Public hearing in WND's case against Esquire

A public hearing to hear oral arguments in WND's $250 million defamation suit against Esquire magazine and its publisher, Hearst, is scheduled for Thursday morning in federal court in Washington, D.C.

Members of the public are welcome to attend the hearing at the U.S. District Court of Appeals for the District of Columbia, located at 333 Constitution Ave., N.W., in Washington, D.C.

The hearing will begin at 9:30 a.m. in the appellate courtroom before circuit Judges Judith W. Rogers and Janice Rogers Brown, and senior circuit Stephen F. Judge Williams, according to the court order.

WND 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.

Attorney Larry 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.

"I urge all of our supporters to come to the court room to politely watch and show the judges how important this case is -- not just to WND and Jerome Corsi, but to the country," said Klayman.

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

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 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.

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."

Humor?

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."