Joseph Farah v. Esquire Magazine , 736 F.3d 528 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 3, 2013 Decided November 26, 2013
No. 12-7055
JOSEPH FARAH, ET AL.,
APPELLANTS
v.
ESQUIRE MAGAZINE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-01179)
Larry Klayman argued the cause and filed the briefs for
appellants.
Jonathan R. Donnellan argued the cause for appellees.
With him on the brief were Kristina E. Findikyan, Laura R.
Handman, and Micah J. Ratner. John R. Eastburg entered an
appearance.
Irvin B. Nathan, Attorney General, Office of the Attorney
General for the District of Columbia, Ariel B.
Levinson-Waldman, Senior Counsel to the Attorney General,
and Todd S. Kim, Solicitor General, were on the brief for
amicus curiae District of Columbia in support of appellees.
2
Seth D. Berlin was on the brief for amici curiae Advance
Publications, Inc., et al. in support of appellees.
Before: ROGERS and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
Circuit Judge BROWN concurring in the judgment.
ROGERS, Circuit Judge: This case is principally a
defamation action based on the publication of an article by
journalist Mark Warren on Esquire Magazine’s Politics Blog.
The article was posted one day after the release of a book
entitled “Where’s the Birth Certificate? The Case that Barack
Obama is not Eligible to Be President,” written by Jerome Corsi
and published by Joseph Farah’s WND Books. Farah’s website,
WorldNetDaily, announced the book launch with the headline,
“It’s out! The book that proves Obama’s ineligible: Today’s
the day Corsi is unleashed to tell all about that ‘birth
certificate’” (emphasis in original). Approximately three weeks
earlier, President Obama had released his long-form birth
certificate showing that he was born in Hawaii. Warren’s article
was entitled “BREAKING: Jerome Corsi’s Birther Book
Pulled from Shelves!” (emphasis in original). It stated, in part:
“In a stunning development one day after the release of [the
Corsi book], [Farah] has announced plans to recall and pulp the
entire 200,000 first printing run of the book, as well as
announcing an offer to refund the purchase price to anyone who
has already bought . . . the book.” Approximately ninety
minutes later, Esquire published an “update” on its blog “for
those who didn’t figure it out,” that Warren’s article was
“satire”; the “update” clarified that the article was untrue and
referenced other “serious” Esquire articles on the birth
certificate issue. Farah observed the same day that he thought
3
the blog post was a “poorly executed parody.” Also that day,
Warren told The Daily Caller that he had no regrets about
publishing the fictitious article and expressed his negative view
of the book’s author; his statements were published on The
Daily Caller website that day and the following day.
Farah and Corsi filed suit for compensatory and punitive
damages alleging defamation, false light, interference with
business relations, invasion of privacy, and violation of the
Lanham Act, 15 U.S.C. § 1125(a)(1)(A) and (B). Esquire for all
defendants moved to dismiss on several grounds, and the district
court dismissed the complaint. Farah and Corsi appeal,
focusing in their brief principally on the dismissal under the
D.C. Anti-Strategic Lawsuits Against Public Participation
(“Anti-SLAPP”) Act, D.C. Code § 16-5501 et. seq., and
dismissal of the Lanham Act claim. Upon de novo review, we
hold that the complaint was properly dismissed pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim because the blog post was fully protected political satire
and the “update” and Warren’s statements are protected opinion.
The complaint also fails to state a claim for violation of the
Lanham Act. Accordingly, we affirm the dismissal of the
complaint.
I.
Joseph Farah is the Editor and Chief Executive Officer of
WorldNetDaily.com, a news and commentary Internet
publication which competes with Esquire Magazine. See
Compl. ¶ 2. WND Books is a wholly owned subsidiary of
WorldNetDaily.com. See id. Jerome Corsi is a “world-
renowned author of several New York Times bestsellers . . . and
the author of the newly released book by WND Books, “Where’s
the Birth Certificate? The Case that Barack Obama is Not
Eligible to be President.” Compl. ¶ 3. These individuals and
4
entities have “at all material times covered the controversy
concerning whether or not President Barack Hussein Obama is
a natural-born American citizen eligible to be President.”
Compl. ¶ 8. According to the complaint, see English v. Dist. of
Columbia, 717 F.3d 968, 971 (D.C. Cir. 2013), “[a]bout 25
percent of the American people believe that because President
Barack Obama waited many years to release what he now claims
is his birth certificate, as well as other factors, that the newly
released birth certificate is fraudulent.” Compl. ¶ 10. The
President, “wanting to try to eliminate this issue among voters
and the American populace, . . . recently released what many
people, including [] Corsi, have reason to believe is a fraudulent
birth certificate purporting to show that he was born in Hawaii.”
Compl. ¶ 11.
On the morning of May 18, 2011, at 10:50 a.m., “just as
[Corsi’s] book was released,” Esquire published an online
article by Mark Warren entitled “BREAKING: Jerome Corsi’s
Birther Book Pulled from Shelves!” Compl. ¶ 12 (emphasis
in original). The article contained “false and misleading facts”
about Corsi’s book. Id. The article, on “The Politics Blog,” was
accompanied by a copy of the “Drudge Siren” above an image
of the book’s cover. It read in full:
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 offer to refund the
purchase price to anyone who has already bought either
a hard copy or electronic download of the book.
5
In an exclusive interview, a reflective Farah, who
wrote the book’s foreword 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 fucking idiots, you know? Look, at the end
of the day, bullshit is bullshit.”
6
Corsi, who graduated from Harvard and is a
professional journalist, could not be reached for
comment.
According to the complaint, “[i]mmediately” after the blog
posting, “news organizations, readers of WorldNetDaily,
purchasers and distributors of WND Books and others began
contacting [] Farah for confirmation of the story and comment.”
Compl. ¶ 10. Also, “consumers began requesting refunds[,] . . .
book supporters began attacking Farah and Corsi[,] [and] [b]ook
stores . . . began pulling the book from their shelves, or not
offering it for sale at all.” Compl. ¶ 13. Only after Farah
“issued a statement saying he was exploring legal options
against Esquire and Warren did they purport to issue a
disclaimer.” Compl. ¶ 14. This “so-called disclaimer” was “as
false[] [and] misleading . . . as the initial story that was
published” on the website. Id. It read in full:
DEVELOPING . . .
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
7
a sense of humor about it all. Some more serious
reporting from us on this whole “birther” phenomenon
here, here, and here.
Tags: birther book, jerome corsi, where’s the birth
certificate, drudge without context, birthers, wingnuts,
humor
Later that day Warren told The Daily Caller, an online
publication read by an audience that is interested in the “birther”
issue, see Compl. ¶ 15, that he had “no regrets” about posting
the articles and referred to Corsi as an “execrable piece of shit.”
Id. Warren’s statements were published on The Daily Caller
website on May 18 and 19, 2011, see id., remain on the Internet,
and have been widely published domestically and around the
world. Compl. ¶ 16.
Farah and Corsi, however, “never contemplated, much less
offered, to pull the [Corsi] book from shelves” or “refund
purchases to consumers.” Compl. ¶ 17. Rather, they “believed
at all material times that the contents of the book are accurate
and newsworthy.” Id. Esquire’s representations “resulted in
books being pulled from the shelves by booksellers, harmed
sales and damaged [Farah’s and Corsi’s] goodwill and
reputation . . . among the buying and consuming public.” Id.
On June 28, 2011, Farah and Corsi sued Esquire Magazine,
Inc., Hearst Communications, Inc., and Warren (together
“Esquire”) for defamation, false light, tortious interference with
business relations, and invasion of privacy, as well as violation
of the Lanham Act, 15 U.S.C. § 1125(a). The complaint alleged
that Esquire maliciously made false and defamatory statements
that caused damage to their business, good will, and reputations,
see Compl. ¶¶ 19–20, and “held . . . Farah and Corsi up for
extreme ridicule in the community where they reside and where
8
their works are viewed and read.” Compl. ¶ 22. Further, the
complaint alleged that Esquire, with knowledge of Farah’s
“business relationship with distributors and booksellers,”
intentionally interfered with these relationships causing
“abridgment, limitation, breach or termination of these
relationships as concerns the sale of the [Corsi] book.” Compl.
¶¶ 26–28. The complaint alleged a violation of the Lanham Act,
15 U.S.C. § 1125(a)(1)(A) and (B) in that Esquire is a
“commercial competitor[]” of Farah and Corsi, and that its
“publication of false and misleading information and description
of fact” “caused confusion, mistake and deception” concerning
the “accuracy, motives, nature, characteristics, and qualities of”
the Corsi book. Compl. ¶¶ 31–32. The complaint sought in
excess of $100 million for actual and compensatory damages,
and punitive damages in excess of $20 million. See Compl. ¶
38.
Esquire moved to dismiss the complaint for failure to state
a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). It
also filed a special motion to dismiss the tort claims pursuant to
the D.C. Anti-SLAPP Act, D.C. Code § 16-5501 et seq. To
illustrate the political and social context in which its statements
were made, Esquire attached to its motions the WorldNetDaily
website’s complete archive of articles on President Obama’s
ineligibility to serve, including articles by Farah published
online from September 2009 through August 2011, as well as
samples of Esquire’s satirical publications. See Findikyan Decl.
Exs. 1–46. The district court granted both motions, concluding,
inter alia, that Esquire’s statements were protected under the
First Amendment and that the Lanham Act did not apply to the
non-commercial speech at issue. See Farah v. Esquire, 863 F.
Supp. 2d 29, 39–41 (D.D.C. 2012).
9
II.
To meet the requirements for defamation under District of
Columbia law, a plaintiff must prove (1) that he was the subject
of a false and defamatory statement; (2) that the statement was
published to a third party; (3) that publishing the statement was
at least negligent; and (4) that the plaintiff suffered either actual
or legal harm. See Ayissi-Etoh v. Fannie Mae, 712 F.3d 572,
578 (D.C. Cir. 2013) (citing Crowley v. N. Am. Telecomms.
Ass’n, 691 A.2d 1169, 1173 n.2 (D.C. 1997)). A statement is
“defamatory” if it tends to injure the plaintiff in his trade,
profession or community standing, or to lower him in the
estimation of the community. See Moss v. Stockard, 580 A.2d
1011, 1023 (D.C. 1990). This court, in reviewing the dismissal
of the complaint, “must assume, as the complaint alleges, the
falsity of any express or implied factual statements made” in the
publications at issue. Weyrich v. New Republic, Inc., 235 F.3d
617, 623 (D.C. Cir. 2001). The court must also assume that
Esquire made such statements with the requisite state of mind.
Id. And, “[i]n determining whether a complaint states a claim,
the court may consider the facts alleged in the complaint,
documents attached thereto or incorporated therein, and matters
of which it may take judicial notice.” Abhe & Svoboda, Inc. v.
Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007) (quoting Stewart v.
Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006)). Judicial
notice is properly taken of publicly available historical articles
such as were attached to Esquire’s motions to dismiss. See Fed,
R. Evid. 201(b); Wash. Post v. Robinson, 935 F.2d 282, 291
(D.C. Cir. 1991); Wash. Ass’n for Television & Children v.
FCC, 712 F.2d 677, 683 n.12 (D.C. Cir. 1983) (citing 3 K.
DAVIS, ADMINISTRATIVE LAW TREATISE, §§ 15:1-15:4 (1980)).
“Because the threat or actual imposition of pecuniary
liability for alleged defamation may impair the unfettered
exercise of . . . First Amendment freedoms, the Constitution
10
imposes stringent limitations upon the permissible scope of such
liability.” Greenbelt Coop. Publ’g Ass’n, Inc. v. Bresler, 398
U.S. 6, 12 (1970). Various doctrinal protections preserve “the
breathing space which freedoms of expression require in order
to survive.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 19
(1990) (quotation marks, alteration, and citation omitted).
Indeed, this court has observed that summary proceedings are
essential in the First Amendment area because if a suit entails
“long and expensive litigation,” then the protective purpose of
the First Amendment is thwarted even if the defendant
ultimately prevails. Wash. Post Co. v. Keogh, 365 F.2d 965, 968
(D.C. Cir. 1966).
Under the First Amendment, liability for defamation arises
only if, at a minimum, a defendant’s statement “reasonably
implies false and defamatory facts.” Milkovich, 497 U.S. at 20.
Implicit in this requirement are three protections: First, the First
Amendment “provides protection for statements that cannot
‘reasonably [be] interpreted as stating actual facts’ about an
individual.” Id. (quoting Hustler Magazine v. Falwell, 485 U.S.
46, 50 (1988)); see also Weyrich, 235 F.3d at 624. Where a
defendant’s statement “cannot be construed as representations
of fact,” Old Dominion Branch No. 496, Nat’l Assoc. of Letter
Carriers v. Austin, 418 U.S. 264, 284 (1974), there can be no
defamation. Second, “a statement on matters of public concern
must be provable as false before there can be liability under state
defamation law, at least in situations . . . where a media
defendant is involved.” Milkovich, 497 U.S. at 19–20. In other
words, a defendant cannot be held liable unless the alleged
defamatory statement or implied premise is “verifiable.”
Moldea v. N.Y. Times Co., 22 F.3d 310, 317 (D.C. Cir. 1994)
(“Moldea II”). Where a statement is so imprecise or subjective
that it is not capable of being proved true or false, it is not
actionable in defamation. See Weyrich, 235 F.3d at 624–26.
And third, a defendant will not face liability unless the disputed
11
statement is “reasonably capable of defamatory meaning.” Id.
at 623. These threshold inquiries are questions of law for the
court to decide. See Weyrich, 235 F.3d at 623–24, 627; Moldea
v. N.Y. Times Co., 15 F.3d 1137, 1142, 1144 (D.C. Cir. 1994)
(“Moldea I”).
To determine whether Esquire’s statements could
reasonably be understood as stating or implying actual facts
about Farah and Corsi and, if so, whether those statements were
verifiable and were reasonably capable of defamatory meaning,
the “publication must be taken as a whole, and in the sense in
which it would be understood by the readers to whom it was
addressed.” Afro-American Publ’g Co. v. Jaffe, 366 F.2d 649,
655 (D.C. Cir. 1966) (en banc). “[T]he First Amendment
demands” that the court assess the disputed statements “in their
proper context.” Weyrich, 235 F.3d at 625. Context is critical
because “it is in part the settings of the speech in question that
makes their . . . nature apparent, and which helps determine the
way in which the intended audience will receive them.” Moldea
II, 22 F.3d at 314. “Context” includes not only the immediate
context of the disputed statements, but also the type of
publication, the genre of writing, and the publication’s history
of similar works. See Letter Carriers, 418 U.S. at 284–86;
Moldea II, 22 F.3d at 314–15. The “broader social context,”
too, is vital to a proper understanding of the disputed statements.
Ollman v. Evans, 750 F.2d 970, 983 (D.C. Cir. 1984). After all,
“[s]ome types of writing . . . by custom or convention signal to
readers . . . that what is being read . . . is likely to be opinion, not
fact. It is one thing to be assailed as a corrupt public official by
a soapbox orator and quite another to be labelled corrupt in a
research monograph detailing the causes and cures of corruption
in public service.” Id.
The Supreme Court has repeatedly extended First
Amendment protection to statements that, in context, do not
12
reasonably state or imply defamatory falsehoods in the requisite
sense. In Greenbelt, 398 U.S. at 13–15, the Court concluded
that use of the word “blackmail” to describe the plaintiff’s hard-
nosed negotiating tactics could not reasonably be understood to
mean the plaintiff had committed a criminal offense. In context,
“even the most careless reader must have perceived that the
word was no more than rhetorical hyperbole, a vigorous epithet
used by those who considered [the plaintiff’s] negotiating
position extremely unreasonable.” Id. at 14. Consequently, “the
imposition of liability . . . was constitutionally impermissible”
because “as a matter of constitutional law, the
word ‘blackmail’ . . . was not slander when spoken, and not libel
when reported in the Greenbelt News Review.” Id. at 13.
Similarly, in Letter Carriers, 418 U.S. at 283–87, the Court held
that the use of the word “traitor” in a literary definition
accompanying a union-published “List of Scabs” could not
reasonably be understood to accuse the listed individuals of
treason, because the word was used “in a loose, figurative sense”
and was “merely rhetorical hyperbole, a lusty and imaginative
expression of the contempt felt by union members.” And in
Hustler Magazine, 485 U.S. at 50, the Court held that an ad
parody depicting the Rev. Jerry Falwell in an incestuous
relationship with his mother could not support an emotional
distress claim because the offending speech “could not
reasonably have been interpreted as stating actual facts about the
public figure involved.” So instructed, this court held in
Weyrich, 235 F.3d at 624–25, that a political magazine’s
statement that a conservative leader “began to suffer bouts of
pessimism and paranoia” following his successful rise to power
was not actionable because, in context, the description was
merely “rhetorical sophistry, not a verifiably false attribution in
fact of a ‘debilitating mental condition’” as the plaintiff had
contended.
13
Esquire maintains that Farah and Corsi have no cognizable
defamation claim because the blog post is fully protected satire.
“Satire” is a long-established artistic form that uses means such
as “ridicule, derision, burlesque, irony, parody, [or] caricature”
to censure the “vices, follies, abuses, or shortcomings” of an
individual or society. Satire, ENCYC. BRITANNICA ONLINE,
http://www.britannica.com/EBchecked/topic/524958/satire (last
visited Nov. 1, 2013). Although satire has been employed since
the time of Ancient Greece, it remains “one of the most
imprecise” of all literary designations — a notoriously broad
and complex genre whose “forms are as varied as its victims.”
Id. Sometimes satire is funny. See, e.g., Saturday Night Live
(NBC television broadcast); THE ONION,
http://www.theonion.com (last visited Nov. 1, 2013).
Othertimes it may seem cruel and mocking, attacking the core
beliefs of its target. See, e.g., Hustler Magazine, 485 U.S. 46.
And sometimes it is absurd, as in the classic example of
Jonathan Swift’s proposal to “solve” the problem of Irish
poverty by killing and eating Irish children. See JONATHAN
SWIFT, A MODEST PROPOSAL (1729). Satire’s unifying element
is the use of wit “to expose something foolish or vicious to
criticism.” Satire, ENCYC. BRITANNICA ONLINE. A “parody” is
to the same effect: the style of an individual or work is closely
imitated for comic effect or in ridicule. See MERRIAM
WEBSTER’S COLLEGIATE DICTIONARY at 846 (10th ed. 1993)
(“parody”); see id. at 1038 (“satire”).
Despite its literal falsity, satirical speech enjoys First
Amendment protection. Consistent with the “actual facts”
requirement, “the ‘statement’ that the plaintiff must prove
false . . . is not invariably the literal phrase published but rather
what a reasonable reader would have understood the author to
have said.” Milkovich, 497 U.S. at 23–24 (Brennan and
Marshall, JJ., in dissent agreeing with majority); see also
Hustler Magazine, 485 U.S. at 50. Thus, a satire or parody must
14
be assessed in the appropriate context; it is not actionable if it
“cannot reasonably be interpreted as stating actual facts about an
individual.” Milkovich, 497 U.S. at 20 (quotation marks and
alterations omitted). In light of the special characteristics of
satire, of course, “what a reasonable reader would have
understood” is more informed by an assessment of her well-
considered view than by her immediate yet transitory reaction.
Without First Amendment protection, there is a risk that public
debate would “suffer for lack of ‘imaginative expression’” and
“the ‘rhetorical hyperbole’ which has traditionally added much
to the discourse of our Nation.” Id. (quoting Hustler Magazine,
485 U.S. at 53–55).
Farah and Corsi do not suggest that satire, as a genre, lacks
constitutional protection. Rather, in their view Esquire’s
particular attempt at satire is not protected because reasonable
readers would take the fictitious blog post literally. They point
to the inquiries they received following the blog post, as well as
to Esquire’s own “update” clarifying that the post was satire, as
evidence that many actual readers were misled by Esquire’s
story. But it is the nature of satire that not everyone “gets it”
immediately. For example, when Daniel Defoe first published
The Shortest Way with the Dissenters, an anonymous satirical
pamphlet against religious persecution, it was initially welcomed
by the church establishment Defoe sought to ridicule. See
JAMES SUTHERLAND, ENGLISH SATIRE 83–84 (1958). Similarly,
Benjamin Franklin’s “Speech of Miss Polly Baker,” a fictitious
news story mocking New England’s harsh treatment of unwed
mothers, was widely republished in both England and the United
States as actual news. See MAX HALL, BENJAMIN FRANKLIN &
POLLY BAKER: THE HISTORY OF A LITERARY DECEPTION 33–35,
87–88 (1960).
Indeed, satire is effective as social commentary precisely
because it is often grounded in truth. In a similar case involving
15
a satirical news article, the Texas Supreme Court observed that
satire works by “distort[ing] . . . the familiar with the pretense of
reality in order to convey an underlying critical message.” New
Times v. Isaacks, 146 S.W.3d 144, 151 (Tex. 2004) (quotation
marks omitted). Here, too, Esquire’s story conveyed its
message by layering fiction upon fact. Cf. Weyrich, 235 F.3d at
626. The test, however, is not whether some actual readers were
misled, but whether the hypothetical reasonable reader could be
(after time for reflection). See Pring v. Penthouse Int’l, Ltd.,
695 F.2d 438, 442–43 (10th Cir. 1982); see also Mink v. Knox,
613 F.3d 995, 1007 (10th Cir. 2010); New Times, 126 S.W.2d at
155, 157–58; Garvelink v. Detroit News, 522 N.W.2d 883, 886
(Mich. 1994); Hoppe v. Hearst Corp., 770 P.2d 203, 206 (Wash.
1989); Myers v. Boston Magazine Co., Inc., 403 N.E.2d 376,
379–80 (Mass. 1980). And to the extent Farah and Corsi rely on
Esquire’s “update” to demonstrate reader confusion, Esquire can
hardly be penalized for attempting to set the record straight and
avoid confusion by those readers who did not at first “get” the
satirical nature of Warren’s article.
Considering the blog post in its context, the reasonable
reader could not understand Warren’s article to be conveying
“real news” about Farah and Corsi. The article’s primary
intended audience — that is, readers of “The Politics Blog” —
would have been familiar with Esquire’s history of publishing
satirical stories, with recent topics ranging from Osama Bin
Laden’s television-watching habits to “Sex Tips from Donald
Rumsfeld.” See Findikyan Decl. Exs. 35–42. At the same time,
followers of “The Politics Blog” were politically informed
readers. The “update” notes that Esquire.com had previously
featured several “serious” reports on the birth certificate issue.
Farah and Corsi acknowledge that they were well-known leaders
of the movement questioning President Obama’s eligibility, see
Compl. ¶¶ 8–9, and admit that readers of Esquire.com would
have been familiar with WorldNetDaily and its positions, see
16
Compl. ¶ 15; Appellants’ Br. 15. The postings on Farah’s own
website show that he has been writing on the issue for years, and
Corsi’s then-forthcoming book had recently received publicity
on the Drudge Report. Findikyan Decl. Exs. 1, 19. It defies
common sense to suppose that readers of “The Politics Blog”
were unaware of the birth certificate controversy or the heated
debate it had provoked.
With that baseline of knowledge, reasonable readers of
“The Politics Blog” would recognize the prominent indicia of
satire in the Warren article. Most notably, the very substance of
the story would alert the reasonable reader to the possibility that
the post was satirical. The essence of the fictitious story was
that Farah, a self-described leader (along with Corsi) of the
movement to challenge President Obama’s eligibility to serve,
see Appellants’ Br. 31, had suddenly and without any warning
decided to recall and “pulp” the Corsi book the very day after it
was released. The supposed basis for this decision was
President Obama’s earlier release of his long-form birth
certificate; yet that release occurred three weeks before Corsi’s
book was published, and, as Farah acknowledges, he and Corsi
remained (and still remain) committed to the book even after
that event. See Compl. ¶¶ 11, 17. After the release of the birth
certificate, Farah appeared on MSNBC and published more than
40 articles on WorldNetDaily continuing to promote the book.
See Findikyan Decl. Exs. 7, 21, 22–25; Farah, 863 F. Supp. 2d
at 32. The day of the Corsi book’s release — the day before
Esquire posted its fictitious story — WorldNetDaily announced
the publication on its website with an article entitled, “It’s out!
The book that proves Obama’s ineligible: Today’s the day
Corsi is unleashed to tell all about that ‘birth certificate.’”
Findikyan Decl. Ex. 26. It is inconceivable that Farah would
reverse course so abruptly, as Esquire’s fictitious story claimed.
Readers of “The Politics Blog” would have recognized that the
article was “reporting” events and statements that were totally
17
inconsistent with Farah’s and Corsi’s well-publicized views, and
could not reasonably have taken the story literally.
A number of humorous or outlandish details in the blog post
also betray its satirical nature. The story attributes to Corsi an
obviously fictitious book entitled, Capricorn One: NASA, JFK,
and the Great “Moon Landing” Cover-Up. Of all prominent
cover-ups featured in the news in recent years, a moon cover-up
— much less “the Great ‘Moon Landing’ Cover-Up” — was not
among them. Further, the story includes incredible counter-
factual statements like, “[Farah] said cryptically, ‘There is no
book.’” Farah had published and released the book and then
confirmed the next day to The Daily Caller that the book “was
selling briskly. I am 100 percent behind it.” Findikyan Decl.
Ex. 28. The story repeatedly attributes to a “source at WND”
quotes that are highly unorthodox for a real news story, such as
Farah was “rip-shit,” “bullshit is bullshit,” and “we don’t want
to look like fucking idiots, you know?”
Stylistic elements, such as the exclamatory headline and the
use of the “Drudge Siren” symbol, also would indicate to the
reasonable reader that the story was not serious news. Like
Farah, a reader familiar with WorldNetDaily would recognize
the headline as a parody of WorldNetDaily’s own
sensationalistic headlines. The Drudge Siren (supplemented
here by the tag “Drudge Without Context”) is a symbol of
sensationalistic news from a self-described conservative best
known for breaking the Monica Lewinsky scandal. Matt
Drudge, ENCYC. BRITANNICA ONLINE,
http://www.britannica.com/EBchecked/topic/171936/Matt-
Drudge (last visited Nov. 1, 2013). Readers familiar with the
birth certificate controversy would be aware that Corsi’s book
had received substantial publicity on the Drudge Report.
Findikyan Decl. Ex. 19. For anyone with knowledge of that
18
context, Esquire’s use of the symbol would be understood as an
ironic joke.
Even if none of these elements standing alone — the story’s
substance, outlandish and humorous details, stylistic elements
— would convince the reasonable reader that the blog post was
satirical, taken in context and as a whole they could lead to no
other conclusion. Farah immediately recognized the blog post
as a “parody,” although he told The Daily Caller that in his view
it was “a very poorly executed” one. Findikyan Decl. Ex. 28.
Admittedly, apart from its headline, the article did not employ
the sort of imitation and exaggerated mimicry that are typical of
parody. But satire is a far broader concept than parody,
incorporating a variety of literary forms and devices. And
poorly executed or not, the reasonable reader would have to
suspend virtually all that he or she knew to be true of Farah’s
and Corsi’s views on the issue of President Obama’s eligibility
to serve in order to conclude the story was reporting true facts.
Because the reasonable reader could not, in context,
understand Esquire’s blog post to be conveying “real news” —
that is, actual facts about Farah and Corsi — the blog post was
not actionable defamation. To the contrary, almost everything
about the story and the nature of the issue itself showed it was
political speech aimed at critiquing Farah’s and Corsi’s public
position on the issue of President Obama’s eligibility to hold
office even after he had released his long-form birth certificate
showing he was born in Hawaii. Farah and Corsi were entitled
to express their opinion that its delayed release signaled it was
a forgery, but they could not then sue for defamation because
Esquire conveyed its contrary view by using satire, rather than
straightforward attack. Because the blog post was entitled to
First Amendment protection, the district court properly
dismissed the defamation count as to the blog post for failure to
state a claim.
19
B.
Likewise, Esquire’s “update” and Warren’s post-
publication comments to The Daily Caller are protected because
they merely represented Esquire’s interpretation of Farah’s and
Corsi’s publications on the well-known facts underlying the
dispute over the President’s birthplace. In Moldea I, 15 F.3d at
1144–45 (citations omitted), this court explained that
when a writer gives a statement of opinion that is based
upon true facts that are revealed to readers or which are
already known to readers, such opinions generally are
not actionable so long as the opinion does not
otherwise imply unstated defamatory facts. Because
the reader understands that such supported opinions
represent the writer’s interpretation of the facts
presented, and because the reader is free to draw his or
her own conclusions based upon those facts, this type
of statement is not actionable in defamation. Thus, the
statement “In my opinion Jones is a liar because he
cheats on his taxes” would not be actionable if Jones
had in fact recently been convicted of tax evasion, so
long as the statement did not imply additional, unstated
bases for calling Jones a liar. While it might be wholly
unreasonable to attack Jones’ veracity on the basis of
his tax returns, a reader would be free to make his or
her own assessment of the facts presented.
The “update” and Warren’s comments used strong rhetoric and
salty language, but were nonetheless public statements on an
issue of national concern; such speech lies at the heart of the
First Amendment. See, e.g., Greenbelt, 398 U.S. at 11–12.
The “update” statement that Farah and Corsi are spreading
“lies” is protected opinion because it is based on Esquire’s
revealed premise that Farah and Corsi have promoted the Corsi
20
book notwithstanding evidence that its central claim is false.
The “update” statement regarding Farah’s and Corsi’s “terribly
gullible audience” is also protected opinion, premised on the fact
that a sizeable minority of people — by Farah’s estimation, 25%
of the American populace, see Compl. ¶ 10 — believes in a
position that Esquire considers absurd. The statement that Farah
and Corsi are not motivated by genuine belief, but rather by a
desire to hold their readers “captive” and “to sell books” cannot,
in context, be reasonably read to imply special knowledge of
their actual motives. It is based, like the other statements, on
Esquire’s revealed premise that Farah and Corsi continue to
“sell[] and market[] a book that has had its core premise and
reason to exist gutted by the news cycle, several weeks in
advance of publication.” Any reasonable reader of political blog
commentary knows that it often contains conjecture and strong
language, see, e.g., Findikyan Decl. Exs. 2–5, particularly where
the discussion concerns such a polarizing topic as the
President’s birth certificate. A reasonable reader would
understand Warren’s statements to be expressions of his own
opinion. His reference to Corsi as an “execrable piece of shit,”
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. Milkovich, 497 U.S. at 21. And to the extent the
comment implies the same factual premise as the “update,” it is
similarly protected.
Because the “update” and Warren’s post-publication
comments to The Daily Caller are not actionable in defamation,
the district court properly dismissed the defamation count based
on those statements for failure to state a claim.
C.
Because Farah’s and Corsi’s defamation claim fails, so do
their other tort claims based upon the same allegedly defamatory
21
speech. “[A] plaintiff may not use related causes of action to
avoid the constitutional requisites of a defamation claim.”
Moldea II, 22 F.3d at 319–20 (citing Cohen v. Cowles Media
Co., 501 U.S. 663, 671 (1991)). The First Amendment
considerations that apply to defamation therefore apply also to
Farah’s and Corsi’s counts for false light, see Weyrich, 235 F.3d
at 628, and tortious interference. See Jefferson Cnty. Sch. Dist.
No. R-1 v. Moody’s Investor Servs., Inc., 175 F.3d 848, 857
(10th Cir. 1999); Beverly Hills Foodland, Inc. v. United Food &
Commercial Workers Union, Local 655, 39 F.3d 191, 196–97
(8th Cir. 1994); Unelko Corp. v. Rooney, 912 F.2d 1049, 1058
(9th Cir. 1990). Farah and Corsi do not pursue their invasion of
privacy claim on appeal and it is forfeited. See Burke v. Air Serv
Int’l, Inc., 685 F.3d 1102, 1105 n.1 (D.C. Cir. 2012).
III.
The Lanham (Trademark) Act, 15 U.S.C. § 1051 et seq.,
prohibits deceptive trade practices such as false advertising and
trademark infringement. Section 1125 provides for civil liability
in the case of
[a]ny person who, on or in connection with any goods
or services, . . . uses in commerce any word, term,
name, symbol, or device, or any combination thereof,
or any . . . false or misleading description of fact, or
false or misleading representation of fact, which–
(A) is likely to cause confusion, or to cause
mistake, or to deceive as to the affiliation,
connection, or association of such person with
another person, or as to the . . . sponsorship, or
approval of his or her goods, services, or
commercial activities by another person, or
22
(B) in commercial advertising or promotion,
misrepresents the nature, characteristics, qualities,
or geographic origin of his or another person’s
goods, services, or commercial activities[.]
15 U.S.C. §1125(a)(1)(A) & (B) (emphasis added).
Every circuit court of appeals to address the scope of these
provisions has held that they apply only to commercial speech.
See, e.g., Utah Lighthouse Ministry v. Found. for Apologetic
Info. & Research, 527 F.3d 1045 (10th Cir. 2008); Bosley Med.
Inst., Inc. v. Kremer, 403 F.3d 672 (9th Cir. 2005); see also
Farah, 863 F. Supp. 2d at 40 (collecting cases). For example,
the Tenth Circuit in Utah Lighthouse Ministry, 527 F.3d 1045,
dismissed the Lanham Act claims against the creators of a
parody website that used the name and web design elements of
a religious bookstore to critique the bookstore’s views. The
court explained that “[u]nless there is a competing good or
service labeled or associated with the plaintiff’s trademark, the
concerns of the Lanham Act are not invoked.” Id. at 1054.
Similarly, the Ninth Circuit in Bosley, 403 F.3d at 679, held that
there was no liability where an unsatisfied hair transplant
customer had used Bosley’s mark for purposes of criticism,
because the customer’s “use of the Bosley mark [was] not in
connection with a sale of goods or services — it [was] in
connection with the expression of his opinion about Bosley’s
goods and services.” As support for the assertion that “many
courts have applied the Lanham Act to non-commercial speech,”
Appellants’ Br. 14, Farah and Corsi cite only a self-described
“‘promotional goods’ case” involving the title of a talk-radio
news show, see PAM Media, Inc. v. American Research Corp.,
889 F. Supp. 1403, 1407 (D.Colo. 1995).
The statements posted on the Esquire.com “Politics Blog”
cannot plausibly be viewed as commercial speech under
23
§ 1125(a)(1)(A) or (B) of the Lanham Act. See Compl. Count
IV. Farah and Corsi do not allege that Esquire is selling or
promoting a competing book. Instead, they assert that
“generally” Esquire is their competitor, Compl. ¶ 31, and
maintain that they too “write frequently about the birth
certificate and ‘natural born citizen’ issues,” and that “readers
frequently [] read publications that contain ‘points and
counterpoints.’” Appellants’ Br. 15. Of course, writers write
and publishers publish political tracts for commercial purposes,
and it is possible that the kinds of commercial methods made
illegal by the Lanham Act could be applied to such tracts. The
actions alleged, however, do not involve such methods. The
mere fact that the parties may compete in the marketplace of
ideas is not sufficient to invoke the Lanham Act. To the
contrary, it reinforces Esquire’s position that its blog post was
political speech aimed at critiquing Farah’s and Corsi’s position
on the birth certificate question. As our sister circuits have
emphasized, “trademark rights cannot be used ‘to quash an
unauthorized use of the mark by another who is communicating
ideas or expressing points of view.’” Utah Lighthouse Ministry,
527 F.3d at 1052–53 (citing L.L. Bean, Inc. v. Drake Publishers,
Inc., 811 F.2d 26, 29 (1st Cir. 1987); Bosley, 403 F.3d at 675).
Accordingly, we affirm the dismissal of the complaint
pursuant to Rule 12(b)(6) for failure to state a claim, and we
have no occasion to address Farah’s and Corsi’s other
challenges to the dismissal of their complaint because our
analysis moots any consideration of the Anti-SLAPP Act.