Federal Judge Stephen F. Williams asked the attorney for Esquire magazine what in the First Amendment permitted his client to accuse someone of making money off of gullible readers?
That question suggested the crux of the matter in the lawsuit brought by WND against Esquire: If a political attack is called satire, is any message permissible, even if it cause damages?
The United States Court of Appeals for the District of Columbia Circuit heard oral arguments Thursday in Joseph Farah v. Esquire Magazine. Farah is the founder and CEO of WND.com.
WND filed a $250 million defamation suit against Esquire magazine and its publisher, Hearst, because of a May 18, 2011, report on the magazine’s website by Executive Editor Mark Warren 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 publisher WND Books and by Farah.
Esquire argued the article was satire and is entitled to First Amendment protection. The WND suit, however, contends the article is not protected by the First Amendment, because its publication caused real damage by defaming WND and suppressing book sales. Many potential book buyers and media members clearly believed the article was a news story reporting the demise of the book, not a work of satire.
WND is appealing a decision in June 2012 by Judge Rosemary Collyer of the U.S. District Court in D.C. to grant Esquire’s motion to dismiss the case based on D.C.’s anti-SLAPP law, which protects media and public figures from frivolous lawsuits regarding their First Amendment rights.
After Judge Williams asked Esquire's attorney what in the First Amendment allowed Esquire to accuse WND of making money off gullible readers, defense attorney Jonathan R. Donnellan called the article in question "classic satire" and deserving of special protections.
Furthermore, Donnellan claimed satire is "designed to fool readers." But then, he made just the opposite argument, insisting "reasonable readers" should have been able to tell it was satire.
That remark prompted Judge Janice Rogers Brown to note that Farah had said he received calls from the top editors of major media companies from all over the country, asking if the story was true.
She asked Donnellan if he would consider those top media professionals to be "reasonable readers?"
He replied there were "clues" embedded in the text indicating it was satire, and therefore reasonable readers should know.
But Farah's attorney, Larry Klayman, told the three-judge panel the article was originally published as "breaking news," complete with a siren and with no indication it was satire.
Klayman pointed out that Esquire was compelled to publish a disclaimer 90 minutes after the article appeared, and the first words were, "For those of you who didn't figure it out."
Klayman asserted that was an obvious admission by Esquire that its readers were mistaking the article for real news.
Judge Williams observed many readers don't recognize satire and asked Klayman if the instance was similar to the Larry Flynt case in which the late publisher of Hustler was sued by the late Jerry Falwell after the magazine published derogatory satire about him. The Supreme Court voted unanimously in favor of Flynt, ruling that reasonable people would have recognized the outrageous claims as parody.
Klayman replied that the Esquire case was not like the Flynt case because it was not obvious the Esquire article was satire, and that is why the magazine felt compelled to publish a disclaimer just 90 minutes later.
The former Reagan Justice Department prosecutor added that the article was clearly done to harm WND, which consequently suffered damage to its reputation and a great loss of money.
Furthermore, Klayman contended, Esquire had committed libel by accusing WND of fraud, and the magazine had promoted something it knew not to be true.
He said Esquire had a motive to harm WND's sales because it is a commercial competitor and its disclaimer had a segment that essentially said "don't read them, read us" on the issue of President Obama's place of birth.
Judge Judith W. Rogers asked Klayman if WND had challenged the document purported to be Obama's birth certificate as forged?
Klayman replied that the issue was not relevant to the trial.
He told WND the bottom line is it is not about the issue of President Obama's birth place or his birth certificate, it is about the marketability of a book destroyed by a competitor, for whatever reason.
The attorney said the article was "shockingly real" and the whole effect was to get booksellers to cancel orders.
Klayman told WND it’s “a landmark case that could makes it all the way to the Supreme Court.”
“At issue is whether or not the media and public figures get special protection from defamation laws in this country. The answer should be no, as no one should be above the law,” he said.
If the appeals court doesn’t strike all of Esquire’s pleadings, Klayman is asking it to send the case back to the district court and assign a new judge.
As WND reported, in a previous brief, Klayman charged that Collyer showed bias and prejudice against WND in her dismissal of the complaint.
Collyer, he wrote, “took it upon herself to make an inappropriate and irrelevant finding that Mr. Obama was born in the United States, which issue had nothing to do with this case.”
Her opinion, he said, “unnecessarily expresses a negative ‘worldview’ against the Appellants because they are so called “birthers,” who believe that President Barack Hussein Obama is not a natural born citizen, as required for eligibility for the Office of President of the United States by Article II of the U.S. Constitution.”
Esquire and Hearst insist the statements in the article “on their face are not actionable because they are incapable of being understood as actual statements of fact or because they are expressions of opinion.”
“Anyone familiar with Plaintiffs’ very public, unyielding insistence that the President’s birth certificate is a fake and proves nothing other than his role in a claimed forgery would understand in an instant that Esquire’s ‘report’ did not convey actual facts about Plaintiffs,” the brief states.
“If that were not enough,” it continues, “the report was labeled as ‘Humor’ on a ‘Politics Blog’ described as ‘opinion,’ and included numerous other indicia of fiction.”
Warren’s piece purported to cite Farah saying he was destroying hundreds of thousands of copies of Corsi’s 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 that day posted a disclaimer, insisting it had “committed satire,” but 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.”
In a previous filing, Klayman argued Esquire’s invocation of the D.C. anti-SLAPP law is invalid, because it conflicts with federal rules of procedure and evidence.
Klayman contends, citing precedent, the case cannot be tossed out by the anti-SLAPP law, because only a jury can decide whether or not a particular article would be regarded as satire by a reasonable person.
When the lawsuit was filed, 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.”