Satirical Anti-Birther Blog Post Protected by DC’s Anti-SLAPP Law–Farah v. Esquire

By Eric Goldman

Farah v. Esquire Magazine, Inc., 2012 WL 1970897 (D.D.C. June 4, 2012). TPM coverage.

Joseph Farah is CEO/editor of WorldNetDaily, and Jerome Corsi is a senior staff reporter there. WorldNetDaily has published hundreds of stories on Birther issues. Corsi wrote a book, “Where’s the Birth Certificate? The Case That Barack Obama Is Not Eligible To Be President,” published May 17, 2011. The book publication was accompanied by a major publicity push. (Un?)fortunately for Corsi, Pres. Obama released his long-form Hawaiian birth certificate on April 27, 2011, which was supposed to end the Birther controversy. Needless to say, it didn’t have that effect. Instead, the hype machine cranked up even higher, and WorldNetDaily published dozens of articles on Birther issues and Corsi’s book prior to the book’s release. The Birther hype allegedly caused Corsi’s book to go to the “#1″ position on Amazon.

On May 18, 2011, the day after the release of Corsi’s book, Mark Warren posted a blog post to Esquire.com’s Politics Blog under the tag “humor.” The blog post was entitled “BREAKING: Jerome Corsi’s Birther Book Pulled From Shelves!,” showed the cover of Corsi’s book, and said:

In a stunning development one day after the release of Where’s the Birth Certificate? The Case that Barack Obama is not Eligible to be President, by Dr. Jerome Corsi, World Net Daily Editor and Chief Executive Officer Joseph Farah has announced plans to recall and pulp the entire 200,000 first printing run of the book, as well as announcing an order to refund the purchase price to anyone who has already bought either a hard copy or electronic download of the book.

In an exclusive interview, a reflective Farah, who wrote the book’s forward and also published Corsi’s earlier best-selling work, Unfit for Command: Swift Boat Veterans Speak out Against John Kerry and Capricorn One: NASA, JFK, and the Great “Moon Landing” Cover-Up, said that after much serious reflection, he could not go forward with the project. “I believe with all my heart that Barack Obama is destroying this country, and I will continue to stand against his administration at every turn, but in light of recent events, this book has become problematic, and contains what I now believe to be factual inaccuracies,” he said this morning. “I cannot in good conscience publish it and expect anyone to believe it.”

When asked if he had any plans to publish a corrected version of the book, he said cryptically, “There is no book.” Farah declined to comment on his discussions of the matter with Corsi.

A source at WND, who requested that his name be withheld, said that Farah was “rip-shit” when, on April 27, President Obama took the extraordinary step of personally releasing his “long-form” birth certificate, thus resolving the matter of Obama’s legitimacy for “anybody with a brain.”

“He called up Corsi and really tore him a new one,” says the source. “I mean, we’ll do anything to hurt Obama, and erase his memory, but we don’t want to look like f___ing idiots, you know? Look, at the end of the day, bullshit is bullshit.”

Corsi, who graduated from Harvard and is a professional journalist, could not be reached for comment.

A law professor isn’t the best expert to parse humor, but I must confess that I find the humor in the post subtle at best. Reading the post cold, I didn’t see anything unbelievable about the post until the fourth paragraph and the “rip-shit” reference (I’ve heard–and occasionally said–phrases that would make a sailor blush, but “rip-shit” was a new one for me). The reference to erasing Obama’s memory also seemed a little over-the-top, and it seemed unlikely that the Birther crowd would make self-denigrating comments (“anyone with a brain” and “bullshit is bullshit”) given the general lack of self-awareness I’ve seen from that community. Otherwise, the quotes put into the mouths of real people are plausible, and the overall journalistic style of the post is designed to enhance credibility with readers.

Even the “humor” tag is ambiguous. After all, the post could be laughing at true developments in the Birther Movement. There would be something funny about tearing up a Birther book because the President scooped the book, even if that were 100% true. Part of the problem is that the Birthers are a little self-parodic; their positions are so extreme and not credbile that it’s almost impossible to take anything they do seriously. Thus, when the truth is so mockable, parodying it is really, really hard.

More generally, this blog post reminds me why I HATE April Fools Day posts by bloggers. I explain my position here. If anything, over the past 4 years, it has gotten virtually impossible to come up with factual statements that almost believable but nevertheless too outrageous to be true. If you’re looking for a paper topic, you should research the April Fools Day blog posts from a few years and see how many of those purported jokes actually have been realized.

At best, then, Warren wrote a poorly executed joke blog post. In less than 90 minutes, realizing that not everyone was getting the joke, Esquire appended the following:

UPDATE, 12:25 p.m., for those who didn’t figure it out yet, and the many on Twitter for whom it took a while: We committed satire this morning to point out the problems with selling and marketing a book that has had its core premise and reason to exist gutted by the news cycle, several weeks in advance of publication. Are its author and publisher chastened? Well, no. They double down, and accuse the President of the United States of perpetrating a fraud on the world by having released a forged birth certificate. Not because this claim is in any way based on reality, but to hold their terribly gullible audience captive to their lies, and to sell books. This is despicable, and deserves only ridicule. That’s why we committed satire in the matter of the Corsi book. Hell, even the president has a sense of humor about it all. Some more serious reporting from us on this whole “birther” phenomenon here, here, and here.

Good satires don’t need a post-publication correction, but nevertheless the quick correction should have ended the matter–no harm, no foul. Not so with Farah and Corsi. Off to federal court they went, seeking “more than $100 million in actual and compensatory damages and more than $20 million in punitive damages.”

Just like law professors are bad at deconstructing humor, federal judges aren’t much better. The court says:

The Blog Post itself bore indicia of its satiric nature. The page was tagged as “humor.” …The Blog Post started with an exaggerated headline announcing in bold print “Breaking: Jerome Corsi’s Birther Book Pulled From Shelves!” Id. Real news does not usually contain an exclamation point and would not be reported on an opinion page. Further, the headline was accompanied by a logo of a siren, a symbol used by conservative Matt Drudge when commenting on current news to his readers. Id. The text asserted that Messrs. Corsi and Farah announced “plans to recall and pulp the entire 200,000 first printing run of the book” Id. The reference to a first run printing of “200,000 books” is an exaggerated number for a first printing. Also, the Blog Post refers to a fake book, alleged to be authored by Mr. Farah, called “Capricorn One: NASA, JFK, and the Great ‘Moon Landing’ Cover-Up.” Id. The book title alludes to “Capricorn One,” a 1978 movie starring O.J. Simpson and others about a government Mars landing hoax. Finally, the Blog Post includes absurd quotes, such as Mr. Farah’s alleged statement about his own Birther Movement views that “bullshit is bullshit.” Id. These clues reveal that the Blog Post was satire; Mr. Farah immediately recognized that it was.

Notice how weak some of these satiric elements are. I bet 90%+ of Esquire’s readers had never heard of Capricorn One and had no idea that book reference was made up. I bet 99% of Esquire’s readers would not have recognized the 200k advance printing as an inflated number. The exclamation in the headline isn’t much of a tip-off; and the logo siren might (if anything) enhance the perceived credibility. Overall, trying to distill down the humorous elements from this post is quite unsatisfying.

Instead, the court is simply saying that the lawsuit is ridiculous. Fortunately, the DC anti-SLAPP law gives the judge a good tool to end a ridiculous speech-related case quickly. She says that the Warren post relates to an “issue of public interest” (Obama’s constitutional authority to be president) and therefore qualifies for anti-SLAPP protection. The court doesn’t really give the plaintiffs a chance to demonstrate their prima facie case (the burden shift created by the anti-SLAPP law), but perhaps that’s because the court focused on the fact that Farah publicly admitted that he assumed the post was a parody. The court also repeatedly references the fact that the plaintiffs had themselves whipped up a media frenzy. The court sidesteps some controversy over whether federal courts can apply a state procedural law (see FN 10).

The plaintiffs tried to argue that the post fell into the anti-SLAPP law’s commercial speech exception because it attacked their commercial interests in selling the book. The court rightly rejects the argument; even if the blog post had commercial effects, it was not commercial speech. The lack of commerciality also disposes of the plaintiff’s Lanham Act claim. (Accord the Ron Paul case).

I’m not sure the court’s anti-SLAPP analysis is as tight as it should be, but the case illustrates the power and importance of anti-SLAPP laws. Without the anti-SLAPP law, the court would have had to go through even more twisted doctrinal contortions to get rid of this obviously unmeritorious lawsuit. With anti-SLAPP protection, the case gets tossed quickly and the plaintiffs ought to write a check to the defendants. We need more judicial outcomes like this, and federal anti-SLAPP protection would both provide uniform nation-wide coverage and eliminate any questions about whether federal courts can apply state anti-SLAPP protection. Reminder/disclosure: I’m on the board of the Public Participation Project, which is advocating for a federal anti-SLAPP law. If you haven’t done so recently, contact your members of Congress to remind them that you support federal anti-SLAPP protection, and you might consider donating to the PPP.

Atlhough I’m glad the court got to the right outcome so easily, I want to reiterate that I condemn blog posts like Warren’s. It’s our job as bloggers to earn our credibility with our audience, and we should never come anywhere close to the line where readers might miss the satire. Even if Warren’s post wasn’t tortious, it was deeply irresponsible.

UPDATE: A good WSJ article on just how hard it is to come up with something so outrageous that it’s not conceivable.

See a prior blog post on a different Birther-related lawsuit. Other related posts:

* Logging Into Someone Else’s Facebook Account and Posting Messages on Their Friends’ Walls Could Be Identity Theft — In re Rolando S.

* Third Circuit Schizophrenia Over Student Discipline for Fake MySpace Profiles

* Bloggers’ April Fools Jokes

* Teenager Busted for Creating Fake “News” Story

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