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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