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Joseph Farah, et al v. Esquire Magazine

June 4, 2012

JOSEPH FARAH, ET AL., PLAINTIFFS,
v.
ESQUIRE MAGAZINE, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Barack H. Obama, President of the United States, first encountered questions about his birthplace when he was running in the Democratic Party primaries for the presidential nomination. Since then, the President has released two birth certificate forms from the State of Hawaii attesting to his birth in that State. There remain groups of people, nicknamed "birthers," who continue to question the President's place of birth and therefore legitimacy as President.*fn1

One such group is headed by Plaintiffs: WorldNetDaily.com; its wholly-owned subsidiary, WND Books; Joseph Farah, editor and chief executive officer; and Jerome Corsi, author of "Where's the Birth Certificate? The Case That Barack Obama Is Not Eligible To Be President" (the "Corsi Book").*fn2 Plaintiffs complain that Defendants are responsible for the Internet publication of an article on May 18, 2011, which contained false and misleading facts about the them and the book, resulting in injury. Defendants are Hearst Communications, Inc. and Mark Warren;*fn3 they move to dismiss, asserting that their Internet posting was a satirical swipe at Plaintiffs, well within the bounds of the First Amendment and thus not actionable. The motion will be granted.

I. FACTS

President Obama was born on August 4, 1961, in Honolulu, Hawaii, to Ann Dunham, from Wichita, Kansas, and Barack Obama, Sr., from Kenya. The senior Mr. Obama was attending the University of Hawaii at the time. The couple was divorced in 1964 and, in 1967 when Ann Obama married Lolo Soetoro, the family moved to Jakarta, Indonesia. The junior Mr. Obama returned to the United States when he was ten years old and thereafter lived with his maternal grandparents in Honolulu.

Years later, the State of Illinois elected Mr. Obama to the United States Senate. While serving as a Senator in 2007-08, he entered the Democratic Party primaries for the presidential nomination. During that primary campaign, questions were raised about his birthplace and whether he is a natural-born American and thus eligible to be president. Then-Senator Obama obtained from Hawaii a "short-form" birth certificate of the kind the State provides to all of its residents and released it to the public. The short-form certificate did not totally quell the controversy. After his election to the presidency, President Obama obtained a "long-form" birth certificate from Hawaii. On April 27, 2011, he posted it on the White House website. See Defs.' Mem. in Suppt. of Mot. to Dismiss [Dkt. 4], Ex. A ("Findikyan Decl."), Ex. 9 (The White House post Apr. 27, 2011). Three weeks later, Plaintiffs published the Corsi Book questioning the President's birthplace.

The controversy surrounding President Obama's birth gave rise to the so-called "Birther Movement," a loose knit group of people who did or do question whether he is a natural-born American and eligible to be president. Plaintiffs have figured prominently among those who raised questions, such as on June 10, 2008, when they posted a story on WND.com titled, "Is Obama's Candidacy Even Constitutional? Secrecy over Birth Certificate, Demand for 'Natural-born' Citizenship Cited." Findikyan Decl., Ex. 8 (WND.com post June 10, 2008); see also Compl. ¶ 8 ("Plaintiffs . . . have at all material times covered the controversy concerning whether or not President Barack Hussein Obama is a natural-born American citizen eligible to be President of the United States.").

Mr. Farah is the founder, editor and chief executive officer of WorldNetDaily.com, self-described as the "first independent online news service in the world." Id., Ex. 6 (WND.com post Aug. 24, 2011).*fn4 WorldNetDaily.com publishes a website, WND.com. Mr. Farah is also the founder and chief executive officer of WND Books, a publishing company. Id. He writes a daily column published on WND.com and a weekly syndicated newspaper column for Creators News Service. Id. Dr. Jerome Corsi has a PhD in Political Science; "he is currently a Senior Staff Reporter for World Net Daily, where he works as an investigative reporter." Id., Ex. 46 (www.jeromecorsi.com, About Corsi, (last visited on May 30, 2012)). In addition to authoring the Corsi Book, Dr. Corsi co-authored "Unfit for Command -- Swift Boat Veterans Speak Out Against John Kerry." Id.

From June to December 2008, WND posted more than 60 Internet items on the issue of the President's birth certificate. In the period between January 2009 through January 2010, WND posted approximately 280 entries on its website that in some form questioned the legitimacy of the President's short-form birth certificate. From February 2010 to March 2011, WND posted another approximately 266 articles on the same issue. Beginning in April 2011, WND began a major publicity campaign for the upcoming Corsi Book. On or about April 20, 2011, Mr. Farah and WorldNetDaily.com were featured on the Drudge Report, which allegedly had the effect of causing the soon-to-be-released Corsi Book to "rocket" to the number one position on Amazon. Id., Ex. 19 (WND.com post Aug. 4, 2011).

The White House posted the long-form version of the President's birth certificate on April 27, 2011. Id., Ex. 9 (The White House post Apr. 27, 2011). Plaintiffs were not convinced. Mr. Farah went on national television to defend the position of the Birther Movement. Id., Ex. 21 (WND.com post Apr. 27, 2011). Two days later, Mr. Farah posted on WND's website a piece entitled, "It's settled! He's ineligible." Id., Ex. 22 (WND.com post Apr. 29, 2011). The posting claimed an "Exclusive: Joseph Farah notes birth certificate of Obama proves opposite of what media think" and that he "for the first time, can report with confidence that there is no way on earth Obama is eligible to be sitting in the White House." Id. Despite the release of the long-form birth certificate, Mr. Farah confirmed to the media that he had "no intention of standing down." Id., Ex. 7 (MSNBC.com post Apr. 27, 2011).

In the three weeks after release of the President's long-form birth certificate, WND posted approximately 47 articles questioning its validity and supporting the upcoming Corsi Book, including: * "'Obama blinked. Now game begins.' Author suggests disputed presidency won't survive publication of book," id., Ex. 23 (WND.com post Apr. 27, 2011); * "Guess what prompted Obama to release birth certificate! Request to Hawaii came day after Corsi book hit No. 1," id., Ex. 24 (WND.com post Apr. 29, 2011); and * "Farah: It's not a valid birth certificate. Listen as WND editor explains how Obama not qualified to be prez." Id. Ex. 25 (WND.com post May 9, 2011).

The Corsi Book was published on May 17, 2011, and was announced on WND's website with an article titled, "It's out! The book that proves Obama's ineligible. Today's the day Corsi is unleashed to tell all about that 'birth certificate.'" Id., Ex. 26 (WND.com post May 17, 2011).

On the day after publication of the Corsi Book, esquire.com published a piece by Defendant Mark Warren in "The Politics Blog" section of its website headlined, "BREAKING: Jerome Corsi's Birther Book Pulled From Shelves!" Id., Ex. 27 (esquire.com Politics Blog post May 18, 2011 at 10:50 a.m.) (the "Blog Post").*fn5 Next to a photo of the Corsi Book's cover, the Blog Post read in its entirety:

In a stunning development one day after the release of Where's the Birth Certificate? The Case that Barack Obama is not Eligible to be President, by Dr. Jerome Corsi, World Net Daily Editor and Chief Executive Officer Joseph Farah has announced plans to recall and pulp the entire 200,000 first printing run of the book, as well as announcing an order to refund the purchase price to anyone who has already bought either a hard copy or electronic download of the book.

In an exclusive interview, a reflective Farah, who wrote the book's forward and also published Corsi's earlier best-selling work, Unfit for Command: Swift Boat Veterans Speak out Against John Kerry and Capricorn One: NASA, JFK, and the Great "Moon Landing" Cover-Up, said that after much serious reflection, he could not go forward with the project. "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."

When asked if he had any plans to publish a corrected version of the book, he said cryptically, "There is no book." Farah declined to comment on his discussions of the matter with Corsi.

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 f___ing idiots, you know? Look, at the end of the day, bullshit is bullshit."

Corsi, who graduated from Harvard and is a professional journalist, could not be reached for comment.

Id. (boldface and italics in original). One and one-half hours later, Esquire added an ...


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