WND’s suit seeks damages for a report by Esquire’s website that falsely claimed the WND Books expose “Where’s the Birth Certificate? The Case That Barack Obama Is Not Eligible To Be President” by Jerome Corsi had been recalled and repudiated by the publisher.
Attorney Larry Klayman, who is representing WND in the case, believes the lower-court decision will be reversed.
“We are confident that the issues belong before the D.C. Court of Appeal, and we are also confident of success on the appeal if the court follows its own law and precedent,” Klayman told WND.
In his brief filed with the U.S. Court of Appeal for the District of Columbia, Klayman argued the delay in responding to the appeal is causing “irreparable injury” to appellants Joseph Farah, Jerome Corsi, WND and WND Books, because the “false claims” are still posted on Esquire’s website.
“This defamatory posting seeks to diminish and destroy the reputation of Appellants and their book and the longer it remains the longer it will serve these ends,” Klayman wrote in his brief.
He also argued that the court, according to its Handbook of Practice and Internal Procedures, is required to expedite an appeal when “the decision under review is subject to substantial challenge.” Klayman contends the D.C. anti-SLAPP law, which is designed to protect media and public figures from frivolous lawsuits, does not apply in the District Court for the District of Columbia, citing a recent ruling.
Klayman, founder of the D.C. watchdog group Judicial Watch and his current group, Freedom Watch, previously called the court’s June 4 decision “significantly flawed and intellectually dishonest,” pointing to a recent decision by the same court indicating the anti-SLAPP law does not apply in federal cases.
In an interview in June, Klayman told WND he believed Collyer showed prejudice by making material errors in the case.
He said Collyer prejudged the case, for example, in her material finding that Barack Obama was born in Hawaii, even though Obama’s birthplace was not at issue.
“We will ask that another judge be assigned, because not only did she negligently commit gross errors of fact and law, but she showed she’s biased because of a finding that has nothing to do with the case,” Klayman said in the June interview.
The case centers on a May 18 Internet article by Esquire Executive Editor Mark Warren, who supervises political coverage for the magazine. Warren’s piece purported to cite WND CEO Joseph Farah saying he was destroying hundreds of thousands of copies of Corsi’s explosive new book challenging Obama’s eligibility and issuing refunds because the president had posted his long-form birth certificate.
Immediately, news organizations began contacting Farah for confirmation of the Esquire story, and buyers of the book began requesting refunds.
Esquire later posted a disclaimer, insisting it had “committed satire,” only after Farah issued a statement saying that he was “exploring legal options” against Esquire and Warren.
The complaint charges that Esquire’s disclaimer was as false, misleading and legally actionable as the initial story.
Klayman said the D.C. court “fails to take into account that this is not parody but a commercial attempt to harm WND and Jerome Corsi in publishing the name of the book.”
The attorney argued Collyer’s decision ignores the same federal court’s Feb. 2 ruling that the D.C. anti-defamation statute does not apply in federal cases. In that case, the multinational corporation 3M has accused former Bill Clinton adviser Lanny Davis of engaging in a “defamatory media blitz” against 3M after a business dispute between the company and the manufacturer of a medical product.
Klayman, noting that the decision had been pending for nearly a year, said Collyer ignored three requests for a status conference. It was only after his team’s May 7 letter to the court’s chief judge, Royce Lamberth, he said, that Collyer “apparently commenced in haste to reach this decision, which was poorly reasoned as a matter of fact and law.”
“The decision was so poorly reasoned it rises to a level of negligence, if not a desire to dump the case because it is not palatable to the Washington establishment,” Klayman said.
Defendants along with Esquire Magazine Inc. are its parent company, the Hearst Corporation, and Mark Warren, the author of the false report.
Klayman has explained that D.C.’s anti-SLAPP law makes advancing cases like WND’s difficult, because it essentially requires the plaintiff to prove his case even before discovery.
“Their only defense with regard to defamation is that this was parody,” Klayman said in a previous interview. “Well, that’s not an issue for a judge to decide, that’s an issue for a jury to decide. So she should summarily deny that motion to dismiss.”
Faked report by Esquire
When the suit was filed June 29, Farah, also a plaintiff along with WND Books and Corsi, said, “We are reacting to one of the most egregious abuses of freedom of the press that I have ever witnessed in my 30-plus year career in journalism.”
The legal action was being taken, Farah added, “not because we desire to restrict First Amendment-guaranteed protections, but because we want to police them and guard them.”
The Esquire article stated that Farah announced a plan to “recall and pulp the entire 200,000 first printing of the book, as well as announcing an offer to refund the purchase price to anyone who has already bought either a hard copy or electronic download of the book.”
The suit points out that Warren later told The Daily Caller he had “no regrets” about posting the item and that Corsi was an “execrable piece of sh–.”
Watch Part 1 of the news conference that presented details of the lawsuit: