IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

CHARLOTTESVILLE DIVISION

BRENNAN M. GILMORE,
Plaintiff,
v. Case No. 3:18- cv-00017 (GEC)
ALEXANDER E. JONES, et al.,
Defendants.

FREE SPEECH DEFENDANTS’ MOTION TO DISMISS PURSUANT TO TEXAS

CITIZENS PARTICIPATION ACT, VA. CODE § 8.01-223.2, RULES 12(B)(2) AND (B)(6)
AND MOTION FOR COSTS, ATTORNEY FEES, AND SANCTIONS
Pursuant to the Texas Citizens Participation Act, Va. Code § 8.01-223.2, Rule 12(b)(2),

and Rule 12(b)(6), Defendants Alex Jones, Lee Ann McAdoo, InfoWars, LLC, and Free Speech

Systems, LLC (collectively, the “Free Speech Defendants”) respectfully move the Court for

dismissal of this action and for an award of costs, attorney fees, and sanctions.

As shown in the accompanying memorandum, Plaintiff Brennan Gilmore’s defamation

and emotional distress claims against the Free Speech Defendants are barred by the First

Amendment and fail to state a claim upon which relief can be granted, whether considered under

Texas or Virginia law. As for the defamation claims, first, they fail as a matter of law because

they do not identify any statements that bear a defamatory connotation. Second, the complaint

fails to plausibly allege that any of the challenged statements are materially false. Third, the First

Amendment bars liability for the non-verifiable statements of opinion that Gilmore challenges.

And, fourth, the complaint fails to plausibly allege actual malice as the First Amendment

requires.

Likewise, Gilmore’s claim for intentional infliction of emotional distress fails as a matter

of law because it alleges no outrageous conduct, comes nowhere near alleging the kind of serious

injury that is required, and is unsupported by any plausible allegation of actual malice as the First

Amendment requires.

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 These defects require dismissal of Gilmore’s claims against the Free Speech Defendants

pursuant to the Texas Citizens Participation Act, Tex. Civ. Prac. & Rem. Code § 27.001 et seq.,

or (in the alternative) Virginia’s anti-SLAPP statute, Va. Code § 8.01-223.2. They also support

dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6).

Finally, all of Gilmore’s claims must be dismissed under Rule 12(b)(2) because his

complaint identifies no applicable contacts that the Free Speech Defendants have with Virginia

and so has provided no basis for the Court’s exercise of personal jurisdiction over them.
Dismissal pursuant to Texas Citizens Participation Act entitles the Free Speech

Defendants to an award of costs and attorney fees, as well as “sanctions…sufficient to deter the

party who brought the legal action from bringing similar actions.” Tex. Civ. Prac. & Rem. Code

§ 27.009. Likewise, Va. Code § 8.01-223.2 requires or at least encourages an award of costs and

attorney fees so as to further the purposes of the statute: protecting SLAPP targets from suffering

the consequences of abusive litigation and deterring abusive litigation.

For these reasons, the Free Speech Defendants respectfully request that the Court dismiss

Counts 1, 7, 8, and 10 of the Complaint, as pertains to them, and find that the Free Speech

Defendants are entitled to an award of costs, attorney fees, and sanctions. A memorandum of

points and authorities and proposed order accompany this motion.

April 10, 2018 Respectfully submitted,

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TREMBLAY & SMITH, PLLC BAKER HOSTETLER LLP

Thomas E. Albro (VSB #12812) /s/ Elizabeth A. Scully

Evan D. Mayo (VSB #89383) Elizabeth A. Scully (VSB #65920)
105-109 E. High Street Mark I. Bailen (Pro Hac Vice forthcoming)
Charlottesville, VA 22902 Andrew M. Grossman (Pro Hac Vice
Telephone: (434) 977-4455 forthcoming)
Facsimile: (434) 979-1221 Richard B. Raile (VSB #84340)
tom.albro@tremblaysmith.com Washington Square, Suite 1100
evan.mayo@tremblaysmith.com 1050 Connecticut Avenue, N.W.
Washington, DC 20036-5304
Co-Counsel for Defendants Alexander E. Telephone: (202) 861-1500
Jones, Infowars, LLC, Free Speech Systems, Facsimile: (202) 861-1783
LLC and Lee Ann McAdoo a/k/a Lee Ann escully@bakerlaw.com
Fleissner mbailen@bakerlaw.com
agrossman@bakerlaw.com
rraile@bakerlaw.com

Counsel for Defendants Alexander E. Jones,

Infowars, LLC, Free Speech Systems, LLC
and Lee Ann McAdoo a/k/a Lee Ann Fleissner

WALLER LANSDEN DORTCH & DAVIS,

LLP

Eric J. Taube
100 Congress Avenue, Suite 1800
Austin, TX 78701
Telephone: (512) 685-6401
eric.taube@wallerlaw.com

Robb S. Harvey
511 Union Street, Suite 2700
Nashville, Tennessee 37219
Telephone: (615) 244-5380
robb.harvey@wallerlaw.com

Of Counsel for Defendants Alexander E.

Jones, Infowars, LLC, Free Speech Systems,
LLC and Lee Ann McAdoo a/k/a Lee Ann
Fleissner

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 CERTIFICATE OF SERVICE

I hereby certify that on April 10, 2018, I electronically filed the foregoing with the Clerk

of Court using the CM/ECF system, which will send notification of such filing to all counsel of

record.

/s/ Elizabeth A. Scully________________

Elizabeth A. Scully (VSB #65920)
Washington Square, Suite 1100
1050 Connecticut Avenue, N.W.
Washington, DC 20036-5304
Telephone: (202) 861-1500
Facsimile: (202) 861-1783
escully@bakerlaw.com

Case 3:18-cv-00017-GEC Document 15 Filed 04/10/18 Page 4 of 4 Pageid#: 272

 IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Charlottesville Division

BRENNAN M. GILMORE,
Plaintiff,
v. Case No. 3:18- cv-00017 (GEC)
ALEXANDER E. JONES, et al.,
Defendants.

(Proposed) Order Granting Free Speech Defendants’

Motion to Dismiss and Motion for Costs, Attorney Fees, and Sanctions
This matter comes before the Court on the Motion to Dismiss and Motion for Costs,

Attorney Fees, and Sanctions filed by Defendants Alex Jones, Lee Ann McAdoo, InfoWars, LLC,

and Free Speech Systems, LLC (collectively, the “Free Speech Defendants”). The Court, having

considered the papers filed in support of the Motions and the opposition thereto, finds the motions

meritorious.

ACCORDINGLY, IT IS ORDERED that the Free Speech Defendants’ Motion to Dismiss

is GRANTED. Therefore, all of Plaintiff’s claims against the Free Speech Defendants are

dismissed with prejudice.

IT IS FURTHER ORDERED that the Free Speech Defendants’ Motion for Costs, Attorney

Fees, and Sanctions is GRANTED. The Court finds, pursuant to Tex. Civ. Prac. & Rem. Code
§ 27.009 or Va. Code § 8.01-223.2, that the Free Speech Defendants are entitled to an award of

costs and attorney fees in an amount to be proven. The Court finds, pursuant to Tex. Civ. Prac. &

Rem. Code § 27.009 that the Free Speech Defendants are entitled to an award of sanctions to be

determined.

Accordingly, the Court Orders the Free Speech Defendants to submit a bill of costs and

fees and a memorandum concerning sanctions within 21 days of service of this Order. The Plaintiff

may submit any opposition to the requested amount of costs, fees, and sanctions within 14 days

thereafter, and the Free Speech Defendants may respond to any opposition within 7 days thereafter.

Case 3:18-cv-00017-GEC Document 15-1 Filed 04/10/18 Page 1 of 2 Pageid#: 273

 IT IS SO ORDERED.

Dated: _____________________ By: _____________________________

The Honorable Glen E. Conrad
U.S. District Court Judge

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