By a two-to-one vote, a federal appeals court panel Tuesday denied WND’s request for a jury trial to determine whether or not an Esquire magazine article that ridiculed the Internet publisher and suppressed sales of a book should be protected by the First Amendment.
“It’s dishonest,” said WND’s attorney, Larry Klayman, of the decision. “This is an issue for the jury to decide. They took it away from the jury, and that’s inappropriate.”
Klayman argued that there is doubt as to whether or not a May 18, 2011, article on Esquire’s website by Executive Editor Mark Warren would be regarded by a reasonable person as satire, as Esquire and its publisher, Hearst, claim.
The attorney, founder of the political advocacy group Freedom Watch, said he will file a petition for rehearing the 2-1 decision by the U.S. District Court of Appeals for the District of Columbia before the full court.
Warren’s article stated falsely that 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 its CEO, Joseph Farah.
WND’s $250 million lawsuit 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 was 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.
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.
“In a defamation case, when a statement at issue could reasonably be interpreted in different ways, which the judges seemed to concede – the case must go to a jury,” he told WND in an interview Tuesday.
Klayman argued the Esquire article “rings true,” unlike the famous Jerry Falwell case against porn publisher Larry Flynt, whose magazine published a parody ad featuring a fictional interview with the Baptist preacher that was so outlandish, the average reader would recognize it wasn’t meant to be a statement of fact. The U.S. Supreme Court ruled unanimously in 1988 that the ad was protected speech under the First Amendment’s guarantee.
The majority in the Esquire ruling Tuesday concluded the article about WND’s book was protected political speech, but Klayman contends a competitor was “trying to destroy the commercial success of a book.”
That means, he argued, it was false advertising.
The majority of Judges Judith W. Rogers and Janice Rogers Brown wrote: “Because the reasonable reader could not, in context, understand Esquire’s blog post to be conveying “real news” – that is, actual facts about Farah and Corsi – the blog post was not actionable defamation.”
Senior circuit Judge Stephen F. Judge Williams decided in WND’s favor, but he did not issue a written opinion.
The majority further argued “it is the nature of satire that not everyone ‘gets it’ immediately,” citing the example of Daniel Defoe’s “The Shortest Way with the Dissenters,” an anonymous satirical pamphlet against religious persecution that initially was “welcomed by the church establishment Defoe sought to ridicule.”
Rogers and Rogers Brown contended that the article’s context, along with specific elements of substance and style, would “convince the reasonable reader that the blog post was satirical.”
But Klayman argued it’s up to a jury to decide whether or not that would be the conclusion of a “reasonable reader.”
He points to the fact that when the article was published, news organizations immediately began contacting Farah for confirmation of the Esquire story, and buyers of the book began requesting refunds.
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.”
Esquire claims in its defense that it “satirized the unwavering stance of a group at the center of the national public controversy over President Obama’s birthplace and his legitimacy as President.”
The defendants – Hearst, Esquire and Warren – call the WND lawsuit an “attempt to punish Esquire for its political speech ridiculing [WND Books, WND.com, Corsi and Farah] for their own political views.”
Klayman said the federal appeals court judges likely were influenced by the fact that the book at the center of the case was about the toxic political issue of Obama’s eligibility for office.
But Klayman pointed out the case had nothing to do with whether or not Obama is eligible, even though District Court Judge Collyer made a ruling that Obama is a “natural born citizen.”
“The case is about holding in false light a competitor,” said Klayman. “It’s not an argument about whether or not Obama is eligible for the White House.”
Klayman added that in the current political environment, suggesting in any way that Obama might not be eligible would be career suicide for a jurist.
“These judges know that if they make an unpopular decision against the establishment that they will never be able to be promoted to the Supreme Court or any other position they might get through political patronage,” he said.
Klayman said decisions like the Esquire ruling reinforce his belief that the country “is in a revolutionary state.”
“The courts do not step in to protect the little guy against the powerful establishment interests, like Esquire,” he said. “Without protection of the courts, the people are left defenseless.”
That’s why, he said, a coalition of 30 groups he has organized, called Reclaim America Now, is “waging a peaceful, nonviolent revolution.”
“The total system of government is now broken down and the courts don’t protect anyone other than the establishment,” he said. “They’ve become rubber stamps for the corrupt establishment.”