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Klayman to take another run at Esquire appeal

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:

  1. resolving an apparent conflict  in the prior decisions of panels of the court;
  2. rejecting a prior statement of law which, although arguably dictum, warrants express rejection to avoid future confusion;
  3. 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
  4. 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 He does not make any argument that existing precedent is insufficient, conflicting or outdated.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.

The word "Doomed " in dripping font


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.

Farah v. Esquire appeal unsuccessful

The Esquire article certainly didn’t fool me, any more than Klayman’s legal briefs fooled the judge.

— Dr. Conspiracy
— Comment at WorldNetDaily

imageIn a satirical article, Esquire Magazine made a birther joke, that since Obama released his birth certificate, Jerome Corsi’s ill-titled book Where’s the Birth Certificate were being recalled. Joseph Farah, perhaps seeing a publicity opportunity sued. He lost under a statute designed to prevent meritless lawsuits from chilling public comment, the court ruling that Farah had no reasonable chance of convincing a jury. Farah’s attorney was the well-known litigator, Larry Klayman.

Farah appealed the decision, and lost. WorldNetDaily announced the loss in an article a few minutes ago.

“It’s dishonest,” said WND’s attorney, Larry Klayman, of the decision. “This is an issue for the jury to decide. They took it away from the jury, and that’s inappropriate.”

Klayman blames the loss on the political ambitions of the judges who ruled against him.

“These judges know that if they make an unpopular decision against the establishment that they will never be able to be promoted to the Supreme Court or any other position they might get through political patronage,” he said.

Well, the purpose of the DC anti-SLAPP (strategic lawsuit against public participation)  statute is to prevent the threat of litigation and its associated costs from chilling public participation. Klayman was unable to show the suit could win.

Is this one destined for the Supreme Court? Do pigs wish they could fly?

Update: This article previously stated, erroneously, and it was reported elsewhere, that there was a 2-1 spit decision by the court. This is not correct. All three judges agreed on the decision, but only two concurred on the opinion.

Related articles:

Media coverage:

  • Courthouse News Service – Warren’s reference to Corsi as an “execrable piece of shit,” is clearly his personal opinion as it “does not appear to convey any factual assertion, but is rather ‘the sort of loose, figurative or hyperbolic language which would negate the impression’ that a factual statement was being made,” Brown wrote (emphasis in original).

Hearing in birther spoof lawsuit appeal

The US Circuit Court in DC has posted the audio (embedded below) from the recent hearing in the Farah v. Esquire Magazine lawsuit brought by Joseph Farah against Esquire Magazine over a spoof article they published saying the Jerome Corsi’s book Where’s the Birth Certificate? was being recalled.

Good spoofs keep the reader believing their unlikely premise as they stray into gradually wilder and wilder implausibility. This was the case in the Esquire story, and I suppose that someone who quit reading the story after the first 20 words might have believed it.

In oral arguments, Farah’s attorney Larry Klayman, argues that 25% of Americans have doubts about Obama’s eligibility. I don’t think the appellate judges will have any doubts about this case.

Read article at ConWebWatch.

Farah slapped down

Can you believe that there are people in the world who would file a meritless lawsuit out of pure spite? It’s true! Joseph Farah sued Esquire Magazine for libel over a satirical1 article that made fun of Jerome Corsi’s book, Where’s the Birth Certificate? after it’s title became silly following a preemptive release of Barack Obama’s long-form birth certificate by the White House. You can read my coverage of the $250 Million lawsuit by Farah in these articles:

As I suggested, Esquire Magazine could try a new District of Columbia law designed to prevent people from being victimized by public figures who file lawsuits that can generate large legal fees and drag on for years.

A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.

Wikipedia

I told you so!

Esquire Magazine filed such a defense under the DC anti-SLAPP statute and won in a decision yesterday by DC District Judge Rosemary M. Collyer. There was never a doubt in my mind that the suit deserved to be SLAPPed down, but there was some question as to whether the statute could be used in DC District Court (a federal court hearing a case in diversity). There always remains the possibility that an appeals court will overturn the decision over this question, but that doesn’t change the fact that the Judge decided that Farah can’t make his case, and will inevitably lose. One major flaw in the Farah case is that Farah himself called the article satire, before he called it not satire. Oops!

In a SLAPP case, the plaintiff’s have to make a reasonable showing that they have a chance to win at trial before the more expensive process of discovery begins. If the lawsuit is found to be a SLAPP the plaintiff has to pay the defendant’s legal fees.

Judge Collyer was clearly not the elusive birther-friendly judge that they needed. She begin the recitation of the facts in the case by saying:

President Obama was born August 4, 1961, in Honolulu Hawaii.

Ouch!

The Judge also made one other comment that I take to heart:

Those who speak with loud voices cannot be surprised if they become part of the story.

Farah’s attorney, Larry Klayman responded:

The court’s decision is significantly flawed and intellectually dishonest.

and

The decision was so poorly reasoned it rises to a level of negligence, if not a desire to dump the case because it is not palatable to the Washington establishment.

“Piffle,” as my Mom used to say. Klayman says they will appeal. I’m happy as a clam.

Here’s the Judge’s opinion:

FARAH, et al. v ESQUIRE – Memorandum Opinion Dismissing Case


1The Supreme Court in Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569, 581 n.15 (1994) defined “satire” as:

a work ‘In which prevalent follies and vices are assailed with ridicule,” or are “attacked through irony, derision or wit.”

“Update” on Farah v. Esquire Magazine

It’s not much of an update. I checked around yesterday to see if anything had happened in the defamation lawsuit filed by Joseph Farah of WorldNetDaily against Esquire magazine, who had published a spoof article saying that Jerome Corsi’s book, Where’s the Birth Certificate?, was being recalled and pulped.

I speculated whether the District of Columbia’s anti-SLAPP legislation would apply in this suit in my article “The Empire SLAPPs Back.” WorldNetDaily reports that a decision in the DC District Court case of 3M Company v. Boulter concluded that the DC Anti-SLAPP Act of 2010 does not apply in federal cases. WND wrote (clarification added):

A federal court’s recent ruling that the District of Columbia’s anti-defamation statute does not apply in federal cases [sitting in diversity] could help move forward a federal lawsuit brought by WND against Esquire magazine….

Oh by the way, Farah’s lawyer is none other than Larry Klayman.

Update:

Klayman sent the DC Circuit Court notice of the 3M case on February 20. This is what he said:

This is to advise this Court that on February 2, 2012, this Court ruled in 3M Corporation v. Boulter, No. 11-cv-1527 (RLW) (D.D.C.) (Exhibit 1) that the D.C. Anti-SLAPP Act does not apply in this Court, and, as a result, denying the Special Motion to Dismiss under the Anti-SLAPP Act filed by the defendants in that case. It is now the law of this Court that the Anti-SLAPP Act is not applicable. Thus, the Court should respectfully summarily deny Defendant’s special motion to dismiss, which was filed on August 26, 2011, so that discovery may proceed.

Hearst Publishing on February 24 sent the court its own supplemental authority memorandum and commented:

This [Plaintiff’s] conclusion [that SLAPP is inapplicable] is deeply flawed for several reasons, not least that Judge Leon’s opinion [in DC] (and three federal circuits) reached precisely the opposite conclusion.

Judge Leon in Sherrod v. Breitbart had ruled that the DC Anti-SLAPP act was substantive which would lead to the conclusion that the Erie doctrine applies and therefore Anti-SLAPP motions are allowed even though Judge Leon didn’t allow SLAPP in Sherrod for other reasons.

On April 16, plaintiffs moved to have the order staying discovery vacated (removed).

The Empire SLAPPS Back

“Empire” in this case refers to the Hearst publishing empire and SLAPP refers to a “Strategic Lawsuit against public participation” defense. Hearst’s publication Esquire Magazine lampooned Joseph Farah, saying that the book published by WorldNetDaily, Where’s the Birth Certificate? by Jerome Corsi was being recalled from bookstore shelves. Farah sued for libel.

I speculated last June that Esquire Magazine might use the District of Columbia’s anti-SLAPP statute to derail Farah’s lawsuit, and so it has come to pass. The special motion in an anti-SLAPP defense requires that the plaintiff demonstrate that they can likely prove their case, and do so before any pre-trial discovery and depositions takes place.

JOESPH FARAH, et al. v ESQUIRE MAGAZINE, INC., et al. – 66411988 Motion to Dismiss