FARAH, et al. v ESQUIRE MAGAZINE, INC., et al.

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FARAH, et al. v ESQUIRE MAGAZINE, INC., et al.

#301

Post by verbalobe » Thu Oct 03, 2013 6:12 pm

And I'm pretty sure he *also* claims that The Onion is a competitor of WND. Which I need to go back to confirm and quote, because that might be the single best quote to come out of the entire history of the case. :lol: :lol: :lol: That's awesome.

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FARAH, et al. v ESQUIRE MAGAZINE, INC., et al.

#302

Post by bob » Fri Oct 04, 2013 12:34 pm

WND: [/break1]wnd.com/2013/10/oral-arguments-in-250m-defamation-case/]Oral arguments in $250M defamation case:


WND vs. Esquire goes to second-highest court in the land





Federal Judge Stephen F. Williams asked the attorney for Esquire magazine what in the First Amendment permitted his client to accuse someone of making money off of gullible readers?





[...]





Esquire argued the article was satire and is entitled to First Amendment protection. The WND suit, however, contends the article is not protected by the First Amendment, because its publication caused real damage by defaming WND and suppressing book sales. Many potential book buyers and media members [highlight]clearly believed[/highlight] the article was a news story reporting the demise of the book, not a work of satire.





[...]





Furthermore, Donnellan claimed satire is “designed to fool readers.” But then, he made just the opposite argument, insisting “reasonable readers” should have been able to tell it was satire.





That remark prompted Judge Janice Rogers Brown to note that Farah had said he received calls from the top editors of major media companies from all over the country, asking if the story was true.





[...]





Furthermore, Klayman contended, Esquire had committed libel by accusing WND of fraud, and the magazine had promoted something it knew not to be true.





He said Esquire had a motive to harm WND’s sales because it is a commercial competitor and its disclaimer had a segment that essentially said [highlight]“don’t read them, read us” on the issue of President Obama’s place of birth[/highlight].





Judge Judith W. Rogers asked Klayman if WND had challenged the document purported to be Obama’s birth certificate as forged?





Klayman replied that the issue was not relevant to the trial.





He told WND the bottom line is it is not about the issue of President Obama’s birth place or his birth certificate, it is about the marketability of a book destroyed by a competitor, for whatever reason.On Falwell:


Judge Williams observed many readers don’t recognize satire and asked Klayman if the instance was similar to the Larry Flynt case in which the late publisher of Hustler was sued by the late Jerry Falwell after the magazine published derogatory satire about him. The Supreme Court voted unanimously in favor of Flynt, ruling that reasonable people would have recognized the outrageous claims as parody.





Klayman replied that the Esquire case was not like the Flynt case because it was not obvious the Esquire article was satire, and that is why the magazine felt compelled to publish a disclaimer just 90 minutes later.Actually, the jury in Falwell found that a reasonable reader would not have believed Hustler's fake ad was true; the appellate courts adopted the jury's finding, but SCOTUS did not "rule" about ad itself.
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#303

Post by Mikedunford » Fri Oct 04, 2013 2:18 pm

The other thing that stuck with me was when the judges asked Esquire's counsel about Joseph Farah's statement that he'd received calls from people at some of the top news agencies in the country asking if the story was true. And the judges wanted to know what Esquire had to say about that.I was sorely disappointed when Esquire's response wasn't simply to cast doubt on Joseph Farah's veracity in making the statement in the first place. "So he says he received an unspecified number of phone calls from some unnamed individuals at some unidentified but nonetheless 'major' news agencies. What am I supposed to rebut?"It might have been fun, but it also might have been unwise. Had Esquire gone that route, I think we might have seen a turn in the conversation that went something like this:"Counsel, we are here on the appeal of a Rule 12(b) dismissal, correct?""Yes, your honor, and --""-and we are therefore obligated, under Twombly, to treat all of the plaintiff's factual allegations - even the ones that are doubtful - as true, are we not?" "Yes, your honor, --""So, moving back to the question that was asked..."
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FARAH, et al. v ESQUIRE MAGAZINE, INC., et al.

#304

Post by Joseph Robidoux III » Fri Oct 04, 2013 3:32 pm




On Falwell:


Judge Williams observed many readers don’t recognize satire and asked Klayman if the instance was similar to the Larry Flynt case in which the late publisher of Hustler was sued by the late Jerry Falwell after the magazine published derogatory satire about him. The Supreme Court voted unanimously in favor of Flynt, ruling that reasonable people would have recognized the outrageous claims as parody.





Klayman replied that the Esquire case was not like the Flynt case because it was not obvious the Esquire article was satire, and that is why the magazine felt compelled to publish a disclaimer just 90 minutes later.Actually, the jury in Falwell found that a reasonable reader would not have believed Hustler's fake ad was true; the appellate courts adopted the jury's finding, but SCOTUS did not "rule" about ad itself.???

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#305

Post by bob » Fri Oct 04, 2013 3:37 pm




On Falwell:


Judge Williams observed many readers don’t recognize satire and asked Klayman if the instance was similar to the Larry Flynt case in which the late publisher of Hustler was sued by the late Jerry Falwell after the magazine published derogatory satire about him. The Supreme Court voted unanimously in favor of Flynt, ruling that reasonable people would have recognized the outrageous claims as parody.





Klayman replied that the Esquire case was not like the Flynt case because it was not obvious the Esquire article was satire, and that is why the magazine felt compelled to publish a disclaimer just 90 minutes later.Actually, the jury in Falwell found that a reasonable reader would not have believed Hustler's fake ad was true; the appellate courts adopted the jury's finding, but SCOTUS did not "rule" about ad itself.???Here's my shocked face that WND got something wrong: :|
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FARAH, et al. v ESQUIRE MAGAZINE, INC., et al.

#306

Post by SueDB » Fri Oct 04, 2013 3:40 pm

Here's my shocked face that WND got something wrong: :|They are consistent, I'll have to give then that... consistently wrong on every level.
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#307

Post by p0rtia » Fri Oct 04, 2013 3:56 pm

I was sorely disappointed when Esquire's response wasn't simply to cast doubt on Joseph Farah's veracity in making the statement in the first place. "So he says he received an unspecified number of phone calls from some unnamed individuals at some unidentified but nonetheless 'major' news agencies. What am I supposed to rebut?"This surprised me too. It seemed like a no-brainer, when confronted with an unsubstantiated claim that on the face of it looks like an exaggeration, for the lawyer not to have asked where the evidence was to back up the claim. Or maybe he knew it to be true (perhaps one or two agencies called), and so went with the "that's normal, they were just calling to get the story" response. :-k
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#308

Post by p0rtia » Fri Oct 04, 2013 4:02 pm

Interesting hearing. In keeping with birfer logic that direct statements that don't support the point you are trying to make can be interpreted to mean exactly the opposite of what they are clearly saying...At one point (around 7:45), Klayman said that Mr. Farah's statement to the Daily Caller shortly after Esquire posted the article--where Farah said that the Esquire post was poorly done satire--was evidence that the article wasn't satire at all. That got an outburst of laughter from one judge and a giggle from another.That burst of laughter was incredible. I'm curious to know if it really was from one of the judges (it was female laughter, I think). Would a judge laugh out loud like that? Could it have been someone in the courtroom? But if it was, wouldn't they have been reprimanded for laughing, so doesn't that mean it must have been a judge? Just a stunning moment. -xx
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#309

Post by bob » Fri Oct 04, 2013 4:07 pm

That burst of laughter was incredible. I'm curious to know if it really was from one of the judges (it was female laughter, I think). Would a judge laugh out loud like that?Judges are people too, e.g., Scalia is frequently caustic with people who he thinks have made stupid arguments. Unprofessional? Perhaps; lifetime appointment has its advantages.Could it have been someone in the courtroom? But if it was, wouldn't they have been reprimanded for laughing, so doesn't that mean it must have been a judge? Just a stunning moment. -xxThere are methods to silently admonish:
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#310

Post by Loren » Fri Oct 04, 2013 5:00 pm

@12:45:Judge: "Would it have made any difference, do you think, if this had appeared in something like The Onion, instead of Esquire's blog?Klayman: "It wouldn't have made a difference."Judge: "Even though The Onion...would The Onion be a competitor?"Klayman: "They're a competitor...So yes, they're competitors."(There's a bit of crosstalk, and it's possible Klayman might have been thinking of Esquire when he got around to saying that last four-word clause, but this is what was said.)

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#311

Post by mimi » Fri Oct 04, 2013 5:34 pm

Friday, October 4, 2013


WND Is Still Misleading Readers About His Lawsuit Against Esquire





[/break1]tripod.com/blog/index.blog/2324364/wnd-is-still-misleading-readers-about-his-lawsuit-against-esquire/]http://conwebwatch.tripod.com/blog/inde ... t-esquire/





I didn't remember that part about the tags. So, it was tagged 'satire' and Joey claims it wasn't?

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FARAH, et al. v ESQUIRE MAGAZINE, INC., et al.

#312

Post by DryInk » Fri Oct 04, 2013 5:39 pm

Friday, October 4, 2013


WND Is Still Misleading Readers About His Lawsuit Against Esquire





[/break1]tripod.com/blog/index.blog/2324364/wnd-is-still-misleading-readers-about-his-lawsuit-against-esquire/]http://conwebwatch.tripod.com/blog/inde ... t-esquire/





I didn't remember that part about the tags. So, it was tagged 'satire' and Joey claims it wasn't?If I remember correctly Klayman submitted a screenshot of the page without the satire tag, but the bottom of the page (where the tag was) had purposely been cropped off. ConWebWatch mentioned it at the time it happened, but I don't have a link handy.




Edit: Clarifying some vague ... stuff



Edit: Adding a [link]link,http://conwebwatch.tripod.com/blog/inde ... e-lawsuit/[/link] to the original blog post from ConWebWatch last March.
Let's just assume I said something witty.

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#313

Post by p0rtia » Fri Oct 04, 2013 9:41 pm

Thanks, Bob :-bd
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FARAH, et al. v ESQUIRE MAGAZINE, INC., et al.

#314

Post by Dolly » Tue Nov 26, 2013 12:57 pm

tweet from Leslie Paul Machado @les_machadoCo-chair of LeClairRyan's Media, Internet and ecommerce team│ Recovering sportswriter │GW Law Adjunct Professor│Aspiring bloggerWashington, DC · dcslapplaw.com[/break1]com/les_machado/]https://twitter.com/les_machado/[/break1]com/les_machado/status/405356076121726976]https://twitter.com/les_machado/status/ ... 61217269767:23 AM - 26 Nov 13DC Circuit Affirms Dismissal of Farah complaint against Esquire Under 12(b)(6); avoids deciding issue under anti-SLAPP statute. #birther
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#315

Post by Piffle » Tue Nov 26, 2013 1:17 pm

=D> ...holding, no doubt, that clients who choose Larry Klayman to represent them in their defamation suits have a fool for a lawyer.

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#316

Post by Loren » Tue Nov 26, 2013 1:44 pm

I've procured the opinion. Give me a few minutes to upload it.EDIT: [/break1]scribd.com/doc/187326822/Joseph-Farah-v-Esquire-Magazine-Court-of-Appeals-Decision-Affirming-District-Court] ... rict-CourtIt was a per curiam decision, which the summary says holds that the District Court opinion "is hereby affirmed for the reasons in the accompanying opinion."

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#317

Post by Loren » Tue Nov 26, 2013 1:56 pm

Perhaps the core of the decision (pp. 15-17):---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 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 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 counterfactual 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?”

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#318

Post by bob » Tue Nov 26, 2013 2:06 pm

It was a per curiam decision, which the summary says holds that the District Court opinion "is hereby affirmed for the reasons in the accompanying opinion."Circuit Judge BROWN concurring in the judgmentDid Brown write a separate opinion?
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#319

Post by AnitaMaria » Tue Nov 26, 2013 2:10 pm

The ruling is available on the court's website.[link]Farah v Esquire ruling,http://www.cadc.uscourts.gov/internet/o ... 467977.pdf[/link]

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#320

Post by Loren » Tue Nov 26, 2013 2:18 pm

Circuit Judge BROWN concurring in the judgmentDid Brown write a separate opinion?Nope, just the one opinion.

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#321

Post by Mr. Gneiss » Tue Nov 26, 2013 2:24 pm

So, am I reading the decision correctly that it was decided 2-1 with Senior Circuit Judge Williams dissenting without opinion?

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#322

Post by realist » Tue Nov 26, 2013 2:27 pm

The ruling is available on the court's website.[link]Farah v Esquire ruling,http://www.cadc.uscourts.gov/internet/o ... 467977.pdf[/link]Loren posted the link upthread, and it's here as well...[/break1]scribd.com/doc/187326822/Joseph-Farah-v-Esquire-Magazine-Court-of-Appeals-Decision-Affirming-District-Court] ... rict-Court
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#323

Post by bob » Tue Nov 26, 2013 2:30 pm

Nope, just the one opinion."Hmmm."So Judge Brown agrees with the result but not the analysis, yet doesn't explain what she thinks is the correct rationale.Given the decision punts on the anti-SLAPP issue, that's probably the sticky point. Most likely whether the D.C. anti-SLAPP statute can be asserted in federal court.
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#324

Post by bob » Tue Nov 26, 2013 2:33 pm

So, am I reading the decision correctly that it was decided 2-1 with Senior Circuit Judge Williams dissenting without opinion?Judges Rogers (the author) and Williams agree on the result and the rationale. Judge Brown agrees with the result; implied is that she doesn't agree with the rationale.
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#325

Post by bob » Tue Nov 26, 2013 2:40 pm

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?”I'm sure the drafting clerk had fun including that line.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 book [highlight]notwithstanding evidence that its central claim is false[/highlight]. :-bd
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