The defamatory statements complained of in the defendants’ book also suffer the same problems as<BR> those statements made by the Ramseys in the media promoting their book. For example, the<BR> defendants make it perfectly clear to the reader that they have hired private investigators who, over<BR> a period of three years, conducted their own investigation into the murder of their daughter. The<BR> book is even advertised as containing the “results” of the Ramseys’ investigation. However, the<BR> “results” of their investigation, and the “facts” upon which they base their statements, remain largely<BR> undisclosed to the reader, who is left to draw his own conclusions as to what is “fact” and what is<BR> “opinion,” with no idea of how much is drawn from, and based upon, the “secret” investigative files of<BR> the Ramseys. <P> Defendants’ counsel is uniquely aware of the implications of including Linda Hoffmann-Pugh in the<BR> Ramseys’ list of “suspects,” having appeared as plaintiff’s counsel for Richard Jewell, who was falsely<BR> identified as a suspect in the terrorist bombing of the Olympic games in 1996, in the case of Jewell v.<BR> NYP Holdings, Inc., 23 F. Supp. 2d 348, (S.D.N.Y., 1998). The court in that case observed that<BR> “Although the net cast by a criminal profile may well capture a number of innocent people, that fact<BR> does not change the damaging impact on the innocents snared…..a person who fits the profile is<BR> identified as someone who may have been involved in a criminal act. Such a false accusation is not<BR> without its sting or pain.” Id. at 364. See also Levin v. McPhee, 119 F. 3d at 195 (statement<BR> implicating someone in a murder, even though such an implication appeared “among conflicting and<BR> speculative versions of an unresolved mystery,” was capable of a defamatory meaning and motion to<BR> dismiss was properly denied.)<P> John and Patsy Ramsey’s public statements, and those in their book, are laden with innuendo and<BR> suggestions that the plaintiff was a legitimate kidnapping and murder suspect. “Even if the speaker<BR> states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or<BR> if his assessment of them is erroneous, the statement may still imply a false assertion of fact.”<BR> Milkovich v. Lorain Journal Co., 497 U.S. 1 at 18.<P> D. The District Court Erred in Relying on Inapposite California Case Law in Preference to Settled<BR> Georgia Case Law<P> The district court relies upon the California case of Forsher v. Bugliosi, 26 Cal. 3d 792 (1980), in<BR> preference to the Georgia case of Harcrow, in reaching its conclusion that a jury could not, as a<BR> matter of law, find that the Ramseys defamed Linda Hoffmann-Pugh. In doing so, the district court<BR> has ignored the Eleventh Circuit’s holding that:<P> In determining the law of the forum state, federal court must follow the decisions of the state’s<BR> highest court, and in the absence of such decisions on an issue, must adhere to the decisions of the<BR> state’s intermediate appellate courts unless there is some persuasive indication that the state’s<BR> highest court would decide the issue otherwise.<P> Flintkote Co. v. Dravo Corp., 678 F.2d 942, 945 (11th Cir. 1982).<P> The law of the forum state of Georgia is found in Harcrow, and not in the law found in the California<BR> case of Forsher. In Forsher, it is a state prosecutor who is reporting the facts of a case in which he<BR> participated, while in the case before this Court, it is murder suspects (i.e., the Ramseys) who make<BR> the defamatory statements in what is arguably an attempt to cover their tracks by implicating Linda<BR> Hoffmann-Pugh to the police and the general reader of their book. <P> The District Court, moreover, relies upon a strained interpretation of Linda Hoffmann-Pugh’s argument<BR> by laboriously deconstructing the Ramseys’ statements into their separate parts to “prove” that they<BR> are not defamatory to the plaintiff. However, the District Court seemingly ignores the fact that it is<BR> the “totality” of their statements, taken together with their protestations of “innocence” that makes<BR> their reference to Linda Hoffmann-Pugh so defamatory. “Words which alone are innocent may in their<BR> context clearly be capable of a defamatory meaning and may be so understood.” Jewell v. NYP<BR> Holdings, Inc., 23 F. Supp. 2d 348, 362 (S.D.N.Y. 1998).<P> E. The Defendants’ Statements are Unprotected Speech Because the Ramseys Knowingly Lied and<BR> Made False Statements to Implicate Innocent People in Their Crime <P> John and Patsy Ramsey have piously argued that the plaintiff’s cause of action risks chilling<BR> significant truthful speech and valuable opinion, thereby interfering with their “right” to defame<BR> innocent people for the kidnap/murder of their daughter by naming them in their book as possible<BR> police suspects. The defendants then go on to lament the fact that Linda Hoffman-Pugh’s complaint<BR> will discourage their expression of “truthful” speech in the ‘marketplace of ideas.’ The Ramseys<BR> support this proposition -- that the First Amendment somehow protects their right to “name”<BR> (frame?) murder suspects in a book -- by pointing to the U. S. Supreme Court opinion of Gertz v.<BR> Robert Welch, Inc., 418 U.S. 323, 339-40 (1974) (“Under the First Amendment there is no such thing<BR> as a false idea.”) <P> However, the Ramsey’s neglect to mention the rest of Gertz, which states that “Neither the<BR> intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust and<BR> wide-open debate on public issues.’”( Id. at 340, quoting New York Times v. Sullivan, 376 U.S. at<BR> 270). The Ramseys, moreover, fail to mention Hustler Magazine v. Falwell, 485 U.S. 46 (1988), in<BR> which the Supreme Court states even more emphatically: <P> False statements of fact are particularly valueless; they interfere with the truth-seeking function of<BR> the marketplace of ideas, and they cause damage to an individual’s reputation that cannot easily be<BR> repaired by counterspeech, however persuasive or effective. <P> Hustler Magazine v. Falwell, 485 U.S. at 52<P> The statements in Hustler Magazine are consistent with the U.S.Supreme Court’s pronouncement in<BR> Garrison v. Louisiana, 379 U.S. 64, (1964), in which the Court addressed what constitutional<BR> protection, if any, the First Amendment should grant calculated falsehoods (i.e., “lies”):<BR> The use of calculated falsehood, however, would put a different cast on the constitutional question.<BR> Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free<BR> speech, it does not follow that the lie, knowingly and deliberately published…., should enjoy like<BR> immunity…..<P> For the use of the known lie as a tool is at once at odds with the premises of democratic government<BR> and with the orderly manner in which economic, social, or political change is to be effected.<P> Garrison v. Louisiana, 379 U.S. at 75.<P> It has been long established that certain speech is not protected by the First Amendment. Perjury,<BR> the conversations of co-conspirators, yelling “fire!”, etc. are all examples of “unprotected” speech.<BR> Why should the lies of murder suspects, who may have the legal right to remain silent, but who do<BR> not have the right to falsely implicate innocent people for their crime in a bestselling book be allowed<BR> to seek sanctuary in the First Amendment?<P> In light of the fact that there is compelling evidence in the form of handwriting reports and affidavits<BR> by forensic document examiners attached as “Exhibit 1” to the plaintiff’s amended complaint, showing<BR> that Patsy <P> Ramsey is the ransom note writer, makes the defendants’ characterization of the Book ‘s central idea<BR> -- that the Boulder police mishandled the murder investigation -- almost ludicrous. The mere fact<BR> that Patsy Ramsey wrote <BR> the ransom note, if proven by clear and convincing evidence to a jury,would be sufficient to establish<BR> as false the statement that: “If it’s Linda, it’s okay, because she is a good, sweet person. She is just<BR> upset. She may need the money, but she won’t hurt JonBenet.” (DOI, at p. 19)<P> Arguably, Patsy Ramsey’s authorship of the ransom note would be legally sufficient proof to meet the<BR> “actual malice” requirement that she had the necessary “intent” to knowingly publish false<BR> statements about Linda Hoffmann-Pugh. If John and Patsy Ramsey both know she is the ransom note<BR> writer, then, by definition, they have made provably false statements about the plaintiff with<BR> “constitutional malice.”<P> “If a public figure proves by clear and convincing evidence that the defendant published with the<BR> purpose or design of communicating a false and defamatory, albeit implied statement, the plaintiff<BR> should be able to maintain a cause of action and recover for the resulting harm. Such a predicate to<BR> legal responsibility of the publisher in a public figure case is fully consistent with the promise of New<BR> York Times and its progeny. The Court in New York Times did not promise absolute immunity; it<BR> fashioned a qualified privilege. Calculated falsehood, in the form of the deliberate lie, is not protected<BR> by the First Amendment.” <P> C. Thomas Dienes & Lee Levine, Implied Libel, Defamatory Meaning and State of Mind: The Promise of<BR> New York Times Co. v. Sullivan, 78 Iowa L. Rev. 237, 311(1993)<P> CONCLUSION<P> Linda Hoffmann-Pugh contends that if the statements by the defendants in their book, which try to<BR> implicate her in the horrific sexual assault and murder of a six-year girl in a case that has received<BR> enormous international press attention, don’t rise to the level of “unprotected speech,” then what<BR> does? <P> If Linda Hoffmann-Pugh cannot bring this action, accused as she is of kidnapping and possibly killing a<BR> small child, then who can ever hope to defend their reputation from false charges of kidnap/murder?<P> For the foregoing reasons, it is respectfully requested that the Court reverse the Order of the District<BR> Court. <P> Dated: June 14, 2002<P> Respectfully submitted,<BR> _________________________ <BR> DARNAY HOFFMAN<P> <BR>