Farah v. Esquire Magazine, Inc. , 863 F. Supp. 2d 29 ( 2012 )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
JOSEPH FARAH, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 11-cv-1179 (RMC)
)
ESQUIRE MAGAZINE, INC., et al., )
)
Defendants. )
)
__________________________________________)
MEMORANDUM OPINION
Barack H. Obama, President of the United States, first encountered questions
about his birthplace when he was running in the Democratic Party primaries for the presidential
nomination. Since then, the President has released two birth certificate forms from the State of
Hawaii attesting to his birth in that State. There remain groups of people, nicknamed “birthers,”
who continue to question the President’s place of birth and therefore legitimacy as President.1
One such group is headed by Plaintiffs: WorldNetDaily.com; its wholly-owned
subsidiary, WND Books; Joseph Farah, editor and chief executive officer; and Jerome Corsi,
author of “Where’s the Birth Certificate? The Case That Barack Obama Is Not Eligible To Be
President” (the “Corsi Book”).2 Plaintiffs complain that Defendants are responsible for the
Internet publication of an article on May 18, 2011, which contained false and misleading facts
1
One must be a natural born U.S. citizen to run for President. See U.S. Const. art. II, § 1,
cl. 4 (“No person except a natural born citizen . . . shall be eligible to the Office of President
. . . .”)
2
The Corsi Book was published by WND Books.
about the them and the book, resulting in injury. Defendants are Hearst Communications, Inc.
and Mark Warren;3 they move to dismiss, asserting that their Internet posting was a satirical
swipe at Plaintiffs, well within the bounds of the First Amendment and thus not actionable. The
motion will be granted.
I. FACTS
President Obama was born on August 4, 1961, in Honolulu, Hawaii, to Ann
Dunham, from Wichita, Kansas, and Barack Obama, Sr., from Kenya. The senior Mr. Obama
was attending the University of Hawaii at the time. The couple was divorced in 1964 and, in
1967 when Ann Obama married Lolo Soetoro, the family moved to Jakarta, Indonesia. The
junior Mr. Obama returned to the United States when he was ten years old and thereafter lived
with his maternal grandparents in Honolulu.
Years later, the State of Illinois elected Mr. Obama to the United States Senate.
While serving as a Senator in 2007-08, he entered the Democratic Party primaries for the
presidential nomination. During that primary campaign, questions were raised about his
birthplace and whether he is a natural-born American and thus eligible to be president. Then-
Senator Obama obtained from Hawaii a “short-form” birth certificate of the kind the State
provides to all of its residents and released it to the public. The short-form certificate did not
totally quell the controversy. After his election to the presidency, President Obama obtained a
“long-form” birth certificate from Hawaii. On April 27, 2011, he posted it on the White House
website. See Defs.’ Mem. in Suppt. of Mot. to Dismiss [Dkt. 4], Ex. A (“Findikyan Decl.”), Ex.
3
Esquire Magazine, Inc., is also named as a defendant in this case, but it is not a legal
entity and it has not been served. Accordingly, it is dismissed as a defendant in this case.
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9 (The White House post Apr. 27, 2011). Three weeks later, Plaintiffs published the Corsi Book
questioning the President’s birthplace.
The controversy surrounding President Obama’s birth gave rise to the so-called
“Birther Movement,” a loose knit group of people who did or do question whether he is a
natural-born American and eligible to be president. Plaintiffs have figured prominently among
those who raised questions, such as on June 10, 2008, when they posted a story on WND.com
titled, “Is Obama’s Candidacy Even Constitutional? Secrecy over Birth Certificate, Demand for
‘Natural-born’ Citizenship Cited.” Findikyan Decl., Ex. 8 (WND.com post June 10, 2008); see
also Compl. ¶ 8 (“Plaintiffs . . . 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 of the United States.”).
Mr. Farah is the founder, editor and chief executive officer of
WorldNetDaily.com, self-described as the “first independent online news service in the world.”
Id., Ex. 6 (WND.com post Aug. 24, 2011).4 WorldNetDaily.com publishes a website,
WND.com. Mr. Farah is also the founder and chief executive officer of WND Books, a
publishing company. Id. He writes a daily column published on WND.com and a weekly
syndicated newspaper column for Creators News Service. Id. Dr. Jerome Corsi has a PhD in
Political Science; “he is currently a Senior Staff Reporter for World Net Daily, where he works
as an investigative reporter.” Id., Ex. 46 (www.jeromecorsi.com, About Corsi, (last visited on
May 30, 2012)). In addition to authoring the Corsi Book, Dr. Corsi co-authored “Unfit for
4
MSNBC.com has described WND as “a conspiracy-mongering website with its own
publishing arm . . . .” Findikyan Decl., Ex. 7 (MSNBC.com post Apr. 27, 2011).
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Command – Swift Boat Veterans Speak Out Against John Kerry.” Id.
From June to December 2008, WND posted more than 60 Internet items on the
issue of the President’s birth certificate. In the period between January 2009 through January
2010, WND posted approximately 280 entries on its website that in some form questioned the
legitimacy of the President’s short-form birth certificate. From February 2010 to March 2011,
WND posted another approximately 266 articles on the same issue. Beginning in April 2011,
WND began a major publicity campaign for the upcoming Corsi Book. On or about April 20,
2011, Mr. Farah and WorldNetDaily.com were featured on the Drudge Report, which allegedly
had the effect of causing the soon-to-be-released Corsi Book to “rocket” to the number one
position on Amazon. Id., Ex. 19 (WND.com post Aug. 4, 2011).
The White House posted the long-form version of the President’s birth certificate
on April 27, 2011. Id., Ex. 9 (The White House post Apr. 27, 2011). Plaintiffs were not
convinced. Mr. Farah went on national television to defend the position of the Birther
Movement. Id., Ex. 21 (WND.com post Apr. 27, 2011). Two days later, Mr. Farah posted on
WND’s website a piece entitled, “It’s settled! He’s ineligible.” Id., Ex. 22 (WND.com post Apr.
29, 2011). The posting claimed an “Exclusive: Joseph Farah notes birth certificate of Obama
proves opposite of what media think” and that he “for the first time, can report with confidence
that there is no way on earth Obama is eligible to be sitting in the White House.” Id. Despite the
release of the long-form birth certificate, Mr. Farah confirmed to the media that he had “no
intention of standing down.” Id., Ex. 7 (MSNBC.com post Apr. 27, 2011).
In the three weeks after release of the President’s long-form birth certificate,
WND posted approximately 47 articles questioning its validity and supporting the upcoming
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Corsi Book, including:
• “‘Obama blinked. Now game begins.’ Author suggests disputed presidency
won’t survive publication of book,” id., Ex. 23 (WND.com post Apr. 27, 2011);
• “Guess what prompted Obama to release birth certificate! Request to Hawaii
came day after Corsi book hit No. 1,” id., Ex. 24 (WND.com post Apr. 29, 2011);
and
• “Farah: It’s not a valid birth certificate. Listen as WND editor explains how
Obama not qualified to be prez.” Id. Ex. 25 (WND.com post May 9, 2011).
The Corsi Book was published on May 17, 2011, and was announced on WND’s website with an
article titled, “It’s out! The book that proves Obama’s ineligible. Today’s the day Corsi is
unleashed to tell all about that ‘birth certificate.’” Id., Ex. 26 (WND.com post May 17, 2011).
On the day after publication of the Corsi Book, esquire.com published a piece by
Defendant Mark Warren in “The Politics Blog” section of its website headlined, “BREAKING:
Jerome Corsi’s Birther Book Pulled From Shelves!” Id., Ex. 27 (esquire.com Politics Blog post
May 18, 2011 at 10:50 a.m.) (the “Blog Post”).5 Next to a photo of the Corsi Book’s cover, the
Blog Post read in its entirety:
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
5
The Blog Post was only posted on the Internet; it was never published in Esquire
magazine. The Politics Blog expressly indicated that it was an opinion page. Findikyan Decl.,
Ex. 27 (the Blog Post) (“About this Blog: At last, some sanity, authority, and fairly balanced
opinion arrive in the blogosphere.”). It was tagged as “humor.” Id. (Tags).
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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.
Id. (boldface and italics in original). One and one-half hours later, Esquire added an update to
the Blog Post:
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
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president has a sense of humor about it all. Some more serious reporting
from us on this whole “birther” phenomenon here, here, and here.
Id. (boldface and italics in original).
About an hour later when contacted about the Blog Post by the Daily Caller, Mark
Warren opined that Dr. Corsi is “an execrable piece of shit.” Id., Ex. 28 (dailycaller.com post
May 18, 2011 at 12:06 p.m.) (“The Esquire story, written by Mark Warren, spread across the
Internet moments after being posted on the magazine’s website Wednesday morning. Esquire
has said it was a joke and Warren told [the Daily Caller] he has no regrets about posting it.”). At
the same time, the Daily Caller also contacted Mr. Farah, who said that he had never spoken to
anyone from Esquire and “[n]ever uttered these words or anything remotely resembling them to
anyone. It is a complete fabrication. The book is selling briskly. I am 100 percent behind it.”
Id. Mr. Farah also told the Daily Caller that he was considering “legal options” but he
“assume[d] it [was] a very poorly executed parody.”6 Id.
That evening, at 9:24 p.m., WND posted its own story: “Farah: Major media
fooled, legal options considered ‘You think I’m gonna pull a best-selling book off the shelves?’”
Id., Ex. 43 (WND.com post May 18, 2011 at 9:24 p.m.). WND included a transcript of Mr.
Farah’s interview on WOR News Talk Radio 710 HD – The Steve Malzberg Show:
I got calls from all the top editors at all of the big news agencies across
this country today all asking the same question you know for a comment
on this development, and I’m goin like “Wha – are you guys serious?
You know – You think I’m gonna pull a best-selling book off the
shelves? (laughing) What’s the matter with you?”
6
Esquire.com, like Esquire magazine, has a history of satire and humor regarding
national issues and public figures. See, e.g., Findikyan Decl., Ex. 36 (esquire.com post May 19,
2010, “Exclusive: Bernie Kerik’s Prison To-Do List Leaked!”); id., Ex. 38 (esquire.com post
May 9, 2011, “Bin Laden Home-Video Leak Continues with Osama’s DVR”).
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Id. Twenty-four hours later, at 9:25 p.m. on May 19, 2011, WND.com posted a story headlined,
“Farah vows to sue Esquire, ‘take ownership’ WND editor says he will aggressively pursue
lawsuit for ‘libelous smear.’” Id. Ex. 44 (WND.com post May 19, 2011).
Plaintiffs announced their lawsuit at a press conference on June 28, 2011. They
seek more than $100 million in actual and compensatory damages and more than $20 million in
punitive damages. The Complaint alleges defamation (Count I), false light invasion of privacy
(Count II), tortious interference with business relations (Count III), violations under the Lanham
Act, 15 U.S.C. § 1125(a)(1) (Count IV), and misappropriation invasion of privacy (Count V).
Defendants move to dismiss.7
II. STANDARD OF REVIEW
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6).
A complaint must be sufficient “to give a defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff’s
obligation to provide the grounds of his entitlement to relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to state a claim for relief that is “plausible on its face.” Twombly, 550 U.S. at 570. A court must
treat the complaint’s factual allegations as true, “even if doubtful in fact.” Twombly, 550 U.S. at
7
Pursuant to D.C. Code § 16-5503(c)(1), the Court granted Defendants’ motion to stay
discovery pending a decision on their motion to dismiss. See Minute Order filed Jan. 30, 2012.
-8-
555. But a court need not accept as true legal conclusions set forth in a complaint. Ashcroft v.
Iqbal, 560 U.S. 662, 678 (2009). In deciding a motion under Rule 12(b)(6), a court may consider
the facts alleged in the complaint, documents attached to the complaint as exhibits or
incorporated by reference, and matters about which the court may take judicial notice. Abhe &
Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
Federal Rule of Evidence 201 provides that a court may judicially notice a fact
that is not subject to “reasonable dispute because it (1) is generally known within the trial court’s
territorial jurisdiction; or (2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). A court may take judicial
notice at any stage in a case. Fed. R. Evid. 201(d). Specifically, a court may take judicial notice
of historical, political, or statistical facts, or any other facts that are verifiable with certainty.
Mintz v. FDIC, 729 F. Supp. 2d 276, 278 n.2 (D.D.C. 2010). The matter to be noticed must be
relevant. See Whiting v. AARP, 637 F.3d 355, 364 (D.C. Cir. 2011). In moving to dismiss,
Defendants presented various Internet postings. The Court takes judicial notice of those items.
Defendants rely on these documents not for their truth, but merely to show that those statements
were made. The fact that these Internet postings were made and their written content is not
disputed in this case.
III. ANALYSIS
Plaintiffs’ federal law claim under the Lanham Act must be dismissed because the
Lanham Act only applies to commercial speech, not to satirical non-commercial speech.8
8
The Court has federal question jurisdiction over Plaintiffs’ Lanham Act claim, see 28
U.S.C. § 1331 and supplemental jurisdiction over Plaintiffs’ common law claims. See 28 U.S.C.
§ 1367.
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Further, Plaintiffs’ common law claims must be dismissed because they are barred by the D.C.
Anti-SLAPP Act, which protects speech relating to issues of public interest such as qualifications
for public office, and due to failure to state a claim. Satire9 such as the Blog Post is protected
speech under the First Amendment.
A. D.C. Anti-SLAPP Act
The D.C. Anti-SLAPP (“strategic lawsuits against public participation”) Act, D.C.
Code § 16-5501 et seq., was adopted in 2010. The Act “incorporates substantive rights with
regard to a defendant’s ability to fend off lawsuits filed by one side of a political or public policy
debate aimed to punish the opponent or prevent the expression of opposing points of view.”
Sherrod v. Breitbart, Civil No. 11-477(RJL), 2012 WL 506729, *1 (D.D.C. Feb. 15, 2012)
(citing Rep. of the D.C. Comm. on Public Safety and the Judiciary on Bill 18-893 (Nov. 19,
2010) (“Comm. Report”) at 4). This is just such a suit.
The D.C. Anti-SLAPP Act intentionally follows “the lead of other jurisdictions,
which have similarly extended absolute or qualified immunity to individuals engaged in
protected actions.” Comm. Rep. at 4. In order to extend such immunity, the Act allows
defendants to file a motion to dismiss any claim “arising from an act in furtherance of the right of
advocacy on issues of public interest.” D.C. Code § 16-5502(a). The D.C. Anti-SLAPP Act
9
The Supreme Court has defined “satire” as follows:
Satire has been defined as a work “in which prevalent follies or
vices are assailed with ridicule,” 14 Oxford English Dictionary,
[500 (2d ed. 1989], or are “attacked through irony, derision, or
wit,” American Heritage Dictionary [1604 (3d ed. 1992)].
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 581 n.15 (1994).
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provides that “[i]f a party filing a special motion to dismiss under this section makes a prima
facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on
issues of public interest, then the motion shall be granted unless the responding party
demonstrates that the claim is likely to succeed on the merits.” Id. § 16-5502(b). Defendants
have filed a motion to dismiss because Plaintiffs’ claims are an attack on the Blog Post, an “act
in furtherance of the right of advocacy on issues of public interest.” Id.10
The Act is broad; it applies to claims based on any written or oral statement made:
(i) In connection with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding authorized by law; or
(ii) In a place open to the public or a public forum in connection with an issue of
public interest.
Id. § 16-5501(1)(A). It applies to “[a]ny other expression or expressive conduct that involves
petitioning the government or communicating views to members of the public in connection with
an issue of public interest.” Id. § 16-5501(1)(B). An “issue of public interest” is one “related to
health or safety; environmental, economic, or community well-being; the District government; a
public figure; or a good, product, or service in the market place . . . [but] shall not be construed to
10
Plaintiffs assert that the Anti-SLAPP Act is procedural and thus inapplicable here
because federal courts must apply federal procedural laws. See Erie v. Tompkins, 304 U.S. 64(1938) (federal courts sitting in diversity must apply state substantive laws and federal procedural
laws); see also 3M Co. v. Boulter, Civil No. 11-1527(RLW), 2012 WL 386488 (D.D.C. Feb. 2,
2012) (finding Anti-SLAPP procedure inapplicable in federal court). Other courts have
disagreed. See, e.g., Godin v. Schencks, 629 F.3d 79, 81 (1st Cir. 2010); Henry v. Lake Charles
Am. Press, LLC, 566 F.3d 164 (5th Cir. 2009); U.S. ex rel. Newsham v. Lockheed Missiles &
Space Co., 190 F.3d 963 (9th Cir. 1999); Sherrod v. Breitbart, Civil No. 11-477(RJL), 2012 WL
506729, *1 (D.D.C. Feb. 15, 2012) (D.C. Anti-SLAPP Act “is substantive – or at the very least,
has substantive consequences” and thus is applicable in federal court). The Court finds this latter
view persuasive. It was certainly the intent of the D.C. Council and the effect of the law –
dismissal on the merits – to have substantive consequences.
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include private interests, such as statements directed primarily toward protecting the speaker’s
commercial interests rather than toward commenting on or sharing information about a matter of
public significance.” Id. § 16-5501(3).
Anti-SLAPP laws elsewhere have been applied to bar each of Plaintiffs’ common
law claims. See, e.g., Gardner v. Martino, 563 F.3d 981, 983 (9th Cir. 2009) (affirming
dismissal of defamation, false light invasion of privacy, intentional interference with economic
relations, and intentional interference with prospective economic advantage claims under
Oregon’s anti-SLAPP statute); Mefford v. Cameron Park Cmty. Servs. Dist., Civil No. 2:09-cv-
02992, 2010 WL 2816877 (E.D. Cal. July 16, 2010) (dismissing false light invasion of privacy
and defamation under California’s anti-SLAPP statute).
The Blog Post contained an expression of views that communicated to members
of the public in connection with an issue of public interest, i.e., the dispute over whether
President Obama qualifies by birthright to be President of the United States. Having become
such well-known proponents of one position on the issue, Plaintiffs cannot complain that the
very intensity of their advocacy also became part of the public debate. Those who speak with
loud voices cannot be surprised if they become part of the story.
Plaintiffs resist this conclusion by arguing first that the Blog Post did not focus on
an issue of public concern. Rather, they contend, the substance underlying this lawsuit is
Defendants’ desire to harm Plaintiffs’ reputations and commercial interests. They argue that the
defamatory speech in the Blog Post concerned the business aspect of the Corsi Book, that is,
statements that Plaintiffs planned to recall and pulp the entire 200,000-volume first run printing.
They assert that the commentary regarding President Obama only lurks in the background to the
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thrust of the Blog Post, and that the Blog Post was really an attack on Plaintiffs themselves and
the Corsi Book.
Plaintiffs’ analysis overlooks the content of the Corsi Book and Plaintiffs’
energetic efforts to promote it. The Corsi Book advances Plaintiffs’ argument that President
Obama cannot satisfy a constitutional requirement and thus is ineligible to be president; this
constitutes a statement on a matter of public interest. Commentary on the Corsi Book — its
accuracy, its thesis, and its value — likewise constitutes a statement on a matter of public
interest. The Blog Post focused specifically on the controversy stoked by Plaintiffs’ claims and
enhanced by publication of the Corsi Book, that the President may be foreign-born and thus
barred from serving as president.
About an hour after esquire.com issued the Blog Post, Mr. Farah told the Daily
Caller that the Blog Post was “a very poorly executed parody.” Findikyan Decl., Ex. 28
(dailycaller.com post May 18, 2011 at 12:06 p.m.). In other words, Plaintiffs immediately
recognized the satiric nature of the Blog Post. Mr. Farah also took to the radio airwaves
immediately following the Blog Post to mock those who asked him for comment, saying, “are
you guys serious? . . . You think I’m gonna pull a best-selling book off the shelves?” Id., Ex. 43
(WND.com post May 18, 2011 at 9:24 p.m.). Because later it became inconvenient to treat the
Blog Post as satire cannot erase Plaintiffs’ own contemporaneous admission that it was so
intended. Political satire can be, and often is, uncomfortable to its targets, but that does not
render it any less satiric or any less an expression on a topic of public concern. The controversy
surrounding President Obama’s birthplace reached such a crescendo prior to the release of his
long-form birth certificate that it was dubbed the Birther Movement. That Movement had, and
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apparently continues to have, some committed proponents. Plaintiffs themselves played
leadership roles in the Birther Movement, contributing hundreds of articles questioning the
legitimacy of the Obama Presidency and enthusiastically advertising the Corsi Book.
The Blog Post itself bore indicia of its satiric nature. The page was tagged as
“humor.” Findikyan Decl., Ex. 27 (esquire.com Politics Blog post May 18, 2011 at 10:50 a.m.).
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.
This suit fits entirely within the scope of § 16-5501(1)(A) of 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.” D.C. Code § 16-5501(1)(A). This
suit also comes within § 16-5501(1)(B), as the Defendants’ speech was “expression” involving
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“communicating views to members of the public in connection with an issue of public interest.”
Id. § 16-5501(1)(B). Because this suit arises from Defendants’ speech on matters of public
interest, the suit must be dismissed under the D.C. Anti-SLAPP Act.
Plaintiffs contend that the Blog Post was an attack on Plaintiffs’ commercial
interests and thus that the speech falls within the commercial speech exception in the Act.
Plaintiffs assert that WorldNetDaily.com is a commercial competitor to Hearst Communications,
that Defendants’ statements were directed toward injuring Plaintiffs’ commercial interests, and
thus that the Act does not apply.11 The text of the Blog Post belies this assertion. The target of
the Blog Post’s satiric commentary was the Corsi Book,12 and Mr. Farah (as publisher) and Dr.
Corsi (as author) were named in connection to the Corsi Book. There can be no doubt that the
Corsi Book was a topic of public interest. It continued the argument that the President is not a
natural-born American and is unqualified for office. See Findikyan Decl., Ex. 26 (WND.com
post May 17, 2011) (“The book . . . proves Obama’s ineligible.”). In response, the Blog Post first
mentioned the Corsi Book explicitly and then poked fun at it, suggesting that Mr. Farah had
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 . . . .” Id., Ex. 27 (esquire.com post May 18,
11
Having continually thrust itself into the public limelight in the debate over the
President’s credentials, it would not be unreasonable to conclude that the credentials of Plaintiffs
may be part of the story. The Court does not decide this point as it is unnecessary to this
Opinion.
12
Plaintiffs concede that the relevant aspect of WND at issue here is the Corsi Book, as
they aver that the focus of the Blog Post was “the commercial aspect” of Plaintiffs’ book, “that
the books were being recalled (specifically 200,000 first run prints), that the author and publisher
were refunding the purchase price to all buyers of the book, and that bookstores were pulling the
books from their shelves.” Opp. at 2.
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2011 at 10:50 a.m.). The commercial speech exception in the Act applies to speech that is
“directed primarily toward protecting the speaker’s commercial interests rather than toward
commenting on or sharing information about a matter of public significance.” D.C. Code § 16-
5501(3). The Blog Post cannot be construed as speech directed toward protecting Defendants’
commercial interests. It was satirical comment on an issue of public concern. Because
Defendants have made a prima facie showing that the common law claims at issue here arose
from speech in furtherance of the right of advocacy on issues of public interest and because
Plaintiffs have failed to demonstrate that their claims are likely to succeed on the merits,
Defendants motion to dismiss under the D.C. Anti-SLAPP will be granted.
B. Failure to State a Claim
The rationale that applies to the motion to dismiss under the D.C. Anti-SLAPP
Act also applies to Defendants’ motion to dismiss for due to failure to state a claim. Because
Defendants’ speech is protected by the First Amendment, Plaintiffs cannot pursue their common
law claims based on such speech.
Plaintiffs assert a claim for defamation. A defendant, however, may escape
liability for defamation if the speech is protected under the First Amendment. See White v.
Fraternal Order of Police, 909 F.2d 512, 523 (D.C. Cir. 1990). “[S]peech on public issues
occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special
protection.” Connick v. Myers, 461 U.S. 138, 145 (1983) (internal quotation marks omitted).
Further, the First Amendment protects satire. See, e.g., Hustler Magazine, Inc. v. Falwell, 485
U.S. 46, 53 (1988) (a claim of intentional infliction of emotional distress based on the
publication of a parody was barred by the First Amendment). As explained above, the Blog Post
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was satire on a matter of public concern. Such speech is protected by the First Amendment and
cannot be the basis of a defamation claim.
The same constitutional limitations apply to the claims of false light invasion of
privacy as to a claim for defamation. Weyrich v. New Republic, Inc., 235 F.3d 617, 628 (D.C.
Cir. 2001); Lane v. Random House, Inc., 985 F. Supp. 141, 148 (D.D.C. 1995). Similarly, the
First Amendment provides a privilege against a misappropriation invasion of privacy claim,
permitting “the use of a plaintiff’s name or likeness when that use is made in the context of, and
reasonably relates to, a publication concerning a matter that is newsworthy or of legitimate public
concern.” Raymen v. United Senior Ass’n, Inc., 409 F. Supp. 2d 15, 22-23 (D.D.C. 2006).
Likewise, the Plaintiffs’ claim for tortious interference fails because it is grounded in the same
nonactionable claim for defamation. See Zandford v. Nat’l Ass’n of Sec. Dealers, 19 F. Supp. 2d
1, 3-4 (D.D.C. 1998) (where the court found no prima facie showing of defamation, there could
be no showing that such alleged defamation interfered with business relationships); see also
Christakis v. Mark Burnett Productions, Civil No. 08-6864, 2009 WL 1248947, *5 (C.D. Cal.
Apr. 27, 2009) (First Amendment limitations “apply to all claims whose gravamen is the alleged
injurious falsehood.”).
All of Plaintiffs’ common law claims are based on the same underlying
allegations regarding the Blog Post. Because the Blog Post is satire on a matter of public interest
that is protected by the First Amendment, Plaintiffs’ common law claims of defamation (Count
I), false light invasion of privacy (Count II), tortious interference with business relations (Count
III), and misappropriation invasion of privacy (Count V) will be dismissed.
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C. Lanham Act
Count IV of the Complaint alleges a violation of the Lanham Act, which provides
in pertinent part:
(1) Any person who, on or in connection with any goods or services, or
any container for goods, uses in commerce any word, term, name,
symbol, or device, or any combination thereof, or any false designation
of origin, 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 origin, sponsorship, or approval
of his or her goods, services, or commercial activities by another
person, or
(B) in commercial advertising or promotion, misrepresents the
nature, characteristics, qualities, or geographic origin of his or her
or another person’s goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she
is or is likely to be damaged by such act.
15 U.S.C. § 1125(a)(1).
Plaintiffs assert that:
Defendants . . . caused confusion, mistake and deception through their
publication of false and misleading information and description of fact
which include but are not limited to the accuracy, motives, nature,
characteristics, and qualities of the subject book, on their Internet
advertising and reporting sites . . . .
Compl. ¶ 32. Plaintiffs base this claim on allegations that Plaintiffs and Defendants are
commercial competitors, id. ¶ 31; the Blog Post caused public confusion as to the accuracy of the
Corsi Book, id. ¶ 32; it attributed false statements to Plaintiffs, id. ¶ 12; and it damaged
Plaintiffs’ reputation, credibility, and anticipated success. Id.Every circuit that has addressed the issue has found that the Lanham Act restricts
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only commercial speech, as commercial speech is entitled to reduced protection under the First
Amendment. See Osmose, Inc. v. Viance, LLC, 612 F.3d 1298, 1322-23 (11th Cir. 2010); Utah
Lighthouse Ministry v. Found. for Apologetic Info. & Research, 527 F.3d 1045, 1051-52 (10th
Cir. 2008); Bosley Med. Inst., Inc. v. Kremer, 403 F.3d 672, 677 (9th Cir. 2005); Podiatrist
Ass’n, Inc. v. La Cruz Azul de Puerto Rico, Inc., 332 F.3d 6, 19 (1st Cir. 2003); Boule v. Hutton,
328 F.3d 84, 90 (2d Cir. 2003); Taubman Co. v. Webfeats, 319 F.3d 770, 774 (6th Cir. 2003);
First Health Grp. Corp. v. BCE Emergis Corp., 269 F.3d 800, 803 (7th Cir. 2001); Porous
Media Corp. v. Pall Corp., 173 F.3d 1109, 1120 (8th Cir. 1999); Seven-Up Co. v. Coca-Cola
Co., 86 F.3d 1379, 1384 (5th Cir. 1996).13
While the First Amendment does not protect a competitor who labels his
commercial good with a confusingly similar mark, such “trademark rights do not entitle the
owner to quash an unauthorized use of the mark by another who is communicating ideas or
expressing points of view.” Bosley, 403 F.3d at 677. Here, Defendants referred to the Corsi
Book in the Blog Post, which was satirical speech on a matter of public interest and not
commercial speech. The Blog Post contained an expression of views regarding the dispute over
whether President Obama qualifies by birthright to be President of the United States. Because
the expression cannot be characterized as commercial speech, the Lanham Act does not apply
and Count IV will be dismissed.
IV. CONCLUSION
Accordingly, Defendants’ motion to dismiss [Dkt. 4] will be granted, and the
13
The D.C. Circuirt and the Fourth Circuit have not addressed the issue. See Lamparello
v. Falwell, 420 F.3d 309 (4th Cir. 2005) (declining to resolve the question because the claims
asserted failed on their merits).
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Complaint will be dismissed. A memorializing Order accompanies this Memorandum Opinion.
Date: June 4, 2012 /s/
ROSEMARY M. COLLYER
United States District Judge
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