Opinion

Alison Frankel

D.C. Circuit knows satire when it sees it, tosses ‘birther’ case vs Esquire

By Alison Frankel
November 26, 2013

Satire, according to an opinion Tuesday by the D.C. Circuit Court of Appeals in a defamation suit against Esquire magazine, is hard to define. But like U.S. Supreme Court Justice Potter Stewart contemplating hard-core pornography (in his oft-quoted concurrence in the 1964 case Jacobellis v. State of Ohio), the appeals court knows it when it sees it. A three-judge appellate panel upheld the dismissal of claims by two prominent members of the ‘birther’ movement, ruling that an Esquire blog post reporting the withdrawal of a book purporting to expose the falsity of President Obama’s birth certificate satisfied the elusive criteria for satire, even if some of the blog post’s readers didn’t get the joke.

In fact, according to Judge Judith Rogers, who wrote the court’s opinion, and Senior Judge Stephen Williams, who joined it, one hallmark of satire is that it takes a while to sink in. (The third judge on the panel, Janice Rogers Brown, concurred in the judgment but did not join the opinion.) “Satire is effective as social commentary precisely because it is often grounded in truth,” Rogers wrote. “Esquire’s story conveyed its message by layering fiction upon fact. The test, however, is not whether some actual readers were misled, but whether the hypothetical reasonable reader could be (after time for reflection).” In this case, the court concluded, Esquire’s blog post contained enough satiric clues to warrant First Amendment protection.

So what was the post? Back in May 2011 – about three weeks after President Obama released the long-form version of his American birth certificate – WND Books, a subsidiary of WorldNetDaily.com, published a book called “Where’s the Birth Certificate: The Case that Barack Obama Is Not Eligible to be President,” by Jerome Corsi. Esquire’s Political Blog greeted the release of Corsi’s book with an online post by Mark Warren that was titled, “BREAKING: Jerome Corsi’s Birther Book Pulled from Shelves!” In Drudge Report style, the post was accompanied by an image of a siren. Its first paragraph read, “In a stunning development one day after the release of Where’s the Birth Certificate … 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.” The post went on to quote Farah’s comments from “an exclusive interview” in which he renounced the book as factually inaccurate in light of Obama’s release of his birth certificate. It also quoted an anonymous source at WND who said, “We don’t want to look like fucking idiots, you know?”

About 90 minutes after the post went up, Esquire posted an update. “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,” the update said, in part. “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.” And just in case you still don’t get it: Esquire’s Harris never actually interviewed Farah or the anonymous WND source he quoted. He made up the entire post about Corsi’s book to express his contempt for WND and Corsi, whom he described later that day to The Daily Caller as “an execrable piece of shit.”

Farah and Corsi’s defamation suit, filed in Washington federal court within weeks of the Esquire blog post, claimed that they and WND suffered grave economic harm in the 1-1/2 hours between Esquire’s original headline and the update clarifying that it was a joke news story. As their lawyer, conservative activist Larry Klayman, told the D.C. Circuit panel at oral argument, WND was swamped with calls from booksellers and readers who believed Esquire’s report. Bookstores purportedly pulled “Where’s the Birth Certificate” from their shelves and purchasers demanded their money back. Mindful that satire is protected under the First Amendment, the plaintiffs argued that Esquire’s post should be scrutinized as commercial speech because the magazine was out to harm a business competitor, WND.

That argument didn’t fly with a deeply skeptical U.S. District Judge Rosemary Collyer, who dismissed the suit in June 2012. “Plaintiffs’ analysis overlooks the content of the Corsi book and plaintiffs’ energetic efforts to promote it,” she wrote. “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.” Collyer essentially said that Farah and Corsi had reaped what they sowed: “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.”

The appeals court was equally unconvinced that Esquire’s post was commercial speech, as opposed to commentary. (Hearst deputy general counsel Jonathan Donnellan called those arguments “patently absurd” and “completely implausible” when he argued for the Esquire defendants at the D.C. Circuit.) So the bulk of the panel’s analysis involved whether Harris’s admitted false statements about Farah, Corsi and WND were satirical in the eyes of a reasonable reader. Klayman argued that Esquire’s blog post read too much like an actual news story to be considered satirical. Reasonable readers, he contended, could and did regard the post as the truth, not as commentary. Esquire’s own clarification, he said, proved the confusion. If the post were so evidently satirical, why would the magazine need to let readers in on the joke?

But the D.C. Circuit said that when the blog post was considered in the context of the ‘birther’ controversy, “the reasonable reader could not understand Warren’s article to be conveying ‘real news’ about Farah and Corsi,” the opinion said. “Reasonable readers of ‘The Politics Blog’ would recognize the prominent indicia of satire in the Warren article.” The first indicator, according to the court, was the very premise of the fictitious article. Politically hip blog readers would have known that Farah would never renounce Corsi’s book. And there were other “humorous or outlandish details” that should have clued readers to Harris’s satiric intent, the court said, like the obviously fictitious book Harris attributed to Corsi (“Capricorn One: NASA, JFK, and the Great ‘Moon Landing’ Cover-Up”) and “incredible counterfactual statements” such as Farah’s purported quote that “There is no book.” Even the Drudge-esque siren and headline were indicators of parody, according to the court. “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,” the court concluded. The judges also said that Esquire shouldn’t be punished for posting an update that clarified its intent.

What’s interesting about the ruling, in addition to the opinion’s citation of The Onion and “Saturday Night Live” as examples of satire that are overtly funny, is the judges’ refusal to separate its evaluation of satire from the subject matter of Esquire’s post. Klayman tried to convince the court that the case isn’t about the rightness or wrongness of the views expressed in Corsi’s book. Unlike Judge Collyer, the D.C. Circuit doesn’t belittle those views, but it holds that Esquire’s blog has to be considered in the context of the birther controversy and the promulgation of it by Farah and Corsi. When you inject yourself into political discourse, the appeals court says, you better be prepared for satire you don’t consider to be funny.

I left messages for Esquire counsel Donnellan and Farah counsel Klayman. Neither got back to me. Esquire was also represented by Davis Wright Tremaine.

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