“We’re confident that the lower-court decision will be overturned – we’re extremely pleased that the court has set a briefing schedule, and we’re off to the races,” said WND’s attorney in the case, Larry Klayman.
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.
According to the court order, issued Thursday, WND’s appeal is to be filed by Jan. 11, and the final briefs are due March 18.
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.
Klayman contends the anti-SLAPP law does not apply in federal court, citing a recent ruling in the District Court for the District of Columbia.
He suspects the case has moved relatively slowly because there are several cases pending in the D.C. circuit that are tied to the anti-SLAPP statute, including Sherrod v. Breitbart, Shirley Sherrod’s case against the late Andrew Breitbart charging defamation regarding the posting of a speech in which she said she struggled to work with a white farmer because of his race.
Klayman has argued Judge Collyer’s June 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.
As WND reported in August, Klayman filed a brief to expedite the case, arguing the delay in responding to the appeal was causing “irreparable injury” to appellants Joseph Farah, Jerome Corsi, WND and WND Books, because the “false claims” were still posted on Esquire’s website. The motion was denied.
Klayman, founder of the D.C. watchdog group Judicial Watch and his current group, Freedom Watch, told WND in a June interview that 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.”
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.
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: