The Risks of Defamation on Blogs, Twitter, and Facebook, and the Corsi/Esquire Magazine Case

On November 26 of this year, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued its ruling in a case that it deemed “principally a defamation action.” The action was based on a posting made by journalist Mark Warren on Esquire Magazine’s Politics Blog. Warren’s posting had appeared just a 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, which was published by Joseph Farah’s WND Books.

Just recently then, though, Obama had issued his long-form birth certificate, proving that he had been born in Hawaii, and thus—for most Americans, at least—putting the issue of Obama’s eligibility to become president of the United States to rest.

After Corsi’s book was published, the Esquire posting by Warren then appeared, claiming (falsely, but apparently in jest) that publisher Farah had had the entire print run of 200,000 copies of Corsi’s book pulled from the shelves and pulped, and that it was offering full refunds to buyers.

Ninety minutes after that blog post appeared, Esquire made clear that Warren’s blog post about pulping the books and offering a refund was satirical. And indeed, Farah, the publisher of the book, himself called the blog post a “poorly executed parody”—thus acknowledging as well, that he too knew it was, indeed, a satire or the like. (Notably, Farah’s own characterization of the blog post as a satire may, in the D.C. Circuit’s reckoning have made this a fairly easy win for Esquire in court.)

Still, Farah and Corsi sued nevertheless, with their core claim alleging a cause of action for defamation. However, the three-judge D.C. Circuit panel that heard the case affirmed the dismissal of the defamation complaint against Esquire.)

To prove the elements of a defamation claim under District of Columbia law, as the court stated, one must establish (1) that he or she was the subject of a false and defamatory statement; (2) that the statement at issue was published to a third party; (3) that publishing the statement was at least negligent, if not done with a more culpable mental state; and (4) that the plaintiff suffered either actual or legal harm.

After noting the First Amendment dimensions of defamation law, the D.C. Circuit panel also invoked the precept that holds that defamation liability only adheres if the statement at issue reasonably implies false and defamatory facts. Thus, the D.C. Circuit panel had to decide whether the statements at issue reasonably implied false and defamatory facts.

The D.C. Circuit panel noted, in making its decision, that the statements at issue must be put in context—with that context including, here, being the broader social context, and the literary genre of the writing. One such literary genre—and the one that was most pertinent here—is satire, which by its very nature does not involve actual facts.

Corsi and Farah, wisely, did not challenge the existence of the general First Amendment protection for satire, but they did argue that they did not believe that the Esquire blog post at issue fit the bill, given the facts at issue. To support their argument, they cited evidence that some readers, apparently taking the Esquire post seriously, made follow-up inquiries after reading Esquire’s blog post.

But despite the fact that some readers were indeed fooled by Esquire’s gambit, the D.C. Circuit panel still protected the post as satire, noting that it is in the very nature of satire that not every reader “gets it” at first. But, the Court noted, that feature of the genre does not defeat the First Amendment protection for satire, since the standard is what the reasonable reader would think, and not, for instance, what the average reader—who might or might not be reasonable—would think.

The Need to Be Very Careful About Defamation Risk On Blogs and On Twitter, But Somewhat Less So On Facebook

In addition to illuminating the First Amendment protection of satire, and the safety that it affords speakers and writers, this case also illustrates some defamation risks that arise on blogs and on Twitter. (Facebook is less risky, I believe, for most people when it comes to defamation claims: Facebook friends are likely to be real-life friends, likely to see a lawsuit as out of the question, and likely to have mutual friends to “talk them down” if litigation were to be seriously mentioned.)

In contrast, satire and other forms of humor may not come through as clearly in a blog post or tweet, and a post or tweet that seems funny in the moment may not be so humorous when seen through a judge’s more serious lens, months or even years later. Indeed, in some circumstances in the cold light of day, a joking comment could even look like a true threat—the kind that triggers jail time.

Overall, the lack of any of the inflections of the human voice can chill the Twitter or blog message that the speaker wants conveyed. Moreover, damages can mount up very quickly when a plaintiff can easily count the Twitter users who have read a defamatory tweet. And with retweets’ damages possibly being imputed to the initial tweeter, he or she may find himself or herself on the hook for much more money in damages than he or she can possibly afford.

In the case of the Esquire blog post, even though it was retracted in 90 minutes, a creative lawyer could still try to make a claim for significant damages on Corsi’s behalf, based on supposed lost book sales. While that claim might be weak, Corsi might still bring it—especially if he has the pro bono services of a lawyer friend, and/or if he holds a grudge.