an anti-SLAPP motion

171 Pages·2016·13.44 MB·English

FILED
DALLAS COUNTY
12/5/2016 6:40:19 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-16-12579

MOHAMED MOHAMED, Individually § IN THE DISTRICT COURT
And on Behalf of Ahmed Mohamed, a Minor §
§
Plaintiffs, §
§
v. §
§ DALLAS COUNTY, TEXAS
THE BLAZE, INC.; GLENN BECK; §
CENTER FOR SECURITY POLICY; §
JIM HANSON; FOX TELEVISION §
STATIONS, LLC; BEN FERGUSON; §
BEN SHAPIRO; BETH VAN DUYNE, §
§
Defendants. § 162ND JUDICIAL DISTRICT

DEFENDANT BEN SHAPIRO’S MOTION TO DISMISS PURSUANT TO THE TEXAS
CITIZENS PARTICIPATION ACT (CHAPTER 27, TEX. CIV. PRAC. & REM. CODE)

TO THE HONORABLE JUDGE OF SAID COURT:
Defendant Ben Shapiro (“Shapiro”) moves to dismiss Plaintiffs’ Original Petition pursuant
to the Texas Citizens Participation Act (“TCPA”) (Chapter 27, Tex. Civ. Prac. & Rem. Code), and
would show the Court the following:
I.
INTRODUCTION

This lawsuit was filed for a single purpose: to chill free speech and public discussion by
any person or broadcaster who dares to criticize or challenge Plaintiffs’ actions and motivations
arising from their voluntary escalation of a routine school disciplinary matter into a subject of
national concern that included a meeting with President Obama and an extended series of media
interviews in which Plaintiffs portrayed themselves as guileless victims of rampant, systemic
discrimination. In commenting on this matter—a matter that Plaintiffs had eagerly made an issue
DEFENDANT BEN SHAPIRO’S CHAPTER 27 MOTION TO DISMISS—PAGE 1
of public concern—on a national cable news channel,1 professional political commentator Shapiro
exercised his constitutionally protected right to speak freely and vigorously take issue with what
Plaintiffs had said and done to generate this controversy to publicize themselves and further their
political and societal goals.
That is their right as Americans. It is equally Shapiro’s right to disagree.
Neither Shapiro nor any of the other defendants defamed Plaintiffs in any of their
comments in these media settings, and neither Texas law nor the United States Constitution support
a cause of action against Shapiro.
First, Shapiro’s statements fall squarely within the scope of constitutionally protected
opinion and/or rhetorical hyperbole, and his statements are nonactionable as a matter of law.
Second, Plaintiffs are required to, but cannot, prove that Shapiro’s statements were made
with “actual malice,” both because Shapiro’s statements are subject to privilege and because
Plaintiffs are “public figures” with respect to the controversy they created and voluntarily
sustained. Shapiro did not make his statements either knowing them to be false or with a reckless
disregard of the truth.2
Third, Plaintiffs cannot satisfy their burden to show that Shapiro’s statements were not
substantially true.
Although any one of these deficiencies is fatal to Plaintiffs’ claims, they are lacking in all
three respects.
Plaintiffs’ motivation in this action is clear: they have sued not just Shapiro and not just in
relation to one broadcast, but several others (including the mayor of Irving, Texas) who dared

1 Ben Shapiro Interview with Megyn Kelly, FOX NEWS–THE KELLY FILE, October 19, 2015, avail. at.
https://www.youtube.com/watch?v=4EBxzusdL7Y, attached as Exhibit A, p. 57.
2 Shapiro stands by his statements, having believed them to be true at the time of their making and continuing to
believe them to be true today. (Shapiro Aff., ¶ 10, p. 44)
DEFENDANT BEN SHAPIRO’S CHAPTER 27 MOTION TO DISMISS—PAGE 2
speak out regarding Plaintiffs in a variety of media. This is exactly the type of case for which the
TCPA was enacted. Plaintiffs cannot leap unreservedly into the public spotlight and then utilize
the courts to attempt to silence anyone who exercises their concomitant right to comment on or
criticize them, or to express opposing viewpoints. This type of “lawfare” is unfair, un-American,
and unacceptable in a free society. Therefore, we respectfully ask this Court to grant this motion,
dismiss this case, and award Shapiro a total of $58,189.38, including $57,183.50 in reasonable
attorneys’ fees and $1,005.88 in court costs and other recoverable expenses, as well as a sanction
in the equivalent amount to deter this conduct in the future.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The events underlying this lawsuit arose when plaintiff Ahmed Mohamed (“Ahmed”), a
minor, took a device to his public high school on September 14, 2015, that caused alarm among
the school staff. (Petition, ¶¶ 29-30) Ahmed claimed the device, which was contained in a pencil
box and contained various wires and electronic components, was an alarm clock he had built as a
science project. (Petition, ¶¶ 29-30) But his teacher, and subsequently other school officials,
cognizant of the sad fact that schools had been previously targeted for murderous attacks, were
concerned that it might be an explosive device. (Petition, ¶¶ 30-31) The police were called and
Ahmed was detained. (Petition, ¶¶ 30-32)
With his father, Mohamed Elhassan Mohamed (“Mohamed”), Plaintiffs subsequently
participated in numerous media interviews claiming that the boy was the victim of “Islamophobia,”
an irrational and bigoted fear of Muslims. The interviews occurred in the national context of
terrorist events perpetrated by Muslims, as well as during an intense public discussion of many
aspects of this phenomenon, including the reaction to, and treatment of, Muslims in society.

DEFENDANT BEN SHAPIRO’S CHAPTER 27 MOTION TO DISMISS—PAGE 3
THE MOHAMEDS
Many of the facts recited below are taken from Plaintiffs’ Original Petition and Request
for Disclosure (“Petition”). For that reason, they must generally be taken as true. “‘Assertions of
fact, not plead in the alternative, in the live pleadings of a party are regarded as formal judicial
admissions.’ Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983). A judicial
admission that is clear and unequivocal has conclusive effect and bars the admitting party from
later disputing the admitted fact. Gevinson v. Manhattan Constr. Co., 449 S.W.2d 458, 467 (Tex.
1969).” Holy Cross Church of God in Christ v. Wolf 44 S.W.3d 562, 568 (Tex. 2001).
When the underlying events began, Mohamed resided in Irving, Texas. (Petition, ¶ 1) His
son Ahmed was 13 years old. (Petition, ¶ 13) They are dedicated Muslims, and Mohamed is an
Islamic clergyman. (Petition, ¶ 14) Mohamed is a United States Citizen who claims to have come
to the United States to escape religious persecution in Sudan. (Petition, ¶¶ 13-14) However, he has
twice run for President of Sudan and apparently intends to do so again in 2020.3 Before this
incident, he had received media attention after he inserted himself into the notorious “Koran
burning” media circus.4

3 See Patrick Michels, Why Mohamed Elhassan, the Dallas Imam Who Played Defense Attorney in Quran-Torching
Church, Says he “Admires” Terry Jones, DALLAS OBSERVER, April 4, 2011, avail. at
http://www.dallasobserver.com/news/why-mohamed-elhassan-the-dallas-imam-who-played-defense-attomey-in-
quran-torching-church-says-he-admires-terry- jones-7130292, attached hereto as Exhibit B, p. 59; see also Sudan
Presidential Contender Vows to Lift US Sanctions in First 100 Days If Elected, SUDAN TRIBUNE, Feb. 16,
2015, avail. at http://www.sudantribune.com/spip.php?article54000, attached hereto as Exhibit C, p. 62; see Nina
Golgowski, Father of Muslim Teen Arrested for Clock Previously Battled Fla. Koran Burner, Has Run for President
of Sudan Twice, NEW YORK DAILY NEWS, September 16, 2015, attached hereto as Exhibit D, p. 65; see also
Jessica Contrera, A Year Ago, Ahmed Mohamed Became ‘Clock Boy. ‘Now, He Can’t Escape That Moment, THE
WASHINGTON POST, August 2, 2016, avail. at https://www.washingtonpost.com/lifestyle/style/a-year-ago-ahmed-
mohamed-became-clock-boy-now-he-cant-escape-that-moment/20l6/08/02/2b8650be-484b- l 1e6-bdb9-
70l 687974517_story.html, attached hereto as Exhibit E, p. 69.
4 See Exhibits B and D, pp. 59-61, 65-68.
DEFENDANT BEN SHAPIRO’S CHAPTER 27 MOTION TO DISMISS—PAGE 4
THE “ALARM CLOCK” AND THE REACTION TO IT
Before the “alarm clock” incident, Ahmed attended Sam Houston Middle School. (Petition,
¶¶ 13, 18) Plaintiffs claim that the staff at the school interfered with him practicing his faith,
unfairly punished him, and that one staff member (“Mr. Nguyen”) “was known to have racial bias.”
(Petition, ¶¶ 22-26)
At the time of the “alarm clock” incident, Ahmed was a 13-year-old student at MacArthur
High School. (Petition, ¶¶ 13, 27) He made a device the Petition refers to as the “alarm clock”:
He found an old 8½” by 5” Vaultz pencil box from middle school (still sold on
Amazon with animals, butterflies, etc.), a 7 segment display, a pcb board, a 9 volt
battery, some wires (from a media player that wasn’t working), a 120-240 volt
transformer, a button board and some tools. On Sunday night, after returning from
skating with some friends, he soldered the battery connector to the pcb board giving
it back-up power. He then soldered the transformer to the pcb board which powers
the seven segment display and the alarm clock bell. He screwed the display into the
pencil box. The “alarm clock” would make a beeping noise when the set time was
reached. He put the clock in his backpack like he always did. (Petition, ¶ 29)5

According to the Petition, Ahmed’s intention was to show the “alarm clock” to one of his
teachers. (Petition, ¶ 29 (“In Ahmed’s mind, he built the clock to show to Ms. West.”)) However,
as the Petition relates, Ms. West saw the item with its electronics and wires, and she was concerned
that it might be an explosive device—a concern that arose in the context of bloody terrorist attacks
and school massacres around the country:
On Monday, September 14, 2015, Ahmed took the pencil box out of his backpack
and showed the clock to his Geometry and Architecture teacher, Mr. Lemons. Mr.
Lemons told Ahmed that the clock was “really nice,” but advised that he should
keep it in his backpack. During 4th period English, Ahmed could not resist showing
how his clock worked to another student and it made a beeping sound. Ms. West
heard the noise but didn’t know where it came from. Ahmed waited until class was
over and the other students were gone when he reminded Ms. West that he had told
her he was going to build something that weekend and bring to show it to her. He
asked her if she wanted to see it and she said that she did. Ahmed plugged the clock

5 Reverse Engineering Ahmed Mohamed’s Clock… and Ourselves ARTVOICE, September 17, 2015, avail. at.
http://blogs.artvoice.com/techvoice/2015/09/17/reverse-engineering-ahmed-mohameds-clock-and-ourselves/,
attached hereto as Exhibit F, p. 79.
DEFENDANT BEN SHAPIRO’S CHAPTER 27 MOTION TO DISMISS—PAGE 5
in and showed her how it worked. Ms. West asked Ahmed “is that a bomb?” Ahmed
was surprised and confused. In all the many times he had built contraptions and
taken them to his teachers, none had ever asked him that. Ahmed replied, “no, it’s
an alarm clock, see?” Ms. West then told Ahmed she would hold it for him and give
it back at the end of the day. She placed the pencil box on her desk. (Petition, ¶ 30)

Photographs of the device were later released to the media by the police.6

The high school principal and an Irving Police officer later took Ahmed out of class.
(Petition, ¶ 32) During his subsequent interrogation with several other police officers and school
staff, Ahmed claims he “never represented that it was anything else [other than an alarm clock],
he never made any threats of harm, he never said he had a bomb, and he never attempted to scare
anyone or cause alarm.” (Petition, ¶ 33) Ahmed wrote a statement “that he made an alarm clock
and the authorities thought it was a bomb (as that was what they were telling him).” (Petition, ¶
35) The Irving Police took Ahmed into custody. (Petition, ¶ 36) Plaintiffs allege that “[w]hile
police memos characterize Ahmed as “yelling” and “rude,” he was neither yelling nor rude, simply
attempting to explain why it seemed like his [electronic] tablet (not the pencil box) should be
returned to him.” (Petition, ¶ 43) An officer “threaten[ed] that if the family did not leave

6 Exhibit F, p. 79.
DEFENDANT BEN SHAPIRO’S CHAPTER 27 MOTION TO DISMISS—PAGE 6
immediately, there would be criminal charges brought against them, too.” (Petition, ¶ 43) The
criminal charges were dropped, but the school “district disciplined Ahmed and placed him on a
three-day suspension” for “violation of the Student Code of Conduct, possession of prohibited
items.” (Petition, ¶ 44)
THE MEDIA AND THE INTENSE POLITICAL CONTROVERSY
These events quickly became the subject of a media firestorm pitting those, led by Plaintiffs
themselves, who considered the event an example of “Islamophobia” against those who argued
that this was a reasonable reaction by government officials considering the terrorist threat and the
recent school massacres, and that the claims of “Islamophobia” were being asserted with the
substantial motive of pursuing a political agenda. The “Clock Boy” issue quickly became the
forum for a societal debate of critical political issues of critical public interest, including both
alleged prejudice against Muslims and the use of claims of prejudice against Muslims to shame
and silence critics of Islamic terrorism within the umbrella of what is sometimes labeled by critics
as “political correctness.” (See Petition, ¶¶ 28-61)
The Petition recites that the controversy was covered by media defendant The Blaze on
September 22, 2015. (Petition, ¶¶ 46-48) The Petition also alleges the controversy was covered by
Fox 4 News. (Petition, ¶ 53; see generally KDFW Defendants’ Original Answer, Special
Exceptions, Verified Plea And Affirmative Defenses To Plaintiffs’ Original Petition). Both outlets
discussed the controversy over the reaction to the events. (Petition, ¶¶ 46-48, 53)
The news media coverage, however, was far more extensive than the recitations in the
Petition. Besides The Blaze and Fox News, the events were covered by The Washington Post
DEFENDANT BEN SHAPIRO’S CHAPTER 27 MOTION TO DISMISS—PAGE 7
(Exhibit E, p. 69), Time magazine,7 the Huffington Post,8 as well as other talk shows.9 His notoriety
was such that Ahmed even inspired a Halloween costume,10 and he candidly admitted his celebrity
status in an interview with defendant KDFW.11 He did likewise to a reporter from The Daily Beast:
Ahmed Mohamed is watching himself trend on my iPhone.

“Man, I went viral.”

Ahmed’s looking at a video of himself posted online, while he and his sister Eyman
argue inside the family minivan over whether it has 24 million or 24,000 views.

“This is seven digits!” It’s 24 million views, in 24 hours,” Ahmed yelps. “I feel like
I could just walk on the street and people would know who I am.”

The level of fame he’s achieved 24 hours after his suspension, arrest, and
interrogation at MacArthur High School for a “bomb” that was really a clock has
gone beyond the streets of Irving. President Obama has invited him to the White
House. MIT wants him to enroll. Mark Zuckberg wants him to work at Facebook.
Every reporter on Earth wants a few minutes with him, including me.12

In his dealings with the press, the family spokesperson was one Alia Salem, Executive
Director for the Dallas-Ft. Worth chapter of the Council on American-Islamic Relations (CAIR).
CAIR is a controversial Islamic activist group that was named as an unindicted co-conspirator in
a terrorist trial.13

7 The 30 Most Influential Teens of 2015, TIME, October 27, 2015, avail. at http://time.com/4081618/most- influential-
teens-2015/, attached hereto as Exhibit G, p. 93.
8 See also Mollie Reilly, Ahmed Mohamed Visits the White House, Meets Obama, HUFFINGTON POST, Oct. 19, 2015,
avail. at http://www.huffingtonpost.com/entry/ahmed-mohamed-white-house_us_5625175ee4b0bce347017449,
attached hereto as Exhibit H, p. 110.
9 See Exhibit E, p. 69.
10 ‘Clock Boy’ Now a Halloween Costume, FOX 4 NEWS, Oct. 6, 2015, avail. at
http://www.fox4news.com/trending/30553958-story, attached hereto as Exhibit I, p. 115.
11 What’s Next for “Clock Boy,” FOX 4 NEWS, June 28, 2016, avail. at http://www.fox4news.com/news/167001384-
story, attached hereto as Exhibit J, p. 120.
12 Randy R. Potts, ‘Man, I Went Viral’: My Day with Ahmed Mohamed, the Most Famous Boy on Earth: On the Road
to Stardom from The Back Seat of The Family’s Minivan, THE DAILY BEAST, September 17, 2015, avail. at.
http://www.thedailybeast.com/articles/2015/09/17/man-i-went-viral-my-day-with-ahmed-moahmed-the-most-
famous-boy-on-earth.html, attached hereto as Exhibit K, p. 123.
13 Neil MacFarquharaug, Muslim Groups Oppose a List of ‘Co-Conspirators’, NEW YORK TIMES, August 16, 2007
avail. at. http://www.nytimes.com/2007/08/16/us/16charity.html, attached hereto as Exhibit L. p. 135 (“The
unindicted co-conspirators were named in the case against the Holy Land Foundation for Relief and Development,
which opened July 16. The charity and five of its officers are accused of providing material support for terrorism by
DEFENDANT BEN SHAPIRO’S CHAPTER 27 MOTION TO DISMISS—PAGE 8
There was immediate doubt in the press about the veracity of the Mohamed family’s
claims. Key questions were unanswered, and the family’s behavior was seen as suspicious.14
Others dug deeply into the mechanics of the “alarm clock” and raised questions.15
Moreover, the federal government also became involved, specifically regarding the very
issues of discrimination and profiling that had dominated the controversy:
The United States Department of Justice has opened an investigation into the
conduct of the Irving Independent School District, not just with respect to the
treatment of Ahmed Mohamed, but regarding its pattern of discrimination. A justice
department official stated that “the Civil Rights Division has an investigation into
the Irving School District regarding both harassment and the discipline of students
on the basis of race, religion and national origin.” (Petition, ¶ 45)

Even President Obama intervened, exponentially increasing public awareness of the
controversy. He sent the following “tweet” from his verified Twitter account (with the username
@POTUS) at 9:58 a.m. on September 16, 2015:
Cool clock, Ahmed. Want to bring it to the White House? We should inspire more
kids like you to like science. It’s what makes America great.16

The President’s “tweet” was extremely popular. President Obama, as of November 30,
2016, had over 12.3 million “followers,” people who would see whatever he “tweeted.” The
“tweet” had garnered 408,877 “re-tweets” and 441,441 “likes” as of November 30, 2016.17
(Schlichter Aff., ¶ 16, p. 51) These are astonishingly high numbers. (Schlichter Aff., ¶ 16, p. 51)

funneling millions of charitable dollars to the Palestinian organization Hamas. The federal government ordered the
foundation shuttered in December 2001.”); see also Exhibit A, p. 57.
14 See, e.g., Daniel Payne, 6 Unanswered Questions About Ahmed Mohamed’s Clock: It’s reasonable and even
necessary to be a bit skeptical of extraordinary stories such as the one about Ahmed Mohamed getting hauled out of
school for making a clock, THE FEDERALIST, September 23, 2105, avail. at. http://thefederalist.com/2015/09/23/6-
unanswered-questions-about-ahmed-mohameds-clock/,attached as Exhibit M, p. 138.
15 See Exhibit F, p. 79.
16 Available at https://twitter.com/POTUS/status/644193755814342656, attached hereto as Exhibit N, p. 142.
17 A “re-tweet” means another Twitter user saw the “tweet” and “re-tweeted” it out to his own followers, expanding
the reach of the message. A “like” indicates that the reader registered his approval of the message. (Schlichter Aff., ¶
16, p. 47)
DEFENDANT BEN SHAPIRO’S CHAPTER 27 MOTION TO DISMISS—PAGE 9
President Obama also invited Plaintiffs to attend an event at the White House, and news
cameras captured the President’s subsequent meeting with Ahmed. (Petition, ¶ 57; Exhibit A, p.
57)
As of November 18, 2016, a Google search for the term, “Clock Boy” returned “about
41,600,000 results.” (Schlichter Aff., ¶ 17, p. 52; Exhibit O, p. 143)
BEN SHAPIRO IS A NOTED JOURNALIST AND POLITICAL COMMENTATOR
Ben Shapiro is a New York Times bestselling author, daily radio personality, and political
commentator. (Shapiro Aff., ¶¶ 2-5, pp. 42-43) For over 15 years, he has commented on the
important issues facing America, both political and cultural. (Shapiro Aff., ¶¶ 2-5, pp. 42-43)
These have included the issues of Islamic extremism and “political correctness.” (Shapiro Aff., ¶
3, p. 42) In fact, his bestselling book Bullies: How the Left’s Culture of Fear and Intimidation
Silences Americans discusses related issues in detail, criticizing the tactic of silencing opponents
with false claims of moral failings such as “racism” and “Islamophobia.”18 (Shapiro Aff., ¶ 3, p.
42) The matters surrounding the “Clock Boy” controversy are exactly the type of issues Shapiro
routinely addressed in various media. (Shapiro Aff., ¶ 7, p. 43)
Shapiro is a media figure. At the time of the broadcast in question, Shapiro was both
editor-in-chief of DailyWire.com and editor-at-large with Breitbart News, outlets that both
specialized in political and cultural debate. (Shapiro Aff., ¶ 4, p. 43) At the time, he was the host
of two different radio programs that focused on political and cultural debate. (Shapiro Aff., ¶ 4, p.

18 The Amazon.com promotional page for Bullies describes Shapiro’s thesis as follows: “Bullying has morphed into
the left’s go-to tactic, as they attempt to quash their opponents through fear, threat of force, violence, and rhetorical
intimidation on every major issue facing America today… .In Bullies, Ben Shapiro uncovers the simple strategy used
by liberals and their friends in the media: bully the living hell out of conservatives. Play the race card, the class card,
the sexism card. Use any and every means at your disposal to demonize your opposition—to shut them up.” Avail. at.
https://www.amazon.com/Bullies-Culture-Intimidation-Silences-Americans/dp/1476710007, attached hereto as
Exhibit P, p. 145.
DEFENDANT BEN SHAPIRO’S CHAPTER 27 MOTION TO DISMISS—PAGE 10