Publisher can't maintain Lanham Act claim against satirical blog post

Farah v. Esquire Magazine, No. 12–7055, 2013 WL 6169660, -- F.3d – (D.C. Cir. Nov. 26, 2013)

Mark Warren wrote a blog post on Esquire Magazine’s Politics Blog.  The entry was posted one day after the release of Jerome Corsi’s book, Where’s the Birth Certificate? The Case that Barack Obama is not Eligible to Be President.  Corsi’s book was published by Joseph Farah’s WND Books.  Farah’s website, written by Jerome Corsi and published by Joseph Farah’s WND Books. Farah’s website, WorldNetDaily, announced the book launch with the headline, “It’s out! The book that proves Obama’s ineligible: Today’s the day Corsi is unleashed to tell all about that ‘birth certificate.’” However, about three weeks earlier, President Obama had released his long-form birth certificate.

Warren’s post was titled “BREAKING: Jerome Corsi’s Birther Book Pulled from Shelves!”  The contents included: “In a stunning development one day after the release of [the Corsi book], [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 ... the book.” The post also referred to Corsi’s supposed previous best-sellers, one about John Kerry and one called Capricorn One: NASA, JFK, and the Great “Moon Landing” Cover-Up.  It included a purported quote from Farah:

“I believe with all my heart that Barack Obama is destroying this country, and I will continue to stand against his administration at every turn, but in light of recent events, this book has become problematic, and contains what I now believe to be factual inaccuracies,” he said this morning. “I cannot in good conscience publish it and expect anyone to believe it.”

[Insert requisite commentary about how terrible it is that this kind of quote can only be expected in a satire these days.]

The post also said:

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.” “He called up Corsi and really tore him a new one,” says the source. “I mean, we’ll do anything to hurt Obama, and erase his memory, but we don’t want to look like fucking idiots, you know? Look, at the end of the day, bullshit is bullshit.”

About an hour and a half later, Esquire published an “update” on its blog “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. ... Some more serious reporting from us on this whole “birther” phenomenon here, here, and here.

Tags: birther book, jerome corsi, where’s the birth certificate, drudge without context, birthers, wingnuts, humor

That day, Farah called the blog post a “poorly executed parody,” and Warren told The Daily Caller that he had no regrets about publishing the post and referred to Corsi as an “execrable piece of shit.”

Farah and Corsi then sued for defamation, false light, interference with business relations, invasion of privacy, and violation of the Lanham Act, seeking $120 million in damages.  The district court dismissed the complaint under DC’s anti-SLAPP law and for failure to state a claim.  Plaintiffs’ appeal focused on DC’s anti-SLAPP law.  The court of appeals affirmed for failure to state a claim: the blog post was “fully protected political satire” and the other statements at issue were opinion.

The complaint alleged that immediately after the blog posting, “news organizations, readers of WorldNetDaily, purchasers and distributors of WND Books and others began contacting [ ] Farah for confirmation of the story and comment.” “[C]onsumers began requesting refunds[,] ... book supporters began attacking Farah and Corsi[,][and][b]ook stores ... began pulling the book from their shelves, or not offering it for sale at all.”  Only after Farah said he was exploring legal options did Esquire post the update.  Farah and Corsi alleged that they believed at all relevant times that the book was accurate and newsworthy, and never contemplated pulling it or refunding purchases. 

In support of its motions, “[t]o illustrate the political and social context in which its statements were made, Esquire attached to its motions the WorldNetDaily website’s complete archive of articles on President Obama’s ineligibility to serve, including articles by Farah published online from September 2009 through August 2011, as well as samples of Esquire’s satirical publications.”

On a motion to dismiss, the court must accept the complaint’s allegations about the falsity of factual statements and the publisher’s requisite state of mind.  It can also take judicial notice of “publicly available historical articles” such as those Esquire provided.  The First Amendment protects statements that can’t reasonably be interpreted as stating actual facts.  Whether the statements could reasonably be understood as stating or implying actual facts about Farah and Corsi must be assessed in light of the publication as a whole, and the sense in which its intended readers would understand it.  Context “includes not only the immediate context of the disputed statements, but also the type of publication, the genre of writing, and the publication’s history of similar works,” as well as the “broader social context.”  Some types of writing signal opinion, not fact.

As a result, despite its literal falsity, satirical speech is protected by the First Amendment.  What the plaintiff must prove false is not necessarily the literal published phrase, but rather what a reasonable reader would have understood.  And that understanding “is more informed by an assessment of her well-considered view than by her immediate yet transitory reaction,” in order to provide breathing room for imaginative expression and hyperbole. 

Plaintiffs pointed to the inquiries they received, as well as Esquire’s own “update,” as evidence that many actual readers were misled.  “But it is the nature of satire that not everyone ‘gets it’ immediately.  Both Daniel Defoe and Benjamin Franklin published satirical works initially treated as serious.  “Indeed, satire is effective as social commentary precisely because it is often grounded in truth.”  Satire works by distorting the familiar “with the pretense of reality in order to convey an underlying critical message.”  Esquire’s story “conveyed its message by layering fiction upon fact.”  The test isn’t whether actual readers were misled, “but whether the hypothetical reasonable reader could be (after time for reflection).”  (Why isn’t this the standard for trademark law?  Good question!)  Plaintiffs argued that Esquire’s update showed confusion, but “Esquire can hardly be penalized for attempting to set the record straight and avoid confusion by those readers who did not at first ‘get’ the satirical nature of Warren’s article.”  (Well, yes, Esquire can’t be penalized because the court says it can’t be penalized—this isn’t wrong, but that’s some serious disavowal working there.)

In context, a reasonable reader couldn’t understand the post to be “real news” about plaintiffs.  Its primary intended audience, readers of the Politics Blog, would have been familiar with Esquire’s history of publishing satirical stories: recent topics ranged from Osama Bin Laden’s television-watching habits to “Sex Tips from Donald Rumsfeld.”  Followers were also politically informed, and Esquire had previously featured several serious reports on birtherism.  Plaintiffs themselves alleged that they were well-known leaders of the birther movement and admitted that Esquire’s readers would have been familiar with WorldNetDaily and its positions. 

“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.”  It’s “inconceivable” that Farah suddenly and without warning decided to recall Corsi’s book, especially given that Obama released his long-form birth certificate three weeks before the book’s release. 

Also, humorous/outlandish details betrayed the post’s satirical nature, including the attribution to Corsi of an "obviously fictitious" book, 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.”  And the supposed WND source gives 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?’”  (Although, in the age of The Daily Show and the quote Warren actually did give the Daily Caller, who can really tell?)  Other stylistic elements, such as the exclamatory headline and the post’s use of the “Drudge Siren” symbol “also would indicate to the reasonable reader that the story was not serious news.”  Just as Farah did, a reader familiar with WorldNetDaily would recognize the headline as a parody of WorldNetDaily’s and Drudge’s “sensationalistic” headlines, both sites at which Corsi’s book received substantial publicity, as readers familiar with birtherism would know.  The Drudge Siren symbol “would be understood as an ironic joke.”

Even if none of these factors alone would be enough, taken in context and together they were dispositive, as Farah immediately recognized.  Though the article didn’t generally use the “exaggerated mimicry” typical of parody, satire is a broader concept.  “And 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.”

So, plaintiffs failed to state a claim based on the blog post.  The update and post-publication comments to the Daily Caller were protected opinion based on the well-known facts underlying the birthers’ claims:

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 notwithstanding evidence that its central claim is false. The “update” statement regarding Farah’s and Corsi’s “terribly gullible audience” is also protected opinion, premised on the fact that a sizeable minority of people—by Farah’s estimation, 25% of the American populace—believes in a position that Esquire considers absurd. The statement that Farah and Corsi are not motivated by genuine belief, but rather by a desire to hold their readers “captive” and “to sell books” cannot, in context, be reasonably read to imply special knowledge of their actual motives.

“Any reasonable reader of political blog commentary knows that it often contains conjecture and strong language, particularly where the discussion concerns such a polarizing topic as the President’s birth certificate.”  Reasonable readers would understand these statements as expressions of opinion, and his reference to Corsi as an “execrable piece of shit” didn’t convey any factual assertion at all.

Without defamation, the other tort claims based on the same allegedly defamatory speech, false light and tortious interference, also failed.

Lanham Act §43(a) only applies to commercial speech.  “Every circuit court of appeals to address the scope of these provisions has held that they apply only to commercial speech.”  (Um … okay, for certain values of “address.”  Plaintiffs apparently only cited PAM Media, Inc. v. American Research Corp., 889 F.Supp. 1403 (D. Colo. 1995), involving the title of a talk radio news show.  Again, this result isn’t wrong, but the law isn’t really that consistent.)

The blog post couldn’t plausibly be viewed as commercial speech.  Plaintiffs didn’t allege that Esquire was promoting a competing book.  Instead they alleged that Esquire was “generally” a competitor on political issues surrounding birtherism.  “Of course, writers write and publishers publish political tracts for commercial purposes, and it is possible that the kinds of commercial methods made illegal by the Lanham Act could be applied to such tracts. The actions alleged, however, do not involve such methods.”  Competing in the marketplace of ideas wasn’t enough to trigger the Lanham Act; that kind of competition just reinforces the point that the blog post was political speech.  Trademark can’t be used to suppress uses of a mark to communicate ideas or express points of view.

All this mooted any anti-SLAPP issues.  (Really?  My understanding is that the DC statute allows a fee award, though it doesn’t require it—what happens if Esquire seeks fees?)