MEMORANDUM

This is a Rule 12(b)6 Motion to Dismiss

Although this is a Rule 12 Motion, defendant’s counsel feels constrained to briefly comment on the substantive allegations contained in plaintiff’s Complaint. Paragraph 10 of the Complaint states "Plaintiff feels it would be impossible for the defendants to find a conscious attorney." The defendant’s attorney has been called a lot of different things, but never unconscious. This Memorandum was in fact definitely prepared during a conscious interval.

Paragraph 2 of the Complaint states that all laws of the United States are "radiant" of the First Amendment to the Constitution. Counsel would like to admit the accuracy of the averments contained in paragraph 2 of the Complaint, particularly since he has been commonly pressed himself to assert that the First Amendment is radiant. However, after consulting a dictionary (definition included in Exhibit A attached hereto, such an "admission" is in fact impossible. It is true that the First Amendment "shines brightly" (first definition). However, unfortunately, not all courts have agreed that all American law "issues from" the First Amendment. (Third definition).

The total sum and substance of this dispute (and indeed much more) is contained in plaintiff’s Complaint, the preamble, and the declaration of human rights which accompany it. Plaintiff submitted a rather long "pro-life" letter to the Akron Beacon Journal during the debate over the Akron Abortion Ordinance. Plaintiff then became offended, (a) originally when the letter was not run at all, (b) when only one sentence of the letter was run in excerpted form.

Although plaintiff is presumably sincere, there is in fact absolutely no basis in America for compelling a newspaper to accept the editorial comment of a third person. Although admittedly some aspects of First Amendment law are vague at the present time, this is, in point of fact, one of the few which is not. See Miami Herald v. Tornillo, 418 U.S. 241 (1974).

"A newspaper is more than a passive receptacle or conduit for news, commend, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials – whether fair or unfair – constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulations of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. "Tornillo, supra, at p. .

The constitutional principle again recognized in the Tornillo case is clear and unmistakable. Although plaintiff feels that his letters contained "inspired messages" (paragraph 6), there is no way that he can compel defendant or anyone else to print them. (paragraphs 4, 6 and 9).

As plaintiff’s own exhibits clearly reflect, all letters to defendant are submitted subject to condition that they "are subject to editing." A review of the submitted letter and the one sentence actually printed clearly indicates that the editing was accurate. Only one word was changed, which did not change the sense of the sentence. There clearly exists no contract whether actual or implied, between plaintiff and defendant.

Plaintiff’s Complaint should be dismissed with prejudice.

Respectfully submitted,

ROETZEL AND ANDRESS

By__________________________

Norman S. Carr
20^th Floor – 1 Cascade Plaza
Akron, Ohio 44308
(216) 376-2700
ATTORNEYS FOR DEFENDANT

PLAINTIFF'S ANSWER TO NORMAN CARR

All future paper work is to be submitted in the plaintiff’s God given hand.

TOM KISS (Edward Thomas Kiss)

A Citizen Defending his Natural Rights Under the Law.

GROUND LEVEL

I walk with the people.

Uniontown, Ohio 44685

March 13, 1979

Norman Carr:

Your first obligation according to oath is justice. Norman has found point with the case Miami Herald vs. Tornilla. Plaintiff recognizes this case should first be petitioned by plaintiff in order to correct its erroneous finding. Then the original case in point, Tom Kiss vs. the Akron Beacon Journal, should be dealt with on it’s own merits before the public eye so justice is served. Justice places no time barrier on her balance. Enclosed is full comment on Norman Carr’s attitude.

EASTERN DIVISION

Tom Kiss (Edward Tom Kiss)

Plaintiff

v.

Defendant

Akron Beacon Journal 

case: C79-331A

Judge Leroy J. Contie

Motion to deny Norman Carr’s rule
12(b) 6 motion and delay case
C79-331A ‘til Miami Herald v
Tornillo can be rectified

Now comes the plaintiff with a motion to delay Tom Kiss v. Akron Beacon Journal so the plaintiff can petition the government to correct their erroneous finding. Also a warning is issued by Citizen Tom Kiss to the courts for their inability to adequately inform the plaintiff on procedural details so his ignorance of these matters will not offend the serving of justice. A letter to Chief Justice Burger through certified mail has been sent to enlighten him of the infringements upon the plaintiff’s 14^th amendment rights. A copy will be addressed to the courts and Judge Leroy J. Contie Jr. through certified mail to be used as public record.

Honestly,

Edward Tom Kiss
A citizen defending his natural rights under the law

MEMORANDUM

This motion to delay Tom Kiss v. Akron Beacon Journal and to dismiss Norman Carr’s motion because by his admission it is prejudicial.

In response to paragraph one of Norman Carr’s motion the plaintiff did not advise Norman Carr to take his faulty stance. The plaintiff advised anyone if they did so it was because they were not aware of the factual case at hand. They would be fooling themselves if they did not realize the defense of the common citizen is actually on trial.

Next Norman Carr tries to play foully with the word radiant. Anything that radiates out, comes from a central source, when something beams, where do the beams come from? The constitution is the supreme law of the land. In interpreting the constitution, it is first necessary to keep in mind it’s central purpose as stated in the preamble. The constitution is the format for establishing a means of governing. The "Bill of Rights" is a protection of those who are governed. The first correction to the new living government is the First Amendment. It is the protection of freedom and liberty of the individual. It protects the God given rights of anyone reading this statement. All laws are radiant of the First Amendment. All citizens are important. We have no country, no society without the citizenry. It is not a matter of conjecture; it is a matter of fact.

The total sum and substance mentioned in paragraph three to this dispute would have been taken no further than the first printing, for the defendants accepted the plaintiff’s writing as truth according to the notation written on the reverse side of the original writing. How can anyone edit the truth, the whole truth and nothing but the truth without disrupting justice? They printed. They are responsible for admitting their mistake. The plaintiff’s original writing is relatively short when you consider what has transpired in this pursuit of justice.

There is in fact an absolute responsibility for a newspaper to accept editorial comment of a third person. They are a relay, an intermediate between the first and third person. They are responsible to relay the news as freely and unabridged so truth and free mindedness can prevail. At this time there is evidence to discredit the justice in the Miami Herald v. Tornilla, 418 U.S. 241 (1974). Watergate proved power used with negative means can only lead to destructive ends. Jim Jones did not advocate open communication but operated from a position of lies and deception. This is the breakdown of civilization. March 9, 1979 the government of the United States announced it was filing suit against publication by a reporter on details for building a hydrogen bomb. The written word is a social matter and the general welfare must be considered in every written or spoken word so trust and truth and peace may be a reality on earth.

A newspaper is first and foremost a relayer of news. The choice of material going into a paper should bear precedence by its news value. Citizens buy a newspaper first for the news. This is the reason for their circulation. A man of justice would immediately question a decision which would state - - whether fair or unfair - - justice is naturally based on fairness (Miami Herald v. Tornilla, 418 U.S. 241(1974)). The members of a press are citizens first. The same law which governs any citizen also governs a member of the press. For a press to be free, the society in which it functions must be free. No individual or conglomerate is above the law.

The plaintiff is inspired to serve justice. The press is not the law.

Finally, question is raised as to what is editing? Defendants claim it is retaining a writer’s central thought. The plaintiff’s central thought at all times is that we must be responsible. It is the only way to be fair and just.

The plaintiff loves freedom and reason. Things must be logical to be understood. They must answer the question "why?" To tell someone something is so without reason is dictating to them. There is no reason in what the defendant printed of the plaintiff’s original message. The sentence is a dictate because the defendant extracted the reason which defames the character of the plaintiff. There is an exact social contract between the plaintiff and the defendant. The defendant advertises that it prints the news. They are responsible to fulfill that obligation.

Norman Carr’s rule 12 motion ends by stating the plaintiff’s complaint should be dismissed with prejudice. Because of prejudice is not a good reason. Prejudice should never rule. That motion would not serve justice.

Tom Kiss

Actually Norman Carr did not serve his motion, rule 12(b) 6 properly. There is no guarantee the plaintiff would have received copy, U.S. certified mail documents by an impartial third party delivery.

Plaintiff’s only request is basically the Akron Beacon Journal made a mistake and should humble themselves and admit to it. We all make errors, but not facing them and correcting them is foolish and unwarranted.

NORMAN CARR'S REBUTTAL

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DEFENDANT’ S REPLY MEMORANDUM IN
SUPPORT OF RULE 12(b)6 MOTION TO
DISMISS.

Plaintiff has sent certain papers to counsel of record for defendant. Defendant assumes that said papers have been filed with the Court. A copy of said papers is attached to this Memorandum and denominated Exhibit A.

Plaintiff recognizes that the Tornillo case would deny his requested recovery and continues to assert that "there is in fact an absolute responsibility for a newspaper to accept an editorial comment from a third person." Tornillo is directly to the contrary. Disposition of the pending case should not be indefinitely delayed while plaintiff is "petitioning the government (and Chief Justice Burger) to correct their erroneous finding."

Respectfully submitted,

ROETZEL AND ANDRESS

Norman S. Carr
20th Floor - 1 Cascade Plaza
Akron, Ohio 44308
(216) 376-2700

CERTIFICATE OF SERVICE

A copy of the foregoing Defendant's Reply Memorandum in Support of Rule 12(b)6 Motion to Dismiss has been sent to plaintiff individually, Mr. Edward Thomas Kiss, at 3662 Edison, N.W., Uniontown, Ohio, Box 461, 44685, by first class U.S. mail, postage prepaid, this 15th day of March, 1979.

Norman S. Carr

“We are ourselves free and our paper shall be free - free as the constitution we enjoy - free to truth, good manners and good sense. We shall be for whatever measure is best adapted to defending the rights and liberties of the people and advancing useful knowledge. We shall labor at all times to inspire the people with a just and proper sense of their condition to point out to them their true interest and rouse them to pursue it.”

C.L. Knight
Publisher 1907 - 1933