Klayman’s Desperate Argument

The Worldnetdaily had their hearing on Thursday where their attorney, the legendarily incompetent Larry Klayman, made his arguments to a federal appeals court in their $250 million lawsuit — yes, that number should make you laugh — against Esquire magazine. Then they published an article about that argument, which I’m sure is entirely objective and non-biased. But it shows just how absurd their argument is in the case.

This all started when Esquire published an article in 2011 making fun of Joseph Farah, Jerome Corsi and their birther obsession. The satirical piece said that Corsi’s book had been pulled from the shelves by the publisher (which is WND Books) because it contained lots of inaccuracies. Though it seemed like a quite obvious parody to me, some people took it seriously and the magazine put up a disclaimer 90 minutes after it initially went up that said:

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.

And that fact is the crux of Klayman’s argument and, simultaneously, the reason why they have very little chance of winning this case:

But Farah’s attorney, Larry Klayman, told the three-judge panel the article was originally published as “breaking news,” complete with a siren and with no indication it was satire.

Klayman pointed out that Esquire was compelled to publish a disclaimer 90 minutes after the article appeared, and the first words were, “For those of who didn’t figure it out.”

Klayman asserted that was an obvious admission by Esquire that its readers were mistaking the article for real news.

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.

The former Reagan Justice Department prosecutor added that the article was clearly done to harm WND, which consequently suffered damage to its reputation and a great loss of money.

But here’s the gaping hole in their position: Even if it were true that the fact that some people took it seriously would undermine a defense of satire — and it isn’t, necessarily — the fact that they put up a very obvious disclaimer a mere 90 minutes later means that the only damage they can conceivably show they suffered had to take place in that 90 minute period. It isn’t enough in such a case to show that what was printed was false, they also have to show that it caused tangible harm. But once the disclaimer went up making absolutely clear that it was a parody, it’s no longer actionable no matter how false it is.

The Supreme Court has protected satire to an enormous degree. The Larry Flynt case referred to involved a fake advertisement that appeared in Hustler that had Falwell talking about having sex with his mother. The court ruled that because it was an obvious satire, it was protected by the First Amendment. There is absolutely no legal question that the Esquire article would be protected if it was intended as satire. So from the moment that disclaimer want up, any claim of subsequent damages become irrelevant.

So Klayman is going to have to prove that WND suffered a specific, tangible harm only as a result of people reading the article in the first 90 minutes, before the disclaimer marked it as satire. And given that the book sold a gajillion copies anyway, that’s going to be all but impossible to do. This case is going nowhere. The trial court judge was right and her ruling is almost certainly going to be upheld.

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  • kantalope

    How is WND withdrawing an article because of inaccuracies and falsehoods not obvious satire in the first place?

  • DaveL

    I’m not well-versed on libel law, but isn’t there some standard of reasonableness involved, when it comes to evaluating satire? I mean, it can’t be enough that there exists at least one abject moron out there who thought it was for real, right?

  • How could any article published by Esquire, whether or not it was satire, be any more damaging to WND’s reputation than what they themselves publish on a daily basis?

  • John Pieret

    I think you’d have to be pretty dense or only skimming the article not to catch the reference to a book by Corsi entitled Capricorn One: NASA, JFK, and the Great “Moon Landing” Cover-Up and not realize what is going on.

    And anyone who knows WND would have to giggle at this:

    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.”

  • Typical. You recognize the Esquire article, labeled “satire”, as satire, but you can’t see Klayman’s performance art. Does he have to literally throw his own feces for you to catch on? And don’t get me started on Farah!*

    * Corsi’s the real deal, however. Some are artists. He’s just an asshole.

  • magistramarla

    Will the right-wingers attempt to sue The Onion next?

    As a teacher, I saw that young people who were still very immature used very literal-minded thinking and had a difficult time recognizing satire. As their brains matured, they would begin to “get the joke”. It was fun to watch this happen.

    What does this say about the relative maturity of the brains of the right-wing readers?

  • hunter


    “What does this say about the relative maturity of the brains of the right-wing readers?”

    Does anything really need to be said?

  • martinc

    If I were Klayman, I’d be arguing that the people Farah’s journal and Corsi’s books are aimed at cannot possibly be considered “reasonable people” so the Flynt precendent shouldn’t apply.

  • aluchko

    The suit has no basis but I’m not sure the article was particularly obvious as satire. The problem is the satire comes from having Farah and WND acting like they have integrity, if you know Farah and WND it’s obviouse satire, but if you don’t then they just seem like a not quite completely insane publisher.

  • lordshipmayhem

    the late publisher of Hustler was sued by the late Jerry Falwell

    That must have been one stinky courtroom, what with two corpses in it.

  • The biggest question now is whether the court will sanction Klayman (again) for perjury. You see, one of the defenses Esquire mounted was that they included ‘humor’ tags on the story. Klayman said that they were lying and submitted a screenshot (that included the disclaimer) that didn’t show the humor tags. But if you go to the Wayback Machine, the article clearly was labeled with a humor tag less than one day later (its first capture by the Internet Archive). Klayman deliberately cut off the portion of the page where the tags appear.

    Also, Farah said in an interview just a few days after the article that it was poorly done parody. Kinda hard to claim that it wasn’t obvious satire, when even you recognized that it was satire.

    the late publisher of Hustler was sued by the late Jerry Falwell

    That must have been one stinky courtroom, what with two corpses in it.

    Especially when one of those corpses is still alive today…

  • howardhershey

    Wait a sec. Klayman himself claims that it is “not obvious the Esquire article was satire…” Perhaps he could explain exactly why it is not obvious satire? Too close to the truth? Sometimes it really is hard to parody reality. Sometimes all one need do is repeat reality to be satirical.