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Oral arguments in $250M defamation case
WND vs. Esquire goes to second-highest court in the land
WND
Garth Kant
10/3/2013
Excerpt:
Federal Judge Stephen F. Williams asked the attorney for Esquire magazine what in the First Amendment permitted his client to accuse someone of making money off of gullible readers?
That question suggested the crux of the matter in the lawsuit brought by WND against Esquire: If a political attack is called satire, is any message permissible, even if it cause damages?
The United States Court of Appeals for the District of Columbia Circuit heard oral arguments Thursday in Joseph Farah v. Esquire Magazine. Farah is the founder and CEO of WND.com.
WND filed a $250 million defamation suit against Esquire magazine and its publisher, Hearst, because of a May 18, 2011, report on the magazine’s website by Executive Editor Mark Warren that falsely claimed the WND Books exposé “Where’s the Birth Certificate? The Case That Barack Obama Is Not Eligible To Be President” by Jerome Corsi had been recalled and repudiated by publisher WND Books and by Farah.
Esquire argued the article was satire and is entitled to First Amendment protection. The WND suit, however, contends the article is not protected by the First Amendment, because its publication caused real damage by defaming WND and suppressing book sales. Many potential book buyers and media members clearly believed the article was a news story reporting the demise of the book, not a work of satire.
WND is appealing a decision in June 2012 by Judge Rosemary Collyer of the U.S. District Court in D.C. to grant Esquire’s motion to dismiss the case based on D.C.’s anti-SLAPP law, which protects media and public figures from frivolous lawsuits regarding their First Amendment rights.
After Judge Williams asked Esquire’s attorney what in the First Amendment allowed Esquire to accuse WND of making money off gullible readers, defense attorney Jonathan R. Donnellan called the article in question “classic satire” and deserving of special protections.
Furthermore, Donnellan claimed satire is “designed to fool readers.” But then, he made just the opposite argument, insisting “reasonable readers” should have been able to tell it was satire.
That remark prompted Judge Janice Rogers Brown to note that Farah had said he received calls from the top editors of major media companies from all over the country, asking if the story was true.
She asked Donnellan if he would consider those top media professionals to be “reasonable readers?”
He replied there were “clues” embedded in the text indicating it was satire, and therefore reasonable readers should know.
But Farah’s attorney, Larry Klayman, told the three-judge panel the article was originally published as “breaking news,” complete with a siren and with no indication it was satire.
Klayman pointed out that Esquire was compelled to publish a disclaimer 90 minutes after the article appeared, and the first words were, “For those of you who didn’t figure it out.”
Klayman asserted that was an obvious admission by Esquire that its readers were mistaking the article for real news.
Judge Williams observed many readers don’t recognize satire and asked Klayman if the instance was similar to the Larry Flynt case in which the late publisher of Hustler was sued by the late Jerry Falwell after the magazine published derogatory satire about him. The Supreme Court voted unanimously in favor of Flynt, ruling that reasonable people would have recognized the outrageous claims as parody.
Klayman replied that the Esquire case was not like the Flynt case because it was not obvious the Esquire article was satire, and that is why the magazine felt compelled to publish a disclaimer just 90 minutes later.
The former Reagan Justice Department prosecutor added that the article was clearly done to harm WND, which consequently suffered damage to its reputation and a great loss of money.
Furthermore, Klayman contended, Esquire had committed libel by accusing WND of fraud, and the magazine had promoted something it knew not to be true.
He said Esquire had a motive to harm WND’s sales because it is a commercial competitor and its disclaimer had a segment that essentially said “don’t read them, read us” on the issue of President Obama’s place of birth.
Judge Judith W. Rogers asked Klayman if WND had challenged the document purported to be Obama’s birth certificate as forged?
Klayman replied that the issue was not relevant to the trial.
He told WND the bottom line is it is not about the issue of President Obama’s birth place or his birth certificate, it is about the marketability of a book destroyed by a competitor, for whatever reason.
View the complete article at:
http://www.wnd.com/2013/10/oral-argu...famation-case/
WND vs. Esquire goes to second-highest court in the land
WND
Garth Kant
10/3/2013
Excerpt:
Federal Judge Stephen F. Williams asked the attorney for Esquire magazine what in the First Amendment permitted his client to accuse someone of making money off of gullible readers?
That question suggested the crux of the matter in the lawsuit brought by WND against Esquire: If a political attack is called satire, is any message permissible, even if it cause damages?
The United States Court of Appeals for the District of Columbia Circuit heard oral arguments Thursday in Joseph Farah v. Esquire Magazine. Farah is the founder and CEO of WND.com.
WND filed a $250 million defamation suit against Esquire magazine and its publisher, Hearst, because of a May 18, 2011, report on the magazine’s website by Executive Editor Mark Warren that falsely claimed the WND Books exposé “Where’s the Birth Certificate? The Case That Barack Obama Is Not Eligible To Be President” by Jerome Corsi had been recalled and repudiated by publisher WND Books and by Farah.
Esquire argued the article was satire and is entitled to First Amendment protection. The WND suit, however, contends the article is not protected by the First Amendment, because its publication caused real damage by defaming WND and suppressing book sales. Many potential book buyers and media members clearly believed the article was a news story reporting the demise of the book, not a work of satire.
WND is appealing a decision in June 2012 by Judge Rosemary Collyer of the U.S. District Court in D.C. to grant Esquire’s motion to dismiss the case based on D.C.’s anti-SLAPP law, which protects media and public figures from frivolous lawsuits regarding their First Amendment rights.
After Judge Williams asked Esquire’s attorney what in the First Amendment allowed Esquire to accuse WND of making money off gullible readers, defense attorney Jonathan R. Donnellan called the article in question “classic satire” and deserving of special protections.
Furthermore, Donnellan claimed satire is “designed to fool readers.” But then, he made just the opposite argument, insisting “reasonable readers” should have been able to tell it was satire.
That remark prompted Judge Janice Rogers Brown to note that Farah had said he received calls from the top editors of major media companies from all over the country, asking if the story was true.
She asked Donnellan if he would consider those top media professionals to be “reasonable readers?”
He replied there were “clues” embedded in the text indicating it was satire, and therefore reasonable readers should know.
But Farah’s attorney, Larry Klayman, told the three-judge panel the article was originally published as “breaking news,” complete with a siren and with no indication it was satire.
Klayman pointed out that Esquire was compelled to publish a disclaimer 90 minutes after the article appeared, and the first words were, “For those of you who didn’t figure it out.”
Klayman asserted that was an obvious admission by Esquire that its readers were mistaking the article for real news.
Judge Williams observed many readers don’t recognize satire and asked Klayman if the instance was similar to the Larry Flynt case in which the late publisher of Hustler was sued by the late Jerry Falwell after the magazine published derogatory satire about him. The Supreme Court voted unanimously in favor of Flynt, ruling that reasonable people would have recognized the outrageous claims as parody.
Klayman replied that the Esquire case was not like the Flynt case because it was not obvious the Esquire article was satire, and that is why the magazine felt compelled to publish a disclaimer just 90 minutes later.
The former Reagan Justice Department prosecutor added that the article was clearly done to harm WND, which consequently suffered damage to its reputation and a great loss of money.
Furthermore, Klayman contended, Esquire had committed libel by accusing WND of fraud, and the magazine had promoted something it knew not to be true.
He said Esquire had a motive to harm WND’s sales because it is a commercial competitor and its disclaimer had a segment that essentially said “don’t read them, read us” on the issue of President Obama’s place of birth.
Judge Judith W. Rogers asked Klayman if WND had challenged the document purported to be Obama’s birth certificate as forged?
Klayman replied that the issue was not relevant to the trial.
He told WND the bottom line is it is not about the issue of President Obama’s birth place or his birth certificate, it is about the marketability of a book destroyed by a competitor, for whatever reason.
View the complete article at:
http://www.wnd.com/2013/10/oral-argu...famation-case/