While the Sherrod v. Breitbart appeal has attracted a lot of attention at the DC Circuit, there is another case that could resolve whether the DC anti-SLAPP statute applies in federal court: Farah v. Esquire. There, the plaintiffs/appellants are appealing the district court’s decision granting the defendants’ anti-SLAPP and 12(b)(6) motions and dismissing their false light, defamation, and Lanham Act causes of action.
As alleged in the Complaint, a May 2011 post on Esquire’s politics blog contained fictional statements by publisher Joseph Farah that he would destroy the first-run print of Jerome Corsi’s book, Where’s the Birth Certificate? The Case that Barack Obama is not Eligible to be President; pull copies from bookstore shelves; and refund the purchase price to customers, all because he could no longer publish the book “in good conscience” after the release of Obama’s long-form birth certificate. (The blog post is still available here).
After some convulsions in the Twitter-sphere, Esquire published an “update” an hour after the initial post to confirm that the Farah quotes were fictional. Farah, his website and publishing company, and Corsi brought a claim that the invented quotes harmed their reputations and caused them economic damage in reduced book sales. In dismissing the Complaint under both the DC anti-SLAPP statute and Rule 12(b)(6), the federal district court accepted the defendants’ argument that the post was political satire, not commercial speech, and thus protected under the First Amendment.
Although the 3M court had previously held that that DC anti-SLAPP statute was not applicable in federal court (the “Erie” issue), the Farah district court joined the majority of other federal courts and held that, because “[i]t was certainly the intent of the D.C. Council and the effect of the law – dismissal on the merits – to have substantive consequences,” the statute applied in federal court. In his opening brief, Farah argues that this was error because the heightened pleading standard demanded by the anti-SLAPP statute conflicts with pleading standards under the federal rules, and so the federal rule must govern. This argument sidelines Erie’s procedural/substantive distinction and highlights the Supreme Court’s Shady Grove language which asks whether the federal rule is broad enough to cover or answer the question.
Interestingly, Esquire’s opposition brief reminds the DC Circuit that it need not reach the Erie question because the Complaint was also dismissed under Rule 12(b)(6), and, if it cannot survive a 12(b)(6) motion, the higher anti-SLAPP burden is a moot point. Esquire also cites to numerous decisions from other federal Circuits (including the First, Fifth and Ninth), applying anti-SLAPP motions in federal court, to frame the 3M decision as an outlier.
Two amicus briefs have been filed to date: one by a consortium of media entities and one by the District of Columbia. The media brief argues that the Erie question is answered by determining if the federal rule and state law can co-exist. They argue that they can, citing the 3M decision itself, among others, for ruling separately on the 12(b)(6) and anti-SLAPP motions (with separate outcomes). The media brief also explains the value of anti-SLAPP motions to media defendants, including Dan Snyder’s dismissal of his lawsuit against the Washington City Paper, and argues that this value demands the application of the statute in federal court to assure the twin aims of Erie: equitable application of law and prevention of forum-shopping.
The media brief also adds a new wrinkle to the substantive vs. procedural debate. It points out that the DC Council wields the legislative power to simply abolish the tort of defamation in the District, but opted for the scalpel over the axe to address a perceived problem with the substantive law in its “state.” It then cites various federal decisions holding that state laws making litigation more difficult in general do not necessarily conflict with the Federal Rules.
The District of Columbia’s amicus brief is similar to the amicus brief it filed in the Sherrod appeal and the amicus brief it filed in the Abbas case pending in federal district court. As such, I won’t repeat my discussion of it because you can find it here.
Both of the amicus briefs do not address the question of whether the blog post was protected satire, leaving Farah and Esquire to spar on that issue. Farah claims that the post was a failed attempt at satire since a number of people apparently believed it. According to Farah, the fictional quotes were circumstantially believable as fact, partly because of the “clues” Esquire gave that it was satire were too subtle for the reasonable person to pick up, and partly because Obama had released his long-form birth certificate the month before Corsi’s book was published.
Esquire counters that it was successful satire worthy of protection because protected satire contemplates and allows some duping of the public. It cites the Supreme Court’s recognition in Milkovich that humor and satire are valuable tools of political debate and deserve protection, discusses famous satirical pieces – Jonathon Swift’s A Modest Proposal, available here, and Ben Franklin’s The Speech of Polly Baker, available here – and asks if we would be willing to censor those historic pieces because some readers were actually fooled.
After the district court granted the defendants’ motion, Farah’s lawyer, Larry Klayman, publicly criticized Judge Collyer’s decision. He now asks the DC Circuit to set aside her decision on the basis that it was the product of judicial bias. Farah cites her factual findings and certain language (use of the term “birther,” which Farah finds pejorative) about Obama’s eligibility for President as evidence of a prejudice towards his political views. Farah returns to this argument in his reply brief, here. Esquire responded that a claim of judicial bias requires a motion for recusal or reconsideration, and Farah’s claim was not preserved for appeal as he failed to make such a motion.
Damien Smith, a George Mason law student and legal intern with LeClairRyan