Joseph Farah (et al.) sued Esquire Magazine over a spoof article Esquire published online that Farah claims destroyed the salability of the book, Where’s the Birth Certificate? by Jerome Corsi. Farah lost when his case was dismissed under the DC Anti-SLAPP law (and for other reasons). You can read about the case from my various articles on it.
The real issue in the appeal was not whether Esquire Magazine defamed Farah, but whether the case should have been dismissed rather than tried. Plaintiffs have decided to try again, requesting that the case be heard by the full circuit court, en banc.
A hearing of a case by the full circuit is discretionary (requiring a majority of the judges not recused in favor), not a right, and in the District of Columbia, certain principles apply. Hoping for a better result is not grounds for a hearing by the full circuit. Here are the sorts of things the DC Circuit considers en banc:
- resolving an apparent conflict in the prior decisions of panels of the court;
- rejecting a prior statement of law which, although arguably dictum, warrants express rejection to avoid future confusion;
- overruling an old or obsolete decision which, although still technically valid as precedent, has plainly been rendered obsolete by subsequent legislation or other developments; and
- overruling a more recent precedent which, due to an intervening Supreme Court decision, or the combined weight of authority from other circuits, a panel is convinced is clearly an incorrect statement of current law.
Klayman’s argument is that this case is of “exceptional importance” dealing as it does with limits on the protection of satirical speech. He does not make any argument that existing precedent is insufficient, conflicting or outdated. Klayman’s essential argument is that the decision was wrong for various reasons, already rejected by the Circuit Court panel who denied his appeal.
I won’t get into the Lanham Act angle—interested readers can read the briefs. What I do want to mention is that part of an Anti-SLAPP dismissal involves an assessment of the likelihood that a plaintiff could prevail at trial, and I certainly consider it doubtful that Farah and Corsi could show that they were actually damaged by the Esquire article (beyond its satirical purpose that they be laughed at). Klayman argues that the Esquire article is libel per se (and damages need not be proven) because it accuses Farah and Corsi of a crime, citing Raboya v. Shrybman & Associates1; however, Klayman never explains exactly what the crime is when someone writes a book with “factual inaccuracies” (the actual words that Esquire satirically puts into Farah’s mouth). If “commercially defrauding the American Public” means putting “factual inaccuracies” in a book, then this is a crime that Farah and Corsi are arguably guilty of many times, along with a host of other authors.
From my layman’s viewpoint, the issues are clear cut and the DC Circuit will not endorse a hearing en banc. Sometimes there is a published written order with explanation when petitions for hearing en banc are decided.
1This is a curious case to cite in that the defendant successfully had the libel per se count dismissed. The Court took a strict view of what constituted a crime. If anything, this decision seems to hurt Klayman’s case.
KKKlayman takes time off from running the Shadow Gubbamint to make a new filing in the Esquire case? Please say it’s so!
http://ia601802.us.archive.org/14/items/gov.uscourts.cadc.12-7055/gov.uscourts.cadc.12-7055.01207558040.0.pdf
Money quotes:
… and that’s just from the first 3 pages. Insists on a jury trial. Again bemoans identification of Corsi as “execrable POS”. Call the Waaaa!mbulance. And, of course, the punltimate misinterpretation of reality:
That is one POW!erful blog post! Yep, No problem whatsoever marketing that book until that nasty little blog post came along. LOL!
Ironic that parties vehemently opposed to abortion are so good at creating them.
Klaymans’ stupidity is so blindingly intense, that Indiana Jones could use it to melt Nazis!
But there was no dissenter, even though Klayman says there was.
The decision itself says “Opinion for the Court by Circuit Judge Rogers” and “Circuit Judge Brown concurring in the judgment.” That’s it; there’s no mention of a dissent. So what this means is that Judge Rogers and Judge Williams agreed on everything as described in the decision, and Judge Brown agreed about the result, but not about the court’s reasoning.
WND, naturally, got this wrong when they reported on the decision. Reuters, on the other hand, got it right: http://blogs.reuters.com/alison-frankel/2013/11/26/d-c-circuit-knows-satire-when-it-sees-it-tosses-birther-case-vs-esquire/
So the decision wasn’t 2-1, it was 2-1-0. And that ‘0’ was the number of judges who agreed with Klayman. Thus, it might be interesting to see how Esquire’s counsel, and the court itself, respond to Klayman misrepresenting the court’s own decision.
I would have to agree with Klayman that a jury should decide. Any reasonable jury would agree that is was NOT satire and that this was intentnial willful act to harm WND. The courts reasoning just doesn’t make much sense and it struggles with reasoning on why it is satire by writing many many pages or paragraphs trying its damnest to justify it’s decision. Remember that this blog post was made AFTER Obama released his long-form birth certificate.
Given that title of Corsi’s book is “Where’s The Birth Certificate”, it is inherent and reasonable to conclude that the act of Obama releasing his birth certificate would compel the author of such a book to retract its publication.
Wait. Wasn’t Corsi all over “free speech” not that long ago during the Duck Dynasty controversy? http://www.teaparty.org/corsi-time-duck-dynasty-barack-obama-white-house-32330/
A perfect illustration of the meaning of “reasonable” in birtherworld.
Thank you! I hate publishing mistakes like this. I have updated the article, and the prior one where the error also appears:
http://www.obamaconspiracy.org/2013/11/farah-v-esquire-appeal-unsuccessful/
Juries decide questions of fact. judges decide questions of law. This case was dismissed as a matter of law.
But not in Birtherstan, Doc. There juries of birthers get to decide everything…..the law and facts be damned.
Well, so long as those juries remember to decide ‘correctly’. 😉
Wow, simply …. wow.Continuing on in his unrivaled capacity as this sector’s Zen Angst Master of Poe … our friend, dear john. The point of the satire (of course it was after the release, thus the satire!) continues to elude him …. or does it? 😀
Birthers are always correct. Just ask one.
That’s the point of Esquire’s satire. No reasonable person would have marketed a book whose premise had been thoroughly, undoubtedly, and very publicly smashed to bits just a few weeks earlier. Any reasonable person would have withdrawn the book from the market, but birthers are not reasonable. It is one of their defining characteristics. Anyone who knows anything about birthers knows very well that they never admit they were wrong just because it has been conclusively shown beyond a reasonable doubt that they are wrong. Hence the joke.
Never let pesky things like facts, get in the way of being right! 😉
This is an open and shut case. Esquire is guilty of slander and libel. The title of Corsi’s book “Where’s the Birth Certificate” proves beyond all reasonable doubt that it was libel and not satire. The Title along with Obama’s actions (The release of his long-form birth certificate) would lead any reasonable reader, birther or not to believe Equire’s story as true at face value.
Putting is another way:
Suppose an author were to write a book titled “Elvis is Alive” to be released at some future date. The book would allege that Elvis is still alive and living. Then a few days before the book is to be released, the government releases irrefutable evidence that Elvis is dead. (Autopsy and death report and allow public viewing of Elvis’s body) Suddenly, a media outlet reports that the author has pulled the book “Elvis is Alive” from publication. (Later to admit that story was only satire) Would such a story be slander and libel? Absolutely! Any reasonable reader could conclude that by the government’s actions of verifying Elvis’s death, the book would become moot and thus any story that “Elvis is Alive” has been pulled from publication would be true.
In the case of Corsi’s book “Where The Birth Certificate” this is exactly what happen. Thus the title of Corsi’s book along with Obama’s actions of releasing the birth certificate proves beyond a reasonable doubt that any story reporting a pull from publication would NOT be satire but slander and libel.
I don’t think that slander and libel mean what you think they do.
I don’t think “open and shut case” means what you think it does.
Open and shut in that the case will be dismissed. Slander is spoken libel is written. Esquire is guilty of neither.
That case is a classic case of Klayman saying the sky is blue but court is saying the sky is black when in fact the sky is blue and the courts figures if it just filibusters (writes paragragh after paragraph of legal junk) that the sky will become black like the court says it is.
Explain to us, please, what you think slander and libel are.
And I’m pretty damn sure “reasonable” doesn’t mean what you think it does.
Yes, John, you “would HAVE to agree with Klayman that a jury should decide.” because common sense and facts never enter into your decision-making.
Haha John defending Klayman – delicious.
And so, so unsurprising.
Klayman’s whine that the case is of “exceptional importance”, boils down to he’s Larry Klayman and he is “special”, and the rules don’t apply to him. That’s what the “exceptional importance” is.
He obviously didn’t show in the first attempt that the satirical article wasn’t satire, and/or that it caused him any measurable damage, and I would suspect that someone actually reading the thing and commenting on it would have done far more damage to his and his work of fiction’s reputation.
My sense is that Klayman and Corsi are all for free speech as long as it isn’t about them. Funny that.
It is obvious that John doesn’t have clue one about what slander or libel are, the difference between them, or the threshold for proving them, but as he has never let facts, and/or reality get in his way before why should anyone be surprised. Agreed, that he is defending Klayman is just priceless, and so John.
Way to go John, nice to see you haven’t lost your tetched, and still incoherent as ever, keep up the good work, the world can always use a little more unintended humor, and you’re the gift that just keeps on giving.
I don’t know why but Klayman’s appeal reminds me of Plan 9, except it’s not from outer space, or perhaps it is, I don’t know anymore.
I think that a good way to describe the difference here is that a court case on whether Jerome Corsi is an “extricable piece of shit” would go to a Jury, whereas a slander trial would not.
I would sit every day for that trial…
I’m pretty sure that the list of things that don’t mean what John thinks they mean is endless…
Child molestors, bigots, holocaust deniers, convicted felons and geocentrist loons. These are the people John chooses to associate himself with.
WND has this article today:
Researchers hunt Internet remnants from time travelers
Can’t we sue them for something?
Okay, now I’m sure “blue” and “black” don’t mean what John thinks they do.
—-
You mean all that legal junk upholding the First Amendment right to political free speech and freedom of the press?
John is a shill for the CCCP or possibly one of their own writing about what he’s told to by Field Mouse Zullo. John, Zullo, Arpaio, Klayman, Gallups, Falcon, and the rest of this amusing group of the blind leading the blind. This will not end until at least the results of the 2014 elections are announced. My opinion? This is all politically motivated.
I for one will always defend Esquire‘s right to refer to Corsi as an “execrable PoS”; yea, even to refer to the Corsican Ape as an “inexecrable PoS” (ouchie!), and throw Farah in to boot.
ROTFL, the court makes a clear ruling and John considers it ‘filibuster’ or ‘legal junk’. Fascinating ignorance
Does this mean he can be asked to demonstrate in court that he is not “execrable?”
If this was an open and shut case in the way you describe it would not have been dismissed by the trial court and then dismissed again by the appellate court. You are living in a dream world, john
One of my favorite lines from Klayman’s petition for rehearing, asking the court to interpret Farah’s own admission (that the Esquire blog post was reasonably viewed as a parody) to mean the exact opposite of what Farah said:
“Mr. Farah told the Daily Caller, sarcastically to show his incredulousness, that it was; “assume[d] it [was] a very poorly executed parody,” meaning it was not parody at all!”
Maybe John can explain this. When Farah says the sky is blue, he’s sarcastically meaning the sky is black?
I probably am. The federal court will never allow the issue of Obama’s eligibility to gain traction in the public eye even if it is a suit over a book. In fact, the courts must keep the issue buried and remain a fringe issue to prevent chaos. For if traction about Obama’s ineligibility began to take public interest, the government would be plunged into chaos – the Military would stop functioning, all laws and policies would declared void and voidable and all social and economic changes would collapse. That’s why Congress refuses to take up the issue.
The quote about the poorly executed parody is good. I also like that Klayman refers to calling Jerome Corsi “an execrable piece of shit” as a “misleading” statement, as if it might lead people to actually believe that Jerome Corsi is literally fecal matter.
And, capping my lifetime vocabulary achievements:
John, what a puerile argument!
Putting it another way, you demonstrate yet again that you never allow your ignorance about a subject to get in the way of giving a ridiculous opinion.
There is a difference between slander and libel. Look them up and educate yourself.
Even if the Esquire article were not deemed to be parody, Corsi and Farah are public figures. Pursuant to New York Times Co. v. Sullivan, Corsi and Farah would have to prove that that Esquire published the article with actual malice in mind. Mocking someone does not rise to “actual malice.”
John probably believes that you are giving him a compliment!
I remain unconvinced that John is not a poorly executed parody. Or perhaps an overly well-executed parody. I’m not sure I’d know the difference.
“The federal court will never allow the issue of Obama’s eligibility to gain traction in the public eye even if it is a suit over a book.”
Birthers have HAD their “day in court.” In fact, they have had TWO HUNDRED opportunities to appear in front of US Courts. In all these cases they have achieved nothing more than wasting other people’s tax money and court time.
As one thoughtful reviewer on Amazon wrote Corsi could have renamed his book to “No, Not That Birth Certificate.”
Actually, Corsi could have simply re-positioned it as layman’s guide to idiotic birther logic and cashed in on the big “Obot” money.
Your post pushed exactly the right button! I have cracked it!
John is, in reality, Steven Seagal!
Yes that’s right folks… Seagal :: Seagull: as in “Johnathon Living Seagull”.
Coincidence?
I think not.
Lack of standing does that to you… Somehow people fail to understand why the Courts have been rejecting over 200 foolish challenges.
Poor John cannot accept the facts though…
So…he spends his time squinting a lot and doing fat guy karate?
John wrote : “The federal court will never allow the issue of Obama’s eligibility to gain traction in the public eye even if it is a suit over a book.”
No, John, actually, the federal court will never allow a non-issue like the ludicrous challenges to Obama’s eligibility to deceptively gain traction in the public eye by Birthers procedurally hijacking the legitimacy of a courtroom setting, especially if such challenges are simply gratuitously and irrelevantly referred to by a political gadfly making preposterous arguments in a spurious lawsuit arising from an obviously satirical essay lampooning the sale of a silly book.
John also wrote : “ In fact, the courts must keep the issue buried and (have it) remain a fringe issue to prevent chaos.”
Wrong again, John! Birthers, not content to only falsely question Obama’s eligibility, manufacture an imaginary nightmarish legal consequence they say would attach to such ineligibility, presumably just in case the President’s usurper-black skin doesn’t, by itself, morally outrage their audience enough. In fact, the courts have continuously, patiently let the Birther editions of the “eligibility issue” expose itself as illegitimately conceived, so that in openly failing in over two hundred direct and indirect legal challenges based on both procedure and merit, it will appropriately remain a fringe issue, and prevent the chaos that would ensue if such frivolous cases were allowed to prevail based solely on the basis of conclusory allegations and politically partisan inventions of Law.
John also deluded : “ For if traction about Obama’s ineligibility began to take public interest, the government would be plunged into chaos – the Military would stop functioning, all laws and policies would declared void and voidable and all social and economic changes would collapse. That’s why Congress refuses to take up the issue.”
Wrong yet again, John! Traction resulting from such partisan false charges seldom creates public interest beyond the kind of appalled fascination with which most sane observers view the bizarre, anarchistic and contra-Constitutional theories of Birthers like your lunatic self. So your antics serve a higher purpose than your low-life protestations intend; our government demonstrates it is protecting free speech and allowing the opportunity to SEEK redress of grievances, for all of us by patiently letting you malcontents publicly waste more than your share of access to the judiciary with transparently frivolous lawsuits, so that the public will see what anarchistic idiots you are, ignore your eccentric complaints and appreciate even more the reasonable and Constitutionally conducted legitimacy of our government, while the Military continues to function, all laws and policies continue in effect, and all social and economic changes continue, as they have since Obama was elected in spite of Birthers’ non-stop accusations. That’s why Congress refuses to waste any time with such a non-issue, and that’s why it has never gained traction with the sane public.
The Esquire lawsuit has nothing to do with Obama’s eligibility. It’s just an amusing sideshow.
The sticky wicket which you birthers have not yet come to grips with is that even if you could prove that Obama’s birth certificate is a forgery, it would not disqualify him. You would still have to prove that he was born outside the United States, and you’re no closer to doing that than you were in 2008. Even if your pal Zullo got his Congressional investigation, where would they look for Obama’s “real” birth certificate? It’s a big world out there.
Oh boy, what would you / we do without john ……
What was that old song about the ram butting the dam? “High Hopes” or something similar? John has been totally hypnotized by the song. Open and shut case.
“High Hopes” ♫ Frank Sinatra
First, the military would not stop functioning. That’s the good thing about it, otherwise the CiC would be a single point of failure in an otherwise perfect system.
(Just imagine for a moment GWB had, after being elected, converted to Satanism and declared his allegiance lies with North Korea. Does that mean the military would just have stopped defending the US from foreign aggression? Come again?)
As for laws and policies, that’s what the de facto officer doctrine is for. (I wonder why birthers who claim Chester Arthur was an “ineligible usurper” never bothered to check which laws and acts would then be void. It might be a lot. But it also confirms it was always only about the black guy.)
When reading john, Frasier’s line from CHEERS about what color the sky is on your planet comes to mind…
That was JFK’s campaign song in 1960, FYI>
Of course you do, John.