Not Actual Malice, Actually | Page 1

Not Actual Malice, Actually

By: Jack Greiner on December 2, 2013 on graydon.law

In the world of defamation, there is falsity and then there is “knowing falsity.” Without going into a lot of detail, anyone who wants to sue for defamation needs to prove that what was said was false. And a public figure needs to prove that the person who said it knew it was false. So if a writer posted on Esquire Magazine’s Politics Blog that a book claiming to “prove” that Barack Obama was not eligible to be president had been pulled from the shelves – knowing that was not the case – the book’s author and publisher would each have a pretty strong case for defamation, right? Uh, no. At least not according to the United States Court of Appeals for the D.C. Circuit.

An explanation is in order. Joseph Farah is the owner/publisher of WND Books. Farah also operates a Web site called WorldNetDaily. An author named Jerome Corsi wrote a book published by WND entitled “Where’s the Birth Certificate? The Case That Barack Obama is not Eligible to be President.” When the book was released, WorldNetDaily touted it on its Web site in BOLD CAPS! Of course, despite the hype supplied by Farah, three weeks earlier, President Obama had released his long form birth certificate, which pretty much debunked the book’s premise, if not it’s very title.

One day after the book’s release, Mark Warren, an Esquire writer, posted on the Esquire Politics blog this headline: “BREAKING: Jerome Corsi’s Birther Book Pulled from Shelves!” The piece went on to say that Farah would refund the purchase price to anyone who’d already bought the book. Warren was apparently having some fun at the book’s expense. But not everyone was amused. Especially Farah and Corsi, who filed defamation suits.

As I mentioned above, Warren knew when he wrote the piece that the book hadn’t been pulled and that Farah wasn’t offering refunds. His objective was to use satire to demonstrate the book’s sheer absurdity. And “satire” was Esquire’s defense. A publication isn’t “false” if a reasonable reader would understand that it was not intended to be factual. This is why I can freely say that Tony LaRussa is the spawn of Satan. (Although, I will note that LaRussa has never proven that point false).

Farah and Corsi didn’t quarrel with the legal point, but they pointed to facts that suggested a reasonable person wouldn’t have understood it was satire. For example, within 90 minutes of originally running Warren’s post, Esquire put up a clarification that said in part:

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“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.”

Farah and Corsi also noted that at least some readers contacted WND to ask about the recall upon hearing the “news” about the Esquire blog post. But that anecdotal evidence wasn’t enough.

The court applied the “reasonable reader” test. And it determined that the blog post was sufficiently over the top that a reasonable reader would not conclude it was factual. The fact that some readers didn’t get the joke wasn’t enough to change the outcome. And the court was not interested in effectively punishing Esquire for running the clarification, for the benefit of those readers who didn’t immediately get it.

Satire and parody have been part of our literary tradition for a long time. And while the folks at WDN may not like it, I think the court got this one right.