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 He does not make any argument that existing precedent is insufficient, conflicting or outdated.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.