Esquire magazine argued before a federal court in Washington, D.C., this morning that its May 2011 commentary about a “birther” book was satire and therefore protected speech under the First Amendment.
Joseph Farah and Jerome Corsi, authors of "Where’s the Birth Certificate? The Case That Barack Obama Is Not Eligible to Be President," sued Esquire for a blog post claiming the authors decided to pull their book off the shelves, citing “factual inaccuracies” regarding President Obama’s citizenship.
Larry Klayman, arguing on behalf of the authors before the three-judge panel Thursday, said the post was not satire and that many readers thought it was real. Judge Stephen Williams countered that some of the best satire in history was not initially understood as satire by many.
Klayman also argued that Esquire’s statements were commercial, aiming to drive down sales of the book. D.C.’s anti-SLAPP statute allows courts to quickly dismiss defamation suits if the speech was on an issue of public interest — which does not include commercial speech — and if it is unlikely the suing party would prevail. By arguing that Esquire’s speech was commercial, Klayman is arguing that D.C.’s anti-SLAPP statute cannot protect the magazine.
Jonathan Donnellan, Esquire’s attorney, said Klayman’s claim that Esquire’s speech was commercial was “patently absurd” and “completely implausible.” The issue of whether President Obama could prove his citizenship was a political, not commercial, debate.
Donnellan also argued that the commentary was clearly satire, as evidenced by the “humor” tag that appeared in small type at the end of the article, by the course language in the piece, and by the over-the-top claims made in the article. Klayman conceded that, if it were satire, it would be protected under the First Amendment.
Notably missing from the oral arguments was a discussion of whether D.C.’s anti-SLAPP law can be applied in federal court. Conflicting opinions have come out of the federal district court on the issue, and the U.S. Court of Appeals in D.C. has yet to rule on it. The district court judge in this case did apply D.C.’s anti-SLAPP statute — but she also dismissed the claim under a federal rule of civil procedure. So the appellate court could simply affirm the decision based on the federal rule and sidestep the anti-SLAPP issue.
Because this case was dismissed in the lower court before it ever went to trial, the book authors would not necessarily win their defamation case if they won this appeal. Rather, they would simply go back to the lower court and proceed with a trial. If Esquire wins, then the defamation claim is dropped.
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