DEFENDANT/MOVANT
Good morning, your honors. I am Rick Peltz-Steele, and I represent defendants Bill Maher and HBO. We move under Rule 12(b)(6) to dismiss this case for failure to state a claim.
Defendants have been sued by Plaintiff Laura Loomer for telling a joke. Bill Maher is a comedian with a television show on HBO called "Real Time." Like every other late-night comedy TV host, Mr. Maher makes jokes about current events, often at the expense of high-profile public figures. On the October 21, 2024, broadcast of "Real Time," Mr. Maher joked delivered a short monolog about the sex life of the President of the United States. Mr. Maher said that because social media influencer Laura Loomer works so closely with the President, they must be in a sexual relationship. The audience laughed through the whole segment. Obviously Mr. Maher has no idea what happens in the President's bedroom. No one understood him to be asserting a fact.
To survive a motion to dismiss for failure to state a claim, a complaint must allege facts sufficient to state a claim for relief that is plausible on its face. The alleged tort of defamation in the state of Florida requires that the defendant have made a false assertion of fact. In Turner v. Wells, the 11th Circuit made clear that statements of opinion are completely privileged. In distinguishing fact from opinion, the district court in Fortson v. Colangelo wrote that "context is paramount." The court must consider the context of publication; all the words used, not an isolated phrase; and the circumstances of publication, including the medium and audience.
For example, in Fortson, a sports commentators watching a basketball game described the plaintiff as a "thug" when commenting on his style of play. The court determined that no viewer understood the commentator to be accusing the player of criminal conduct.
Here, the context is a late-night comedy television program, in which the host routinely makes hyperbolic statements about public figures to elicit laughs. The words Mr. Maher used are themselves hyperbolic, as he talked about who the President is effing, using a vulgar expletive. The medium was entertainment television, and the audience tuned in for a comedy show.
This case is precisely like Fortson, in that the speaker's words understood in context cannot be taken as assertions of fact.
Because the plaintiff has failed to state an essential element of defamation, an assertion of false fact, we ask the court to dismiss this lawsuit.
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PLAINTIFF/RESPONDENT
Good morning, your honors. I am Rick Peltz-Steele, and I represent plaintiff Laura Loomer. We ask the court to reject the defendants' motion to dismiss.
This case is about an allegation of professional misconduct so serious that it constitutes slander per se and has had a devastating impact on the reputation of the plaintiff, who depends on her reputation and credibility in her profession as a social media personality and respected female leader in the Jewish community.
Under Rule 12(b)(6), a motion to dismiss must be rejected if the plaintiff plausibly alleges the elements of a tort. Plaintiff is not required to prove the tort to survive dismissal. Florida law requires that the plaintiff allege a false assertion of fact, and that is exactly what defendant Maher uttered.
In Turner v. Wells, the 11th Circuit did say that statements of opinion are privileged. However, the court also wrote that a statement of opinion is not shielded from liability if a reasonable hearer would infer a factual basis or factual conclusion. We agree with the defendants' reliance on Fortson v. Colangelo that "context is paramount." But appearing on a television show and making jokes does not mean that Mr. Maher can make any allegation he wishes, even plain assertions of fact. Turner and Fortson both recognized that an assertion of fact is not protected from liability because the speaker says "I think," and defamation by implication may be alleged if a reasonable hearer would understand an assertion of fact.
This case is unlike Fortson, because in Fortson, the plain visual context of the presentation was a sporting event in which the plaintiff executed a violent play. The word thug was used as a metaphor, for the player stealing the ball. There is no metaphor in the instant case. Mr. Maher vulgarly alleged an unprofessional sexual relationship, and that assertion is false.
A fact is an assertion capable of being proved true or false. Whether Ms. Loomer is in a sexual relationship with the President of the United States can be proved true or false. Ms. Loomer is prepared to prove that the assertion is false. She should have that opportunity to make her case to the jury. The motion to dismiss should be denied.