The brief filed by attorney Larry Klayman asks for a new judge after Judge Rosemary Collyer “mocked” WND’s website and published materials, including articles “questioning the birthplace and birth certificate of Barack Hussein Obama.”
The D.C. statute allows defendants, particularly media and public figures, to file special motions to dismiss lawsuits that keep them from exercising their First Amendment rights.
WND’s suit seeks damages for a report by Esquire’s website that falsely claimed the WND Books exposé “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.
In the brief filed with the U.S. Court of Appeals for the District of Columbia Circuit, Klayman, founder of the D.C. watchdog group Judicial Watch and his current group, Freedom Watch, says the Esquire piece was damaging because it presented the author and publisher in a false light through “wanton and malicious conduct.”
Klayman argues WND CEO Joseph Farah, Corsi, WorldNetDaily.com and WND Books “are world-renowned authors and publishers who have consistently and comprehensively covered the issues related to Mr. Barack Hussein Obama’s eligibility to be president and the validity of his birth certificate.”
The case centers on a May 18, 2011, 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.
Defendants along with Esquire Magazine Inc. are its parent company, the Hearst Corporation, and Mark Warren, the author of the false report.
Faked report by Esquire
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.
“Warren made it a point to publicly call appellants an ‘execrable piece of s—,’” Klayman wrote. “Their acts were intended to be malicious, cause extreme harm and in fact did so.”
Warren had written, “Farah has announced plans to recall and pulp the entire 200,000 first printing run of the book, as well as announcing an order to refund the purchase price to anyone who has already bought either a hard copy or electronic download of the book.”
Then a quote from Farah was manufactured: “This book has become problematic, and contains what I now believe to be factual inaccuracies. I cannot in good conscience publish it and expect anyone to believe it.”
The fabrication continued, with Farah purportedly affirming the book had been canceled.
Klayman’s filing explains that invoking the anti-SLAPP law is invalid, because it conflicts with federal rules of procedure and evidence.
The judge’s bias was evident, Klayman says, because “without even a shred of evidence before her, improperly found that the thesis of appellants’ book in question is ‘inaccurate,’ thus siding with the appellees and herself discrediting appellants’ book.
“She then goes to disparage and mock the plaintiffs, characterizing them as the leaders of the ‘so-called Birther Movement,’” Klayman says.
“This is a well-known pejorative expression used by supporters of Mr. Obama to belittle those who legitimately believe that he was not born in the United States to two American citizen parents and thus [is] not a natural born citizen eligible to run for and be sworn is an president,” he explains
“To top it all off, Judge Collyer then goes outside of the four corners of the complaint and relies on a rambling recitation of wholly unauthenticated Internet postings that also have no bearing on the issues before her, but simply appear to be more condescending and irrelevant remarks questioning appellants’ motives and integrity,” Klayman says.
“In short, Judge Collyer’s written findings and demeanor show that she has prejudged the case, and to make matters even worse, on irrelevant facts. When her memorandum opinion is ultimately reversed, this court is respectfully requested to remand it with instructions to have it randomly assigned to another district court judge.”
As to the offending statements, the appeal brief says Esquire intended to cause damage and did, pointing out the magazine is a competitor of WND.
“Both publish articles on the Internet, and oftentimes the subject matter on both sites overlap on issues such as current news, politics, sexuality, and gun control,” Klayman says in his brief.
Esquire, through its “false publication, caused public confusion as to the accuracy, nature, characteristics, and quality of appellants’ book,” he says.
Klayman told the appeals judges the “false statements” made by Esquire, in its “malicious attempt to sabotage” competitors, damaged WND’s reputation, credibility, and anticipated success.”
Klayman’s motion asks the appeals judges to “reverse the district court’s ruling and hold that appellees’ blog post is not satire protected by the First Amendment but rather that it is commercial speech that falls under the Lanham Act.”
“In addition, this court should respectfully hold that the Anti-SLAPP Act is inapplicable in federal court and that appellant sufficiently pled claims under common law defamation, false light invasion of privacy, and tortuous interference.”
He’s asking the court to turn over the case “to a new district court judge who does not hold a bias against appellants so that appellants may receive a fair trial.”
At the filing of the lawsuit, Farah 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.”
Watch Part 1 of the news conference that presented details of the lawsuit: