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Judge grants motion to dismiss 'birther' libel case under D.C. Anti-SLAPP Act, First Amendment

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  1. Libel and Privacy
A libel case brought by a 'birther' -- those who question whether President Obama is a natural-born American and eligible…

A libel case brought by a 'birther' — those who question whether President Obama is a natural-born American and eligible to be president — ended prematurely when a U.S. district judge granted a magazine's motion to dismiss under the D.C. Anti-SLAPP Act, which protects speech relating to issues of public interest.

Joseph Farah, the founder of, sought more than $120 million in actual, compensatory and punitive damages for a satirical blog post on Esquire magazine's website that made false claims about a book that his company published.

Judge Rosemary Collyer for the U.S. District Court in D.C. found that the subject matter of the blog qualified it for protection under the D.C. Anti-SLAPP Act, "as it concerns a 'written or oral statement' made in a 'place open to the public or a public forum in connection with an issue of public interest,'" according to the opinion.

SLAPP, which stands for "strategic lawsuit against public participation," is a suit meant to harass someone involved in a public controversy. Many states have adopted anti-SLAPP statutes that help journalists and others get such cases dismissed early.

Farah sued for defamation, false light invasion of privacy, tortious interference with business relations, violations under the Lanham Act and misappropriation invasion of privacy, according to the opinion.

The judge said the claim under the Lanham Act must be dismissed because the Act only applies to commercial speech, not to satirical non-commercial speech. She added that the post "was a satirical comment on an issue of public concern," and satire is protected speech under the First Amendment.

The judge based her decision that the blog was a satire on several factors, including the fact that the blog was tagged as humor and had an exaggerated headline, and that Farah "immediately recognized the satiric nature of the Blog Post" when he called it “a very poorly executed parody" in an interview conducted about an hour after the blog was posted.

The blog post that prompted the suit said Farah and author Dr. Jerome Corsi planned to "recall and pulp the entire 200,000 first printing run" of Corsi's book, "Where's the Birth Certificate? The Case that Barack Obama is not Eligible to be President."

One day after Corsi's book hit stores, published a piece called “BREAKING:Jerome Corsi’s Birther Book Pulled From Shelves!” The piece, written by Mark Warren, was posted in “The Politics Blog” section of Esquire's website. Esquire published an update less than two hours after the original post cautioning readers that the article was meant to be a satire.

Farah’s attorney, Larry Klayman, said the judge’s decision is flawed.

“It was very unfair,” Klayman said. “I think that what happened was [the judge] found the case unpalatable.”

Klayman said the judge showed a “biased and prejudicial mindset of the case.”

“It’s not her business to make a ruling that Obama was born in Honolulu, Hawaii," Klayman said. "That wasn’t a fact so why would you make a statement like that if it was not part of the case?”

He questioned the judge's lack of discussion of the false light claim and the validity of the D.C. Anti-SLAPP Act as a defense in federal courts given a recent ruling that it is not available to federal defendants.

Klayman said he is going to appeal the decision and ask that a new judge hear the case.

“We are very confident of success,” he said.

Related Reporters Committee resources:

· News: D.C. anti-SLAPP law does not apply in federal court

· The First Amendment Handbook: Defenses — Anti-SLAPP statutes

· The First Amendment Handbook: 1. Libel

· SLAPP Stick: Fighting frivolous lawsuits against journalists


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