STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

Burke Ramsey,

Plaintiff,

vs. Civil Action No. 16-012792-CZ

Hon. David A. Groner
Werner U. Spitz,

Defendant. 16-012792-CZ
/
FILED IN MY OFFICE
WAYNE COUNTY CLERK
James E. Stewart (P23254) Law Offices of John A. Lesko, Esq
2/16/2017 1:08:43 PM
Leonard M. Niehoff (P36695) John A. Lesko (P55397)
CATHY M. GARRETT
Andrew M. Pauwels (P79167) 134 N. Main St.
Honigman Miller Schwartz and Cohn LLP Plymouth, MI 48170
315 East Eisenhower Parkway (734) 652-1338
Suite 100 JL@DetroitCounsel.com
Ann Arbor, MI 48108-3330
(734) 418-4256 L. Lin Wood, P.C.
jstewart@honigman.com L. Lin Wood (pro hac vice pending)
lniehoff@honigman.com Nicole Jennings Wade (pro hac vice pending)
apauwels@honigman.com Jonathan D. Grunberg (pro hac vice pending)
G. Taylor Wilson (pro hac vice pending)
Attorneys for Defendant Werner U. Spitz 1180 West Peachtree Street, Suite 2400
Atlanta, GA 30309
(404) 891-1402
lwood@linwoodlaw.com
nwade@linwoddlaw.com
jgrunberg@linwoodlaw.com
twilson@linwoodlaw.com

Attorneys for Plaintiff Burke Ramsey

DEFENDANT WERNER SPITZS REPLY IN SUPPORT OF MOTION FOR

SUMMARY DISPOSITION

Plaintiff strains in his Opposition (Opp.) to avoid acknowledging the undeniable: as the

JonBent Ramsey case has remained the most famous unsolved murder in the past two decades,

scores of peoplefrom law enforcement professionals to Internet theoristshave offered

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numerous hypotheses about how and why she was killed and who killed her. Countless questions

have been raised and answers proposed, but for twenty years, after pursuing numerous leads and

theories, Boulder police have been unable to solve this tragic crime, and no one has ever been

charged.

Dr. Spitz made the statements at issue here in the context of this twenty-year-long free

and open exchange of ideas. Whether viewed as informed theories, threadbare hypotheses, or

rank speculation, all are opinionstypically strongly held and confidently expressed. Given this

context, no reasonable person would have understood that Dr. Spitz offered as fact that Burke

Ramsey killed his sister. Instead, as the historical context and the WWJ online article attached to

the Complaint make clear, Dr. Spitz simply offered yet another opinion about this crime.

Plaintiffs approach, urging the Court that [e]ach accusation must stand on its own,

Opp. at 3, entirely ignores all context. The effect of Plaintiffs argument is, quite literally, to

misread what Dr. Spitz saidas often happens when words are wrenched from the context that

gives them meaning.

To the contrary, Michigan law, the First Amendment, and common sense tell us that, in

defamation cases, courts must closely consider the context of allegedly actionable statements.

Applying these principles to this case makes clear that, as a matter of law under MCR

2.116(C)(8), Plaintiff has no claim.

I. The Required Contextual Analysis of Defendants Statements Shows They Were

Expressions Of His Subjective Viewpoint

Despite Plaintiffs urging that the Court take Dr. Spitzs statements in isolation, Michigan

law requires that this Court, as the gatekeeper of free expression, examine their context to

determine whether they are protected statements of opinion or statements of fact that are

provable as false. This principle applies to all kinds of statements, even those that sound like

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accusations of illegal conduct. If the alleged defamatory statements, read or heard in context,

could not reasonably be understood as stating actual facts about plaintiff[,] then dismissal is

warranted under either MCR 2.116(C)(8) or (10). Ireland v Edwards, 230 Mich App 607, 618;

584 NW2d 632 (1998) (allegation by attorney for father that mother was an unfit mother, in

context of heated custody battle, held not actionable) (emphasis supplied). See also Martz v

Bower, 2012 WL 11919376 (Mich Ct App November 27, 2012) (unpublished per curiam)

(citizens repeated statements that municipal council members conduct was illegal, heard in

context of public debate over alleged nepotism, held not actionable).

The First Amendment doctrine discussed in Milkovich v Lorain Journal, 497 US 1; 110 S

Ct 2695; 111 L Ed 2d 1 (1990), which Plaintiff clings to, requires precisely the same analysis of

textual and social context as Michigan common law. There, the Supreme Court held that a

statement on matters of public concern must be provable as false before there can be liability

under state defamation law. Id. at 19.1 In addition to statements the Court identifies as non-

actionable because they qualify as an imaginative expression or rhetorical hyperbole, the

Court held that statements generally are not provable as false if they are evaluative in nature,

expressing a personal opinion, id. at 20, or if they are subjective assertion[s]. Id. at 21.

In analyzing a statement to determine whether it is provable as false or is a non-

expression of opinion, courts apply a multi-factor contextual analysis.2 In Michigan, Garvelink v

1 Here, Plaintiff does not, and could not, contest that the murder of JonBent Ramsey is a matter
of public controversy and concern. Indeed, he concedes that this court may take judicial notice of
that fact. See Opp. 5 fn. 4. Plaintiff therefore has the burden of showing, as a threshold matter,
that the statements at issue are provable as false. Plaintiffs Opposition shows that he cannot
meet that burden here.
2 See, e.g., Bentkowski v Scene Magazine, 637 F3d 689, 693-694 (CA 6, 2011) (To determine

whether a statement constitutes protected opinion or actionable fact, courts consider the totality
of the circumstances, including factors such as: (1) the specific language used; (2) whether the

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The Detroit News, 206 Mich App 604; 522 NW2d 883 (1994) provides a good example of that

application to an editorial page satire. In reversing the trial courts denial of summary disposition

for a newspaper sued by a school superintendent, the Garvelink court considered: the language

used (which was satirical in nature); the general context (a mock interview published on the

editorial page), verifiability (the parody was obviously fictitious); and the broader social

context (controversial cuts to school budgets that seemed intended to punish the taxpayers). A

contextual analysis like this allows the court to determine whether the statement in question is

provably false, or whether it is rhetorical hyperbole, an evaluative statement or opinion, or a

subjective assertion.

Courts do notas Plaintiff urgeslimit themselves to a consideration of the literal

language of the statement in question. Indeed, courts have expressly rejected such an approach.

In Ireland, supra, the Michigan Court of Appeals acknowledged that taken literally some of

the statements made about the plaintiff were patently false. Ireland, 230 Mich App at 619.

However, the court continued, any reasonable person hearing these remarks in context would

have clearly understood what was intended. Under these circumstances, these statements are not

actionable. Id.

The Language Dr. Spitz Used

Running away from all of the meaningful contextual analysis of the language used that

Garvelink and other cases require, Plaintiff even retreats from his own Complaint, which pleads

that Defendants statements were published, inter alia, in the September 19, 2016, article

published on CBS Detroits website attached as Complaint Exhibit B. Complaint 44. His

Opposition now advises the Court that, This lawsuit arises from statements Spitz initially

statement is verifiable; (3) the general context of the statement; and (4) the broader context in
which the statement appeared. (internal quotations omitted)).

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uttered in the WWJ radio interview and is not based on the republication of the utterances in a

subsequently published WWJ Internet article. Opp. at 20. Basic Michigan law requires that a

defamation claim be pled with specificity.3 Either Plaintiff has tried to satisfy that element by

pleading the language of the WWJ Internet article as the allegedly defamatory words, or he has

not pleaded any words at all and has failed in this essential element.

In either event, as the Complaint governs this motion, the pleaded language that Dr. Spitz

used is replete with references to his subjective opinions about the murder:

He exhorted WWJ listeners and readers to really really use your free time to

think about the case;

He expressly noted that if Burke Ramsey killed his sister I dont know the why,

Im not a psychiatrist;

He recounted being asked to sit down with Boulder police in the early days of the

investigation to review various competing theories: [W]e talked about the

incident It was probably the mother or the brother, now it turns out.

He shared what he does not believe about the Plaintiffs parents actions: I do

not believe that they changed the scene in such a way that they put claw marks on

the neck.

He expressed disapproval of the autopsy performed on JonBent, because, in his

view, no one of any standing was permitted to witness it.

3 See, e.g., Royal Palace Homes v Channel 7 of Detroit, 197 Mich App 48, 56-57; 495 NW2d
392 (1992) (Plaintiffs must plead precisely the statements about which they complain); Pursell
v Wolverine-Pentronix, Inc, 44 Mich App 416, 421; 205 NW2d 504 (1973) (The essentials of a
cause of action for libel or slander must be stated in the complaint, including allegations as to the
particular defamatory words complained of) (citations omitted); Berlin v Superintendent of
Public Instruction, 181 Mich App 154, 165; 448 NW2d 764 (1989) (If the complaint alleges
libel, the contents and place of the where the statement was published must be set forth)
(citations omitted).

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 The language in the Internet article that Plaintiff pleads as Dr. Spitzs specific defamatory

statements clearly signal to the listener and reader that he expressed opinions about events, not

provable facts.4

The General Context of Dr. Spitzs Statements

The Opposition also blithely disregards the general context of Dr. Spitzs statements,

which is the next step in the analysis the Garvelink and other courts prescribe. There is no

dispute that those comments appear in reports about a series where Dr. Spitz and others offer

their views about the JonBent Ramsey case. WWJ reported that the television series had

reconstructed key rooms in the Ramsey familys home; that the series re-visits one of the

biggest unsolved crimes of the century; that in the series Dr. Spitz forwarded a theory; that

Spitz believes a child did it; and that In his opinion, JonBent was killed by her brother

during some sort of late night confrontation.

The general context of Dr. Spitzs comments is radio coverage advising WWJs listeners

that if they tuned into the series, they would watch another entry in the twenty-year-long

exchange of ideas and opinions about this unsolved crime, expressly couched as Dr. Spitzs

opinion and belie[f]. This general context makes clear to any reasonable person that Dr.

Spitz was not reporting statements of fact. Instead, this general context plainly indicates, and

reinforces the specific language Dr. Spitz used, that he offered the latest in the decades of

professional and lay opinions about the murder.

The Broad Social Context of Dr. Spitzs Statements

Turning to the final step of the analysis, the broad social context of the statements at issue

4
This is underscored in the WWJ Internet article, which expressly states: "Note that these are
Spitzs opinions based on a review of the records and have not been provenor even alleged
in a court of law.

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involves one of the most notorious, and notoriously unsolved, murders of all timea clear

matter of public interest, as Plaintiff concedes. See Opp. 5 fn. 4. JonBent Ramseys tragic death

has been the subject of countless newspaper and magazine articles and television reports,

numerous books (including bestsellers),5 andwithin the past yeardozens of retrospectives.6

Opinions differ and theories abound regarding the identity of the perpetrator (or

perpetrators) of this crime. To get some sense of the variety of theories that have been offered to

the public, we need look no further than The Death of Innocence, written by Plaintiff Burke

Ramseys parents, John and Patsy Ramsey. That book names five people as individuals who

should be further investigated and discusses (without naming) eight more as leads, therefore

representing no less than thirteen different possibilities for the public to consider. And, of course,

over the years many have opined that a member of the family killed JonBent.7

5
These include, by way of example, Lawrence Schiller, PERFECT MURDER, PERFECT TOWN: THE
UNCENSORED STORY OF THE JONBENT MURDER AND THE GRAND JURYS SEARCH FOR THE
TRUTH (1999)a New York Times bestseller; John and Patsy Ramsey, THE DEATH OF
INNOCENCE: JONBENTS PARENTS TELL THEIR STORY (2000)another New York Times
bestseller; Cyril H. Wecht and Charles Bosworth, Jr., WHO KILLED JONBENT RAMSEY? (2016);
A James Kolar, FOREIGN FACTION: WHO REALLY KIDNAPPED JONBENT? (2012); John Ramsey
(with Marie Chapian), THE OTHER SIDE OF SUFFERING: THE FATHER OF JONBENT RAMSEY
TELLS THE STORY OF HIS JOURNEY FROM GRIEF TO GRACE (2012); Steve Thomas (with Don
Davis), JONBENT: INSIDE THE RAMSEY MURDER INVESTIGATION (2000); Paula Woodward, WE
HAVE YOUR DAUGHTER: THE UNSOLVED MURDER OF JONBENT RAMSEY TWENTY YEARS LATER
(2016); Johnny Kerns, THE COLDEST CASE: WHO KILLED JONBENT RAMSEY (2016); and Walter
A. Davis, AN EVENING WITH JONBENT RAMSEY (2004) (a play and two essays based on the
case).
6
See, e.g., Jeremy Brown, Newsweek, Why the JonBent Ramsey Murder Case Matters,
(Sept. 22, 2016); Melissa Chan, Time, JonBenet Ramsey: What to Know About the Beauty
Queens Murder Twenty Years Later, (Sept. 12, 2016); David Harsanyi, The Federalist,
Twenty Years after JonBents Murder, the Ramseys Still Look Guilty as Hell, (Sept. 14,
2016); and Dateline NBC: Who Killed JonBent Ramsey?
http://www.usmagazine.com/celebrity-news/news/jonbenet-ramsey-former-investigators-share-
their-theories-w438141 (September 6, 2016).
7
See, e.g., James Brooke, NY Times, Bungled JonBenet Case Bursts a Citys Majesty <
http://www.nytimes.com/1997/12/05/us/bungled-jonbenet-case-bursts-a-city-s-
majesty.html?_r=0> (Dec. 5, 1997) (last visited Feb. 7, 2017) (discussing 2 Views of Parents:

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 As with the language used and its general context, this broad social context would signal

to any reasonable WWJ listener and Internet visitor that Dr. Spitz was offering nothing more

than his opinion about the events of December 25 and 26, 1996. Everyone would recognize that

he shared his opinionone of dozens of competing theories espoused over two decadesof an

unsolved and likely unsolvable crime. Indeed, competing theories have been so widely discussed

that they have taken on shorthand names like the intruder theory and the Patsy-did-it theory.

In fact, a search of the term the intruder theory on Google yields pages and pages of results

related to the JonBent Ramsey case. The broad social context of Dr. Spitzs comments thus

made clear that he was providing his personal opinion about a famous unsolved crimejust as

many others have provided theirs.

***

In sum, under the contextual analysis required by Ireland, Garvelink, and other cases

discerning between actionable statements of fact and non-actionable opinions, a reasonable

person would have understood, in light of the language Dr. Spitz used, the general context, and

the broad social context, that he was expressing subjective opinions and did not state objective

facts. No discovery is necessary to evaluate the statements set forth in Plaintiffs Complaint. As

the Complaint pleads language that is non-actionable as a matter of law, summary disposition is

appropriate here.

Milkovich is Consistent With Michigan Authority

Having fled the required contextual analysis, Plaintiff engages in a series of selective

quotations from Milkovich to try to keep his case alive. A brief discussion of Milkovich clarifies

Victims or Criminals); Christopher Anderson, Daily Camera, JonBent head wound debated
<http://web.dailycamera.com/extra/ramsey/2001/03lrams.html> (May 3, 2001) (last visited Feb.
7, 2001) (discussing a homicide detectives theory that Patsy Ramsey killed JonBent).

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what that case doesand does nothold.

Milkovich turned entirely on its facts, which in turn are entirely distinguishable from the

facts of this case. In Milkovich, a high school wrestling coach testified under oath at a state

athletic association public hearing arising out of a brawl between rival teams. After a court

overturned the athletic associations probation orders, a newspaper reporter wrote a column

indicating that the coach had lied under oath. Importantly, the reporter stressed that he had

personal knowledge of facts that supported this conclusion. He wrote that he was a witness at the

wrestling meet and had attended the hearing before the athletic association, and so was in the

unique position to know what happened. Milkovich, 497 US at 5 n2.

Unsurprisingly, the Supreme Court concluded that this statementwhich the reporter

presented as a fact that he personally witnessedwas objectively provable as false. The Court

noted that determining whether Milkovich had perjured himself would consist of nothing more

than an objective comparison of his testimony before the [athletic association] board with his

subsequent testimony before the trial court. Id. at 21.

This difference is just one of many ways in which the facts of Milkovich are sharply

distinguishable from this case, and why its core holding, that only statements of fact provable as

false are actionable, supports Dr. Spitz here. Suffice it to say that a statement of fact presented

by someone in a position to have personal knowledge, regarding a matter that can be proved or

disproved by reference to a transcript, is utterly and completely different from a comment

offered by someone who acknowledges that he has no personal knowledge regarding an

unsolved crime in the context of twenty years of theorizing.

Plaintiff Relies on, and Mischaracterizes, Cases that are Easily Distinguishable

The Opposition relies on, and glaringly mischaracterizes, three additional cases that

9
actually support the Defendant here or are easily distinguishable.

First, Plaintiff relies upon Ireland v Edwards. See Opp. at 10-11. As noted above,

however, Ireland expressly rejects the literalist approach argued for by the Plaintiff and stresses

the importance of context in understanding what a statement means. Ireland actually repudiates

Plaintiffs argument.

Next, Plaintiff cites Hodgins v Times Herald Co, 169 Mich App 245; 425 NW2d 522

(1988). But Hodgins bears no resemblance to this case, which involves hypotheses about who

committed a murder that has remained unsolved for two decades despite comprehensive

investigations. Rather, Hodgins involved an accusation by the vice president of the local Humane

Society that the plaintiff (an animal dealer doing business in the same area) would sell dogs for

any purpose to anyone who would pay his asking price, including for fighting. Hodgins is

therefore like Milkovich: it involved an accusation of criminality made by someone who

indicated that he had personal knowledge about its truth.

Finally, Plaintiff cites Kevorkian v American Medical Association, 237 Mich App 1; 602

NW2d 233 (1999) in support of the proposition that all accusations of criminality are actionable

in defamation. Plaintiff makes this argument through a stunningly selective quotation from the

case, omitting that part of the courts holding that rejects the exact argument Plaintiff advances

here:

Notwithstanding plaintiff's creativity at oral argument, we decline plaintiff's

invitation to hold as a matter of law that all accusations of criminal activity are
automatically defamatory (thereby eliminating the need for that determination by
the trial court in the first instance)

Id. at 12-13. Indeed, Kevorkian emphasized that statements must be viewed in context to

determine their meaning. Id. at 7.

In short, no authority supports the proposition that Michigan has endorsed a literalist

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approach under which every accusation of a crime is factual in nature and provable as true or

false. To the contrary, Michigan law rejects any such approach and recognizes the unremarkable

proposition that, in determining what a statement means, context matters.

CONCLUSION

It has been observed that for every complex problem there is a solution that is simple,

straightforward, and wrong. This holds true for Plaintiffs position here. Looking at the words

the Defendant uttered in isolation from their context is simple and straightforward and saves the

court some work. But it is also wrong.

The right approach, as the courts uniformly hold, is to consider the full context in which

the statements were made. Here, such an analysis confirms what common sense would tell us:

when someone offers yet another opinion about the JonBent Ramsey case, everyone

understands that it is just thatanother opinion. The law of defamation does not give Plaintiff a

cudgel to silence those who arrive at conclusions that point in his direction and who wish, with

the protection of the First Amendment and Michigan law, to talk about their ideas.

Respectfully submitted,

HONIGMAN MILLER SCHWARTZ AND COHN

Attorneys for Defendant

By: /s/ James E. Stewart

Dated: February 16, 2016
James E. Stewart (P23254)
Leonard M. Niehoff (P36695)
Andrew M. Pauwels (P79167)
315 E. Eisenhower Parkway, Suite 100
Ann Arbor, MI 48108
Tel: (734) 418-4256
jstewart@honigman.com

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 CERTIFICATE OF SERVICE

This is to certify that on February 16, 2017, a copy of the foregoing was electronically
filed with the Clerk of the Court using the ECF system which will send notification of such filing
to the attorneys of record.

Respectfully submitted,

HONIGMAN MILLER SCHWARTZ AND COHN

Attorneys for Defendant

By: /s/ James E. Stewart

James E. Stewart (P23254)
Leonard M. Niehoff (P36695)
Andrew M. Pauwels (P79167)
315 E. Eisenhower Parkway, Suite 100
Ann Arbor, MI 48108
Tel: (734) 418-4256
jstewart@honigman.com

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