'Esquire lied' to defend false story that harmed WND

Esquire magazine and its publisher, Hearst, lied to federal courts in their defense of a blog post falsely reporting that WND's book on President Obama's constitutional eligibility for office was being scrapped, charges attorney Larry Klayman.

WND, represented by Klayman, is appealing a decision last June 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.

WND's $250 million defamation suit seeks damages for a May 18, 2011, report on Esquire'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 its CEO, Joseph Farah.

Support WND's "Esquire Justice Fund" to support lawsuits against Mark Warren, Esquire and for its malicious attack on Jerome Corsi's book, "Where's the Birth Certificate?"

The suit argues the article is not protected by the First Amendment because its publication caused real damage by defaming WND and suppressing book sales.

Klayman has filed a motion with the D.C. Circuit federal appeals court to throw out Esquire's pleadings and end the case in WND's favor. He notes that Esquire, in its briefs to the lower court in D.C. and now to the appeals court, claims the blog post had "tags" that would indicate to readers that its article was satirical and not a serious news story.

But Klayman contends the original article, which prompted a flood of response to WND by concerned readers and other media who took it seriously, had no such tags.

He has submitted to the court screen shots of the article taken the day it was published accompanied by an affidavit from Farah testifying there were no tags.

Since the article was published, Esquire has inserted below it a list of hyperlinked "tags," or related article categories. The list in small, faint type consists of key words and phrases, including "Where's the Birth Certificate," "Jerome Corsi," "Birthers" and "Humor."

"They lied about what was originally published," Klayman told WND. "They lied to the lower court, and now they've lied to the appellate court."

Shortly after noon on the day the article appeared, Esquire found it necessary to add a disclaimer, because so many readers apparently understood the article to be straight news:

UPDATE, 12:25 p.m., for those who didn't figure it out yet, and the many on Twitter for whom it took a while: We committed satire this morning ...

In his brief, Klayman, founder of the D.C. watchdog group Judicial Watch and his current group, Freedom Watch, says Esquire's "lie" could have decided the entire case in favor of Esquire and now has cost WND "considerable time and expense to correct the record."

Along with striking all of Esquire's pleadings, Klayman is asking the appeals court to impose sanctions and assess attorneys fees for lying. He wants "the unethical conduct" to be referred to the D.C. Bar Council, the ethics organ of the D.C. Bar, and to an internal ethics panel, the Committee on Admissions and Grievances.

"The lie should be grounds itself for them to lose the case," he told WND.

Screen shot of Esquire story taken May 18. 2011

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."

Special protection?

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."

Esquire argues "speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection."

The men's magazine publisher insists 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."