Farah v. Esquire: a Primer

I have previously blogged about the panel that will be hearing the Farah v. Esquire appeal on October 3.  Here’s a brief summary on the relevant background facts, the proceedings in the district court and the pertinent issues on appeal.

The plaintiffs/appellants are Joseph Farah, the CEO/editor of WorldNetDaily, and Jerome Corsi, a senior staff reporter.  WorldNetDaily has been at the forefront of the so-called “birther” movement, arguing that Barack Obama is not eligible to be president because he is not a natural-born citizen.

In April 2011, President Obama released his long-form Hawaiian birth certificate, which was intended to put an end to the birther issue.  However, Corsi was not convinced, maintaining that the certificate was a fraud, and instead pressed ahead with the publication of a book entitled “Where’s the Birth Certificate?  The Case That Barack Obama Is Not Eligible To Be President” on May 17, 2011.  The book was published by WorldNetDaily’s book publishing arm.

The next day (May 18, 2011), at 10:50 a.m., Esquire.com’s Politics Blog, under the tag “humor,” posted a blog post entitled “BREAKING: Jerome Corsi’s Birther Book Pulled From Shelves!”  In addition to showing the cover of Corsi’s book, the blog post said:

In a stunning development one day after the release of Where’s the Birth Certificate? The Case that Barack Obama is not Eligible to be President, by Dr. Jerome Corsi, World Net Daily Editor and Chief Executive Officer Joseph Farah has announced plans to recall and pulp the entire 200,000 first printing run of the book, as well as announcing an order to refund the purchase price to anyone who has already bought either a hard copy or electronic download of the book.

In an exclusive interview, a reflective Farah, who wrote the book’s forward and also published Corsi’s earlier best-selling work, Unfit for Command: Swift Boat Veterans Speak out Against John Kerry and Capricorn One: NASA, JFK, and the Great “Moon Landing” Cover-Up, said that after much serious reflection, he could not go forward with the project. “I believe with all my heart that Barack Obama is destroying this country, and I will continue to stand against his administration at every turn, but in light of recent events, this book has become problematic, and contains what I now believe to be factual inaccuracies,” he said this morning. “I cannot in good conscience publish it and expect anyone to believe it.”

When asked if he had any plans to publish a corrected version of the book, he said cryptically, “There is no book.” Farah declined to comment on his discussions of the matter with Corsi.

A source at WND, who requested that his name be withheld, said that Farah was “rip-shit” when, on April 27, President Obama took the extraordinary step of personally releasing his “long-form” birth certificate, thus resolving the matter of Obama’s legitimacy for “anybody with a brain.”

“He called up Corsi and really tore him a new one,” says the source. “I mean, we’ll do anything to hurt Obama, and erase his memory, but we don’t want to look like f___ing idiots, you know? Look, at the end of the day, bullshit is bullshit.”

Corsi, who graduated from Harvard and is a professional journalist, could not be reached for comment.

Approximately 90 minutes later, the original blog post was followed with an “update” that said:

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 to point out the problems with selling and marketing a book that has had its core premise and reason to exist gutted by the news cycle, several weeks in advance of publication. Are its author and publisher chastened? Well, no. They double down, and accuse the President of the United States of perpetrating a fraud on the world by having released a forged birth certificate. Not because this claim is in any way based on reality, but to hold their terribly gullible audience captive to their lies, and to sell books. This is despicable, and deserves only ridicule. That’s why we committed satire in the matter of the Corsi book. Hell, even the president has a sense of humor about it all. Some more serious reporting from us on this whole “birther” phenomenon here, here, and here.

When the blog post’s author (Mark Warren) was then contacted by another publication, he expressed no regrets about the post, calling Corsi an “execrable piece of shit.”  When that same publication contacted Farah, he stated that, while he assumed the blog post was “a very poorly executed parody,” he was considering “legal options” against Esquire.

And so it was that, one month later, Farah and Corsi held a press conference to announce that they were suing Esquire and Warren 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, after the blog post, consumers began requesting refunds and bookstores began pulling the book from their shelves, or not offering it for sale.

The defendants moved to dismiss the Complaint under both the DC anti-SLAPP act and Rule 12(b)(6).  You can read more about the various arguments herehere and here.

On June 4, 2012, the federal district court granted the defendants’ motion under both the anti-SLAPP statute and Rule 12(b)(6).  After holding that the anti-SLAPP act applies in federal court, it held that the blog post was protected satire on an issue of public concern, thus dooming the defamation claim.  It held that the same defense applied to the remaining common law claims, which all stemmed from the allegedly defamatory blog post.  Finally, it held that the Lanham Act claim failed because that statute applies only to commercial speech, and the blog post was not commercial speech.  (You can read more about the district court’s decision here).

After the filing of briefs at the DC Circuit (Farah’s opening brief here; Esquire’s opposition brief here; Farah’s reply brief here), these are the anti-SLAPP issues that are teed up for the DC Circuit:

Initially, does the DC anti-SLAPP statute apply to cases in federal court?  Judge Wilkins held, in 3M v. Boulter, that the statute conflicted with the Federal Rules of Civil Procedure and thus could not be applied in federal court.  Since then, three other DC federal court judges (including Judge Collyer in Farah) have held that the statute applies in federal court.  In Sherrod, the DC Circuit held that the anti-SLAPP motion was not timely made, and thus did not decide whether the statute applies in federal court.  Farah thus presents an opportunity for the DC Circuit to resolve the disagreement in the district court (although, as I have noted previously, because the district court’s ruling in Farah was under both the anti-SLAPP statute and Rule 12(b)(6), the DC Circuit could affirm under Rule 12(b)(6), and thus avoid deciding the Erie issue).

If the DC Circuit holds that the statute applies in federal court, it will then have to decide the scope of the “commercial” exemption.  Under the statute, “[t]he term ‘issue of public interest’ shall not be construed to include private interests, such as statements directed primarily toward protecting the speaker’s commercial interests rather than toward commenting on or sharing information about a matter of public significance.”  The appellants argue that the blog post was within this exception; the district court agreed with the defendants that it was not applicable, concluding that it was “satirical comment on an issue of public concern.”

Finally, if the DC Circuit holds that the anti-SLAPP statute applies in federal court, because this will be the first appellate review of a successful anti-SLAPP motion, it will provide the DC Circuit with an opportunity to articulate the appropriate standard of review in such circumstances.  In its brief, Esquire argues that the standard is de novo, citing California law.  Indeed, most courts have applied a de novo standard of review to anti-SLAPP decisions.  See, e.g., Albanese v. Menounos, 160 Cal. Rptr. 546, 549 (Cal. Ct. App. 2013) (“In an appeal from an order granting or denying a motion to strike under section 425.16, the standard of review is de novo”); Nader v. Maine Democratic Party, 66 A.3d 571, 575 (Me. 2013) (“the standard of review is more accurately characterized as de novo. At the first step of the anti-SLAPP analysis, the issue is whether the claims are based on the moving party’s exercise of its right to petition, as defined by the anti-SLAPP statute.  This is a question of statutory interpretation and thus requires de novo review. At the second step of the anti-SLAPP analysis, the court must determine whether the non-moving party has met a burden of production by way of its pleadings and affidavits.  De novo review is appropriate here, as well. When a court reviews pleadings and affidavits, rather than live testimony, no deference is required and de novo review is appropriate. This conclusion is consistent with the de novo standard of review we apply in the summary judgment context, where we similarly review whether a court has erred in concluding that a party has met a burden of production by examining paper-based submissions”); Rehak Creative Services, Inc. v. Witt, 404 S.W.3d 716 (Tex. Ct. App. 2013) (applying a de novo standard of review).

Leslie Machado

About: Leslie Machado

Mr. Machado counsels and advises a diverse range of clients on various areas of law. He is also an experienced litigator, having tried cases to verdict in state and federal courts. View all posts by Leslie Machado
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