENSE
Punitive damages against this Defendant cannot be justified in this case, and any award of
punitive damages to Plaintiff against this Defendant would be violative of the procedural
safeguards provided to this Defendant under the Fifth and Sixth Amendments to the Constitution
of the United States of America (as applied to Mississippi and other individual states through the
Fourteenth Amendment to the Constitution of the United States of America) in that punitive
damages are penal in nature, and this Defendant is entitled to the same procedural and evidentiary
safeguards accorded to those charged with crimes against the United States of America or against
any individual state thereof before any such penalty can be assessed.
SIXTY-SEVENTH DEFENSE
Punitive damages against this Defendant cannot be justified in this case, and any award of
punitive damages to Plaintiff against this Defendant would violate this Defendant's right to
protection against "excessive fines" as provided in the Eighth Amendment to the Constitution of
the United States of America (as applied to Mississippi and other individual states through the
Fourteenth Amendment to the Constitution of the United States of America).
SIXTY-EIGHTH DEFENSE
Plaintiff’s claims for punitive damages cannot be sustained, because an award of punitive
damages under Mississippi law by a jury, who, before retiring to consider the issue, (1) is not
provided a standard constitutionally sufficient for determining the appropriateness of, or the
appropriate amount of, a punitive damages award, (2) is not instructed on the limits on punitive
damages imposed by the applicable principles of deterrence and punishment, (3) is not expressly
prohibited from awarding punitive damages or determining the amount of an award of punitive
damages, in whole or in part, on the basis of invidiously discriminatory characteristics, including the
corporate status of a Defendant, (4) is permitted to award punitive damages under a standard for
determining liability for punitive damages that is vague and arbitrary as to damages permissible,
and/or (5) is not subject to judicial review on the basis of objective standards, would violate this
Defendant’s substantive and procedural due process and equal protection rights guaranteed by the
Fourteenth Amendment to the Constitution of the United States of America and the double jeopardy
clause of the Fifth Amendment as incorporated into the Fourteenth Amendment, and by the
Mississippi constitutional provisions providing for due process, equal protection and the guarantee
against double jeopardy.
SIXTY-NINTH DEFENSE
Any award of punitive damages in this case would violate this Defendant’s right to
procedural due process guaranteed by the Fifth Amendment and the Fourteenth Amendment of the
Constitution of the United States of America and corresponding provisions of the Mississippi
Constitution, if the jury is not authorized to apportion damages separately and severally against joint
tortfeasors where the punitive damages are predicated upon the alleged enormity of the wrong
committed by each alleged tortfeasor.
SEVENTIETH DEFENSE
The submission of punitive damages to a jury, upon the pretext of having the jury make
"findings of fact" about the degree of reprehensibility of this Defendant’s alleged conduct, is
violative of this Defendant’s rights to the due process of law. No jury can engage in such a finely
tuned exercise of deterrence calibration. No jury is institutionally competent to make such a
necessary determination to justify a constitutionally permissible deterrence calibration.
SEVENTY-FIRST DEFENSE
The submission of punitive damages to a jury, upon the pretext of having the jury make
"findings of fact" about the disparity between the harm, if any, suffered by the Plaintiff and the
punitive damages sought and/or any punitive damages awarded, is violative of this Defendant’s
rights to the due process of law. No jury can engage in such a finely tuned calculation of a
constitutionally acceptable disparity between the harm, if any, suffered by the Plaintiff and the
punitive damages sought and/or any punitive damages awarded. No jury is institutionally competent
to make such a necessary determination to justify a constitutionally permissible disparity or
correlation.
SEVENTY-SECOND DEFENSE
The submission of punitive damages to a jury, upon the pretext of having the jury make
"findings of fact" regarding the differences between the punitive damages awarded by themselves
and those imposed in comparable cases, is violative of this Defendant’s rights to the due process of
law. Jurors have no such information, experience or competency and go well beyond their lawful
fact-finding function when allowed to make such determinations without any basis or competency
for doing so.
SEVENTY-THIRD DEFENSE
Plaintiff’s claims for punitive damages cannot be sustained because an award of punitive
damages under Mississippi law without proof of each separate element by evidence beyond a
reasonable doubt would violate this Defendant’s substantive and procedural due process rights under
the due process provisions of the Mississippi Constitution and the Constitution of the United States
of America.
SEVENTY-FOURTH DEFENSE
Any imposition of punitive damages based upon theories of respondeat superior, agency,
vicarious liability, or joint and several liability violates the due process clause of the Fourteenth
Amendment of the Constitution of the United States of America, and the corresponding provisions
of the Mississippi Constitution.
SEVENTY-FIFTH DEFENSE
Any imposition of punitive damages against this Defendant would violate the due process
clauses of the Fourteenth Amendment of the Constitution of the United States of America and the
Mississippi Constitution, in that the bases for imposing liability and for awarding punitive damages
are vague, retroactive, limitless, standardless and not rationally related to any legitimate
governmental interests.
SEVENTY-SIXTH DEFENSE
Any imposition of punitive damages against this Defendant based upon wealth would violate
the equal protection clause of the Fourteenth Amendment to the Constitution of the United States
of America.
SEVENTY-SEVENTH DEFENSE
To the extent that it seeks punitive damages, the complaint violates this Defendant's rights
to substantive due process, as provided in the Fifth and Fourteenth Amendments to the Constitution
of the United States of America, and therefore, fails to state a basis upon which punitive damages
can be awarded.
SEVENTY-EIGHTH DEFENSE
Plaintiff’s claim for punitive damages cannot be sustained because Mississippi law regarding
the standard for determining liability and the amount of punitive damages fails to give this Defendant
prior adequate notice of the conduct for which punitive damages may be imposed and is void for
vagueness in violation of this Defendant's due process rights guaranteed by the Fourteenth
Amendment to the Constitution of the United States of America.
SEVENTY-NINTH DEFENSE
Plaintiff’s claim for punitive damages cannot be sustained because, under Mississippi law,
a jury award of punitive damages, to the extent not subject to post-trial and appellate court reviews
under constitutionally adequate, objective standards to insure that the award is rationally related to
the state’s legitimate goals of deterrence and retribution, further violates this Defendant's due process
rights guaranteed by the Fourteenth Amendment to the Constitution of the United States of America.
EIGHTIETH DEFENSE
Any removal of homophobic, anti homosexual(s), or anti homosexuality matter or content
from his blog or other records or date compilations would constitute spoliation of evidence.
WHEREFORE The Halifax Herald Limited denies that it is liable to the Plaintiff, in any
amount, and it demands to be dismissed.
DATED: March 30, 2015.
Respectfully submitted,
THE HALIFAX HERALD LIMITED
