While the defendants in the Sherrod case filed a notice of appeal today from the denial of their motion there, defendants in a different federal district case today filed a motion to dismiss a lawsuit brought by Joseph Farah and others. The complaint, captioned Farah v. Esquire, was filed in federal court on June 28, 2011 and asserts claims for defamation, false light invasion of privacy, tortious interference with business relations, violations of the Lanham Act, and misappropriation invasion of privacy.
According to the complaint, the plaintiffs have “covered the controversy concerning whether or not President Obama is a natural-born American citizen eligible to be President of the United States.” The complaint alleges that, after the recent publication of a book on this topic, Esquire published an online blog post suggesting that, in light of President Obama’s release of his birth certificate, the book was being recalled and its authors would refund the purchase price. It alleges that, after publication of this article, purchasers and distributors of the book contacted the plaintiffs, and bookstores began pulling the book from their shelves.
It alleges that, when the plaintiffs complained about the article and issued a statement that they were considering legal action, Esquire responded by stating that the article was satire.
The defendants’ motion asserts that the suit must be dismissed because it fails to state a claim and under DC’s anti-SLAPP statute, because “the speech challenged in the Complaint arises from an act in furtherance of the right of advocacy on issues of public interest, and Plaintiffs cannot demonstrate that they are likely to succeed on the merits of their claims.”
In the accompanying memorandum, the defendants argue that the non-Lanham causes of action are squarely within the protection of the anti-SLAPP statute because the issue of President Obama’s eligibility for the office of president is “an issue under consideration by the judicial as well as executive branch” and thus satisfies the statute’s requirement that it involve “an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” (The defendants state, in a footnote, that federal courts in California do not apply that state’s anti-SLAPP statute (on which DC’s statute is modeled) to Lanham Act claims. Without conceding whether this would be rule in DC, it argues that the Lanham Act claims fail to state a claim, and thus fail for that reason).
In apparent recognition that Judge Leon recently denied an anti-SLAPP motion in Sherrod, and that an argument by the plaintiff there was that the anti-SLAPP statute was inapplicable in federal court, the Farah defendants next argues that the anti-SLAPP statute provides substantive rights and, as such, applies in federal court: “[t]he Act’s substantive protections supplement federal rules, rather than supplant them. Its application would serve the “twin purposes of the Erie rule” – discouragement of forum shopping and avoidance of inequitable administration of the law. It should be applied here.” (emphasis in original).
The defendants also argue that, even if the Court finds that the anti-SLAPP statute is somehow not applicable, the suit should be dismissed for failure to state a claim. It “respectfully suggests that the most prudent course is to simultaneously dismiss both pursuant to the anti-SLAPP act and for failure to state a claim.”