IN THE UNITE D STATE S DIST RICT COURT F OR THE DIS TRICT OF COLUM BIA

__________________________________________) JOSE P H F ARAH, et al., ) ) P laintif fs, ) ) v. ) Civil Action No. 11-c v-1179 (RM C) ) ESQ UIRE MAGAZ INE, INC., et al. , ) ) Defendan ts. ) ) __________________________________________)
MEMORAN DUM OP INION Ba rac k H. Obama , President of the United States, first encounte red que stions about his birthplace when he w as runningin the Democr atic Party primaries f

or the pre sidential nomination. Si nce the n, the President has r elea sed two birth ce rtificate forms fr om the State of Hawa ii attesting to his birth in that St ate. The re r emain g roups of pe ople, nickname d “birther s,” who continue to question the Preside nt’s place of birth and ther efor e leg itimacy as President. 1 One suc h g roup is heade d by Plaintiffs: W orldNetDa ily .com; its wholly -owne d subsidiary , WND Books; J oseph F ara h, editor and c hief e x ecutive of fice r; and Jerome Corsi, author of “ Where’s the Birth Cer tificate? The Case That B ara ck Obama I s Not Eligible To B e President” ( the “Corsi B ook”). Plaintiffs complain that Defe ndants are responsible for the 2 Interne t publication of an a rticle on May

18, 2011, which conta ined fa lse and misleadingfac ts

One must be a

natura l born U.S. citiz en to run for President. SeeU.S. Const. art. I I , § 1, 1 cl. 4 (“No per son except a natura l born citizen . . . shall be elig ible to the Offic e of Pre sident . . . .”) The Corsi B ook was published by WND Books. 2about the them and the book, resulting in injury . Def endants a re H ear st Comm unications, Inc. and Mar k Warren; they

move to dismiss , asser

ting that their

Interne t posting wa s a satirica l 3 swipe at Plaintiffs, well within the bounds of the F irst Amendment and thus not ac tionable. The motion will be g rante d. I
. F ACTS

President Obama

was born on Aug ust 4, 1961, in Honolulu, Hawaii, to Ann Dunham, fr om Wi chita, Ka nsas, and B ara ck Obama, Sr., from Ke nya. The senior Mr. Oba ma
was attending the University of Ha waii at the time. The couple wa s divorced in 1964 a nd, in 1967 when Ann O bama mar ried L olo Soetoro, the family moved to J akar

ta, Indonesia. The junior Mr. Obama

returne d to the United States when he was ten year s old and there afte r lived with his maternal g randpa rents in Honolulu. Yea rs later , the State of I llinois elec ted Mr. Oba ma to the United States Senate
. Whil e ser ving a s a Senator in 2007- 08, he ente red the Democr atic Party primaries f

or the presidential nomination. Duringthat primary campa ign, que stions were r aised a bout his birthplace and whe ther he is a natura l-born Amer ican a nd thus eligible to be president. The nSenator Oba

ma obtained f

rom Haw aii a “shor

t-form” birth cer

tificate of the kind the State provides to all of its residents a nd rele ased it to the public. The shor t-form c ertificate did not totally quell the controve rsy . After his election to the pre sidency , President Obama obtained a “long -for m” birth ce rtificate from Ha waii. On Apr il 27, 2011, he posted it on the Whi te House website. SeeDef

s.’ Mem. in Suppt. of Mot. to Dism iss [ Dkt. 4], Ex . A (“ Findiky an De cl.”) , Ex
. Esquire Mag azine, Inc., is also named a s a def endant in this case , but it is not a leg al 3 entity and it has not bee n serve d. Acc ording ly , it is di smissed as a def endant in this case
. -2-9 (The White House post Apr . 27, 2011). Thre e we eks later , Plaintiffs published the Corsi Book

questioning the President’s birthplac e.

The c ontroversy

surroundingPresident Obama ’s birth g ave r ise to the so-ca lled “B irther Move ment,” a loose knit gr oup of people who did or do question whethe r he is a natura l-born Amer ican a

nd elig ible to be pre sident. Plainti ffs ha ve figured pr ominently

among those who ra ised questions, such as on June 10, 2008, when they posted a story

on WND.com titled, “I s Obama’ s Candidacy Even Constituti onal? Secre cy over B irth Certificate , Demand f or ‘Natural-bor

n’ Citiz enship Cited.” Findikyan De cl., Ex. 8 (WND.com post June 10, 2008); see also Compl. ¶ 8 (“Plaintiffs . . . have at all material times cove red the controve rsy conce rning whether or not President B ara ck Hussein Oba ma is a natura l-born Amer ican c itiz en elig ible to be President of the United States.”).

Mr. Fa rah is the f

ounder, e ditor and chie f executive off icer of WorldNetDaily .com, self- descr ibed as the “ first independe nt online news ser vice in the wor ld.” Id ., Ex . 6 (WND.com post Aug . 24, 2011). WorldNetDaily .com publishes a we bsite, 4 WND.com. Mr. Fa

rah is also the f

ounder a nd chief executive offic er of

WND Books, a publishing compa

ny . Id. He wr ites a daily column published on WND.com and a w eekly sy ndicated ne wspape r column for Creator s News Ser

vice. Id. Dr. Jerome Corsi has a PhD in Polit ical Scienc e; “he is curre ntly a Senior Staff

Reporter for World Net Da ily , wher e he w orks as an inve stigative repor

ter.” Id. , Ex . 46 (www .jeromec orsi.com, About Corsi, (last visited on May 30, 2012)). In addition to authoringthe Corsi Book, Dr . Corsi co-author ed “Unfit for

MSNBC.com has de scribed WND a s “a c onspiracy -mong eringwebsite with its own 4 publishing ar

m . . . .” Findiky an De cl., Ex. 7 (MS NB C.com post Apr. 27, 2011). -3-Command – Swift Boat Ve tera ns Speak Out Ag ainst J ohn Ker ry .” Id
. Fr om J une to Dec ember

2008, WND posted more than 60 Interne t items on the issue of the Preside nt’s birth cer tificate. In the per iod betwee n J anuar y 2009 throug h J anuar

y 2010, WND posted approximately 280 entries on its website that in some for m questioned the leg itimacy

of the Preside nt’s short-for m birth certific ate. F rom Fe bruar y 2010 to March 2011, WND posted another a

pproxi mately

266 article s on the same issue. B eg inning in Apr il 2011, WND beg an a ma

jor publicity

campa ign f

or the upc oming Corsi B ook. On or a bout April 20, 2011, Mr. Fa

rah a nd WorldNetDaily .com wer e fe ature d on the Drudg e Report, whic h alleg edly had the e ffe ct of c ausingthe soon-to-be -re lease d Corsi Book to “r ocket” to the number one position on Amaz on. Id. , Ex . 19 (WND.com post Aug . 4, 2011).

The White House posted the long -for m version of the Pre sident’s birth cer tificate on April 27, 2011. Id ., Ex . 9 (The White House post Apr . 27, 2011). Plaintiffs wer e not convince d. Mr. Fa

rah w ent on national television to defe nd the position of the Birthe r Movement. Id., Ex . 21 (WND.com post Apr. 27, 2011). T wo day s later, Mr. F ara h posted on WND’s website a

piece entitled, “It’s settled! He ’s inelig ible.” Id. , Ex . 22 (WND.com post Apr. 29, 2011). The postingclaimed a n “Exclusive: J oseph F ara h notes birth cer

tificate of Obama proves opposite of what media think” a nd that he “f

or the fir st tim e, ca

n repor t with confidenc e that there is no way

on ear th Obama is elig ible to be sitting in the White House.” Id. Despite the rele ase of the long -for

m birth certific ate, Mr. F ara h confirme d to the media that he ha d “no intention of standing down.” Id., Ex . 7 (MSNBC.com post Apr. 27, 2011)
.

In the three wee ks after

rele ase of

the President’s long -for

m birth certific ate, WND posted approximately 47 article s questioning its validity and supportingthe upcoming
-4-Corsi Book, including :

• “‘O bama blinked. Now g ame be g ins.’ Author sug g ests disputed presidenc y won’t survive publication of book,” id. , Ex . 23 (WND.com post Apr. 27, 2011);

• “Gue ss what prompted Oba ma to rele ase birth c ertificate! Reque st to Hawaii came day afte r Corsi book hit No. 1,” id. , Ex . 24 (WND.com post Apr. 29, 2011); and

• “F ara

h: I t’s not a valid birth ce rtificate . L isten as WND editor explains how Obama not qua lified to be pre z.” Id. Ex . 25 (WND.com post May 9, 2011). The Corsi B ook was published on May 17, 2011, and wa s announce d on WND’s website with an article titled, “I t’s out! The book that pr oves Oba ma’s inelig ible. Today ’s the day Corsi is unleashe d to tell all about that ‘birth cer tificate.’ ” Id. , Ex . 26 (WND.com post May 17, 2011). On the day

afte r publication of the Corsi B ook, esquire.c om published a piece by Def endant Ma

rk Warre n in “The Politics Blog ” sec tion of its website headlined, “ BREAKI NG: J erome Corsi’s Birthe r B ook Pulled From Shelves!” Id. , Ex . 27 (esquire .com Politi cs B log post May 18, 2011 at 10:50 a.m.) (the “B log Post”). Next to a photo of the Corsi Book’s c over, the 5 BlogPost read in its entirety :

In a stun nin g developm entone day afte r the re lease of W

here’ s the Birth Certif

icate? The Case that Barack O bama is not Eligibl e to be President , by

Dr. Jerome Corsi, World Net Daily Editor and Chief Ex ecutive O ffice r Jos eph F ara h has announc ed plans to re call and pulp the entire 200,000 first printing r un of the book, a s well as announc ing a n order to refund the purcha se price to anyone who ha s alrea dy boug ht either a hard c opy

or ele ctronic download of the book. In an exclusive interview, a ref lective F ara

h, who wrote the book’s forwa rd and a lso published Corsi’s earlier best-sellingwork, Unfit for
The B log Post was only

posted on the Interne t; it was never published in Esquire 5 mag azine. The Politics Blogexpressly indicated that it was a

n opinion pag e. F indiky an De cl., Ex . 27 (the B log Post) (“ About this Blog : At last, some sanity , authority , and fa irly balanc ed opinion arrive in the blog osphere .”). It was tag g ed as “ humor.” Id . (Tag s). -5-Command: Swift Boat Veterans Speak out Against John Kerry and Capricorn One: NASA, J

FK, and the Great “Moon Landing” C over- Up , said that afte r much ser ious refle ction, he could not g o forwa rd with the projec t. “I

believe w ith all my

hear t that Ba rac k Obama is de stroying this country , and I

will continue to stand ag ainst his administ ration at ever y turn, but in light of re cent e vents, this book has become problematic, a

nd contains what Inow believe to be fa ctual inac cura cies,” he said this morning . “I

cannot in g ood conscie nce publish it and expect anyone to believe it.” When asked if he had any plans to publish a corre cted ve rsion of the book, he said c ry

ptically , “The re is no book.” F ara h declined to comment on his discussions of the matter with Corsi. A source at WND, who re quested that his name be withheld, said that Fa rah w as “r ip-shit” when, on Apr il 27, President Obama took the extraordinary

step of per sonally

rele asinghis “long -for

m” birth cer tificate, thus re solving the matter of Oba ma’s leg itimacy

for “ any body with a bra in.” “He called up Corsi a

nd rea lly tore him a ne w one,” say s the source . “I mean, we ’ll do any

thing to hurt Oba

ma, and e rase his memory , but we don’t want to look like f___ingidiots, y ou know? L ook, at the end of the day , bullshit is bullshi t.” Corsi, who g raduated from Ha rvar d and is a prof

essional journalist, could not be re ache d for c omment. Id. (boldfac e and italics in orig inal). One and one- half hours later, Esquire added a n update to the B log Post:

UPDATE , 12:25 p.m . , for those who didn’t fi gure it out yet, and the many on Twitter for w hom it took a while : We committ ed satire this morningto point out t he proble ms with selling and mar keting a book that has had its cor e pre mise and re ason to exist g utted by the news c y cle, sever al wee ks in advanc e of publication. Are its author a nd publisher chaste ned? Well, no. They double down, and a ccuse the President of the United States of per

petrating a

fra ud on the world by

havingrele ased a forg ed birth ce rtificate . Not beca use this claim is in any

way based on rea lity , but to hold their terribly g ullible audience captive to their lies, and to sell books. This is despicable, a nd deser ves only ridicule. That’s why we c ommitt ed satire in the matter of the Corsi book. Hell, even the -6-president ha s a sense of humor about it all. Some more ser ious reporting from us on this whole “birthe r” phe nomenon her e, her e, and he re. Id. (boldfac e and italics in orig inal).

About an hour later whe n contac ted about the B log Post by the Daily Caller , Mark Warren opine d that Dr. Corsi is “an e x ecr able piec e of shit.” Id., Ex . 28 (dailycaller .com post May 18, 2011 at 12:06 p.m.) (“T he Esquire story , written by Mark Warr en, spre ad ac ross the Interne t moments after be ing poste d on the mag azine’s website Wedne sday morning . Esquire has said it was a

joke and Warr en told [t he Daily Caller ] he has no regrets about postingit.”). At the same time, the Daily Caller also contac ted Mr. F ara

h, who said that he ha d never spoken to anyone fr om Esquire and “ [n] ever uttered the se words or

any thing r emotely

rese mbling them to anyone. It is a complete fa brication. The book is selling briskly . I am 100 per cent be hind it.” Id. Mr. Fa

rah a lso told t he Daily Caller that he wa s considering“leg al options” but he “assume[d] it [was] a ver y poorly executed par ody .” Id. 6 That eve ning, at 9:24 p.m., WND posted its own story : “Fa rah: Major

media fooled, leg al options considere d ‘You think I ’m g onna pull a best-se lling book off the shelves? ’” Id. , Ex . 43 (WND.com post May 18, 2011 at 9:24 p.m.). WND included a tra nscript of Mr. Fa rah’ s interview on WOR News Ta lk Radio 710 HD – The Steve Ma lzberg Show: I g ot calls from a ll the top editors at all of the bignews a g encie s acr oss this country

today all askingthe same que stion y ou know for a comment on this development, and I ’m g oin like “Wha – are y ou g uy s serious? You know – You think I ’m g onna pull a best-se lling book off the shelves? (laug hing) What’s the matter with you? ” Esquire.c om, like Esquire mag azine, has a history of satire and humor re g arding 6 national issues and public figures. See, e .g. , Findiky an De cl., Ex. 36 (esquire.com post May 19, 2010, “Exclusive: Ber

nie Ker ik’s Prison To-Do L ist L eake d!”) ; id ., Ex . 38 (esquire .com post May 9, 2011, “B in L aden H ome-Vide o L eak Continues with Osama ’s DVR”)
. -7-Id . Twenty -four hours later , at 9:25 p.m. on May 19, 2011, WND.com posted a story headlined, “F ara h vows to sue Esquire, ‘ take owne rship’ WND editor say s he will ag g ressively pursue lawsuit for ‘libelous smea r.’” Id. Ex . 44 (WND.com post May 19, 2011). Plaintiffs announce d their lawsuit at a pr ess conf ere nce on June 28, 2011. They seek more than $100 million i n actua l and compensatory damag es and more than $20 million i n punitive damag es. The Complaint alleg es def amation (Count I ), fa lse light invasion of pr ivacy (Count I I ), tortious interfe renc e with business relations (Count I I I ), violations under the L anham Act, 15 U.S.C. § 1125(a) (1) ( Count I V), a nd misappropriation invasion of priva cy (Count V). Def endants move to dismiss. 7 II. ST ANDAR D OF REVIEW A motion to dis miss for failure to state a c laim pursuant to Fe dera l Rule of Civil Procedur e 12(b) (6) c halleng es the a dequac y of a c omplaint on its fac e. F ed. R. Civ. P. 12(b)(6). A complaint must be sufficie nt “to g ive a de fenda nt fair notice of what the . . . claim is and the g rounds upon which it re sts.” Bell Atl. Corp. v. Tw ombly , 550 U.S. 544, 555 (2007) (inter nal citations omitt ed). A lthough a complaint does not nee d detailed f actua l alleg ations, a plaintiff’s obligation to provide the g rounds of his entitlement to relief “re quires more than labels a nd conclusions, and a

formulaic r ecitation of the elements of a cause of ac tion will not do.” Id. To survive a motion to dismiss , a complaint must contain suffic ient fac tual matter, a ccepted as true , to state a c laim for re lief that is “plausible on its fac e.” Twombly , 550 U.S. at 570. A cour t must treat the complaint’s fa ctual alleg ations as true, “ even if doubtful in fact.” Twombly , 550 U.S. at Pursuant to D.C. Code § 16-5503(c) (1), the Court grante d Def endants’ motion to stay 7 discovery pendinga dec ision on their motion t o dismiss
. SeeMinute Order filed Jan. 30, 2012. -8-555. But a court ne ed not ac cept a s true leg al conc lusions set forth in a complaint. Ashcroft v. Iqbal , 560 U.S. 662, 678 (2009). In decidinga motion under Rule 12(b) (6), a court may

consider the fa cts alleg ed in the complaint, docume nts attache d to the complaint as exhibit s or incorpora ted by ref ere nce, a nd matters about whic h the cour t may take judicial notice
. Abhe & Svoboda, Inc . v. Chao , 508 F.3d 1052, 1059 ( D.C. Cir. 2007).

Fe dera l Rule of Evidence 201 provides that a c ourt may judicially notice a f act that is not subject to “rea sonable dispute bec ause it (1) is ge nera lly known within the trial court’ s territoria l jurisdiction; or (2) ca n be ac curately

and re adily

deter mined from sourc es whose
acc urac y cannot r easona

bly be questioned.” Fe d. R. Evid. 201(b). A cour t may take judicial notice at a

ny stag e in a c ase. F ed. R. Evid. 201(d). Spec ifically , a cour t may take judicial notice of historical, political, or statistical fa cts, or any other fa cts that are verifia ble with cer

tainty
. Mintz v. FDIC , 729 F. Supp. 2d 276, 278 n.2 (D.D .C. 2010). The matter to be noticed must be rele vant. See W

hiting v. AARP , 637 F.3d 355, 364 ( D.C. Cir. 2011). In moving to dismiss, Def endants pre sented va

rious Interne t postings. The Court take s judicial notice of those items. Def endants re ly

on these doc uments not for their truth, but mere ly to show that those statements
wer e made . The fa ct that these Interne t postings wer e made and their written content is not disputed in this case. III. ANALYSIS

Plaintiffs’ fede ral law

claim under

the L anham Ac t must be dismi ssed bec ause the L anham Ac t only

applies to commerc ial speec h, not to satirical non-c ommercia l speec h. 8
The Court has f

eder al question jurisdiction over Plaintiffs’ L anham Ac t claim, see28 8 U.S.C. § 1331 and supplemental jurisdiction over Plaintiffs’ c ommon law claims. See28 U.S.C. § 1367. -9-Fur

ther, Plaintiffs’ c ommon law claims must be dismiss ed bec ause the y are barr ed by

the D.C. Anti-SL APP Act, which protec ts speech r elatingto issues of public interest such a s qualifications for public of

fice , and due to f

ailure to state a

claim. Satire such as the B log Post is protecte d

9 speec h under the First Amendme nt.

A. D.C. Anti-SLAP P Act The D.C. Anti-SL APP (“strateg ic lawsuits ag ainst public participation”) Act, D.C. Code § 16-5501 et seq. , was a dopted in 2010. The Ac t “incorpor ates substantive rig hts with reg ard to a

defe ndant’s ability

to fend off

lawsuits filed by

one side of a

political or public policy debate aimed to punish the opponent or pr event the e x pression of opposingpoints of view.” Sherrod v. Bre itbart , Civil No. 11-477(RJL ), 2012 WL506729, *1 (D.D.C. F eb. 15, 2012) (citingRep. of the D.C. Comm. on Publi c Safe ty and the Judiciary

on Bill 18-893 (N ov. 19, 2010) (“ Comm. R eport” ) at 4). T his is jus t such a suit.

The D.C. Anti-SL APP Act intentionally follows “the lea d of other jur isdictions, which have simil arly

extended absolute or qua lified immunit y to individuals enga g ed in protec ted ac tions.” Comm. R ep. at 4. In order to ext end such immunity , the Act a llows defe ndants to file a motion to dismi ss any claim “a rising f rom an a ct in further ance of the rig ht of advoca cy on issues of public intere st.” D.C. Code § 16-5502(a ). The D .C. Anti-SL APP Act
The Supreme Court has define d “satire ” as f ollows: 9 Satire has be en def ined as a work “ in which pre valent follies or vices a re a ssailed with ridicule,” 14 Oxford Eng lish Dictionary , [500 (2d ed. 1989], or are “ attacke d throug h irony , derision, or wit,” Amer ican He ritag e Dictionar y [1604 (3d ed. 1992)]. Campbell v. Acuff-RoseMusic, Inc

. , 510 U.S. 569, 581 n.15 (1994). -10-provides that “[i]f a party filing a specia l motion t o dismiss under this sec tion makes a prima fac ie showingthat the claim at issue a rises fr om an ac t in furthera nce of the rig ht of advoc acy

on issues of public intere st, then the motion shall be gr anted unless the r espondingparty demonstrates that the claim is likely to succe ed on the mer its.” Id . § 16-5502(b) . Def endants have f iled a motion to dism iss because Plaintiffs’ claims are an attac k on the B log Post, an “ act in further ance of the rig ht of advoc acy on issues of public intere st.” Id. 1 0 The Ac t is broad; it applies to claims based on a ny written or or al statement made : (i) In connec tion with an issue under c onsideration or r eview by a leg islative, executive, or judicial body , or any other off icial proc eedingauthorized by law; or (ii) In a plac e open to the public or a public for

um in connection with an issue of public interest. Id. § 16-5501(1) (A). I

t applies to “[a]ny

other e x pression or e x pressive c onduct that involves petitioning the g overnme nt or communicatingviews to members of the public in connec tion with an issue of public inter est.” Id. § 16-5501(1) (B ). An “ issue of public intere st” is one “r elated to health or sa fety ; environmental, e conomic, or c ommunity well-be ing; the D istrict gove rnment; a public fig ure; or a

g ood, product, or se rvice in the marke t place . . . [but] s hall not be construe d to

Plaintiffs assert that the Anti-SLAPP Act is procedur al and thus inapplica ble her e 1 0 beca use fe dera l courts must apply fede ral proc edura l laws. See E rie v. Tompkins , 304 U.S. 64 (1938) ( fede ral c ourts sitti ng in diversity must apply

state substantive laws a

nd fede ral proc edura l laws); see also 3M Co. v. Boulter , Civil No. 11-1527(RL W), 2012 W L386488 (D.D.C. F eb. 2, 2012) (f inding Anti-SLAPP procedure inapplicable in f eder al cour

t). Other c ourts have disag ree d. See, e .g ., Godin v. Sche ncks , 629 F.3d 79, 81 ( 1st Cir. 2010); Henry v. Lake Charles Am. Press, LLC , 566 F.3d 164 ( 5th Cir. 2009); U.S. ex rel. Newsham v. Lockhe ed Missiles & Space Co ., 190 F.3d 963 ( 9th Cir. 1999); Sherrod v. Bre itbart , Civil No. 11-477(RJL ), 2012 WL 506729, *1 (D.D.C. F eb. 15, 2012) ( D.C. Anti-SL APP Act “is substantive – or at the ve ry least, has substantive conse quence s” and thus is applica ble in fede ral c ourt). The Court finds this l atter view per suasive. It was ce rtainly the intent of the D.C. Council and the e ffe ct of the la w – dismiss al on the mer its – to have substantive conseque nces. -11-include private intere sts, such as statements dire cted pr imarily toward pr otectingthe spea ker’ s
commerc ial interests rather than towa rd commentingon or shar ing inf ormation about a matter of public signific ance .” Id. § 16-5501(3)
.

Anti-SL APP laws elsewher e have been a pplied to bar e ach of

Plaintiffs’ common law cla ims. See, e .g., Gardner v. M artino, 563 F.3d 981, 983 ( 9th Cir. 2009) (af firming dismiss al of de famation, false lig ht invasion of privac y , intentional interfer ence with economic relations, and intentional interfer ence with prospective e conomic adva ntag e cla ims under Ore g on’s anti-SL APP st atute); Mefford v. Came ron Park Cmty. Serv s. Dist. , Civil No. 2:09-cv02992, 2010 WL2816877 (E.D. Cal. July 16, 2010) (dismissing fa lse light invasion of pr ivacy and def amation under

California’s a

nti-SL APP st atute). The B log Post containe d an expression of views that communicated to member s of the public in conne ction with an issue of public intere st, i.e. , the dispute over whether President Obama

qualifies by

birthrig ht to be President of the United States. Havingbecome such we ll-known proponents of one position on t he issue, Plaintiffs ca nnot complain that the very intensity of their a dvocac y

also bec ame pa

rt of the public de bate. Those who speak with loud voices ca

nnot be surprised if

they become part of the story
. Plaintiffs resist this conclusion by arguing f irst that the BlogPost di d not focus on an issue of public c oncer

n. Rather, they

contend, the substanc e under lying this lawsuit is Def endants’ de sire to har

m Plainti ffs’ r eputations and c ommercia l interests. They argue that the defa matory speec h in the BlogPost concerne d the business aspec t of the Corsi Book, that is, statements that Plaintiffs planned to re call and pulp the e ntire 200,000-volume f irst run printing. They asser t that the commentar

y reg ardingPresident Obama only lurks in the background to the
-12-thrust of the B log Post, and that the B log Post was r eally an attac k on Plaintiffs themselves and the Corsi Book.

Plaintiffs’ analy sis overlooks the content of the Corsi Book a

nd Plaintiffs’
ener g etic ef

forts to promote it. The Corsi B ook advanc es Plaintiffs’ ar g ument that President Obama c annot satisfy

a constitutional require ment and thus is ineligible to be pr esident; this constitutes a statement on a matter of public inter est. Commentary on the Corsi Book — its
acc urac y , its thesis, and its value — likewise constitutes a statement on a matter of public interest. The BlogPost focused spec ifically on the controve rsy

stoked by

Plaintiffs’ claims and enhanc ed by

publication of the Corsi B ook, that the President may be for eig n-born a

nd thus barr ed fr om servingas pre sident.

About an hour a fter e squire.com issued the B log Post, Mr. F ara h told the Daily Caller that the B log Post was “ a ver y poorly executed par ody .” F indiky an De cl., Ex. 28 (dailycaller .com post May 18, 2011 at 12:06 p.m.). In other wor ds, Plainti ffs immediately
rec og nized the satiric nature of the B log Post. Mr. F ara h also took to the radio air wave s immediately

following the B log Post to mock those who aske d him for comment, say ing, “ are y ou g uy s serious? . . . You think I ’m g onna pull a best-se lling book off the shelves? ” Id ., Ex . 43 (WND.com post May

18, 2011 at 9:24 p.m.). Be cause later it bec ame inconve nient to treat the BlogPost as satire ca

nnot era se Plaintiffs’ own c ontemporane ous admission that it was so intended. Political satire ca n be, and of

ten is, uncomforta

ble to its targ ets, but that does not rende r it any

less satiric or a

ny less an expression on a topic of public c oncer n. The c ontroversy surroundingPresident Obama ’s birthplace rea ched suc h a cr esce ndo prior to the re lease of his long- form birth ce rtificate that it was dubbed the B irther Move ment. That Movement ha d, and
-13-appar ently continues to have , some committed proponents. Plaintiffs themselves played leade rship roles in the B irther Move ment, contributing hundreds of article s questioning the leg itimacy

of the Oba

ma Presidenc y

and enthusiastica lly

adver tising the Corsi B ook. The B log Post itself bore indicia of its satiric nature . The pa g e wa s tag g ed as “humor.” Findiky an De cl., Ex. 27 (esquire.com Politics Blogpost May 18, 2011 at 10:50 a.m.). The B log Post started w ith an exagg erated hea dline announcingin bold print “Br eaking : J erome Corsi’s Birthe r B ook Pulled From Shelves!” Id . Real new s does not usually contain an exclamation point and would not be repor ted on an opinion pag e. F urther, the headline w as
acc ompanied by

a log o of a sire n, a sy

mbol used by

conser vative Matt Drudg e whe n commenting
on curr ent news to his re ader s. Id . The text asserted that Me ssrs. Corsi and Fa rah a nnounced “plans to re call and pulp the e ntire 200,000 first printingrun of the book” Id. The re fer ence to a first run printingof “200,000 books” is an exag g erated number f or a f irst printing. Also, the BlogPost refer s to a fake book, alleg ed to be a uthored by

Mr. Fa rah, c alled “Ca

pricorn O ne: NASA, J FK, a

nd the Gre at ‘Moon L anding ’ Cover- Up

. ” Id. The book title alludes to “Capric orn One ,” a 1978 movie sta rringO.J . Simps on and other s about a g overnme nt Mars landing hoax. Finally , the B log Post includes absur d quotes, such as Mr . Fa rah’ s alleg ed statement about his own B irther Move ment views that “bullshit is bull shit.” Id . These c lues
reve al that the B log Post was satire; Mr. F ara h immediately

rec og nized that it was. This suit fits entirely

within the scope of § 16- 5501(1)( A) of the D.C. AntiSL APP Act, as it conce rns a “ written or or al statement” made in a “ place open to the public or a public forum in conne ction with an issue of public intere st.” D.C. Code § 16-5501(1) (A). T his suit also comes within § 16-5501(1)( B) , as the De fenda nts’ speec h was “ expression” involving
-14-“communicating view s to members of the public in c onnection with an issue of public interest.” Id. § 16-5501(1) (B ). B eca use this suit arises from De fenda nts’ speec h on matters of public interest, the suit must be dismiss ed under the D.C. Anti-SL APP Act. Plaintiffs contend that the B log Post was a n attack on Plaintiffs’ c ommercia l interests and thus that the spe ech f alls within the commercia l speec h exception in the Act. Plaintiffs assert that WorldNetDa ily .com is a commer cial compe titor to Hearst Communications, that Def endants’ statements wer e dire cted towa rd injuring Plaintiffs’ commerc ial interests, and thus that the Act does not apply
. The text of the BlogPost belies this asser tion. The targ et of 1 1 the B log Post’s satiric c ommentary was the Corsi B ook, and Mr. F ara h (as publisher) and Dr
. 1 2 Corsi (as author) wer e name d in connec tion to the Corsi Book. There can be no doubt that the Corsi Book wa s a topic of public inter est. I t continued the ar g ument that the President is not a natura l-born Amer ican a

nd is unqualified for of

fice
. SeeFindiky an De cl., Ex. 26 (WND.com post May 17, 2011) (“ The book . . . prove s Obama’ s ineligible.” ). In response , the B log Post first mentioned the Corsi Book e x plicitly and then poke d fun at it, sug g esting that Mr. Fa rah ha d
announce d plans “to re call and pulp the e ntire 200,000 first printingrun of the book, a s well as announcingan off

er to re fund the purc hase pr ice . . . .” Id ., Ex . 27 (esquire .com post May 18,

Havingcontinually

thrust itself into the public lim elig ht in the debate ove r the 1 1 President’s cr edentials, it would not be unre asonable to conclude tha t the cre dentials of Plaintiffs may be par t of the story . The Court does not dec ide this point as it i s unnece ssary to this Opinion. Plaintiffs conce de that the r eleva nt aspec t of WND at issue here is the Corsi Book, as 1 2 they aver that the foc us of the B log Post was “ the commer cial aspe ct” of Plaintiffs’ book, “that the books wer e beingrec alled (spe cifica lly 200,000 first run prints), that the a uthor and publisher wer e re fundingthe purc hase pr ice to all buy ers of the book, and that bookstore s were pulling the books from their she lves.” Opp. at 2. -15-2011 at 10:50 a.m.). The commerc ial speec h exception in the Act applies to spee ch that is

“dire cted pr imarily

toward pr otectingthe speaker’ s commerc ial interests rather than towa rd commenting on or shar ing inf ormation about a matter of public sig nificanc e.” D .C. Code § 16- 5501(3). The BlogPost cannot be construe d as spee ch dire cted towa rd protec ting De fenda

nts’
commerc ial interests. I t was satirica l comment on an issue of public c oncer n. Be cause Def endants have made a prima f acie showing that the common law c laims at issue here arose from spee ch in furthe ranc e of the rig ht of advoc acy on issues of public intere st and bec ause Plaintiffs have fa iled to demonstrate that their claims are likely

to succe ed on the mer its, Def endants motion to dismi ss under the D .C. Anti-SL APP will be g rante d.

B. Failure t o State a Claim The rationale that applies to the motion to dismi ss under the D .C. Anti-SL APP Act also a pplies to Defe ndants’ motion to dism iss for due to fa ilure to state a c laim. Be cause Def endants’ spe ech is prote cted by the Fir st Amendment, Plaintiffs cannot pursue their common law cla ims based on such spee ch.

Plaintiffs assert a c laim for def amation. A def

endant, howe ver, ma

y esca pe liability for de famation if the speec h is protected unde r the F irst Amendment. See W hite v. Fraternal Order of Police , 909 F.2d 512, 523 ( D.C. Cir. 1990). “[S] peec h on public issues occupie s the hig hest rungof the hier arc hy of F irst Amendment values, a nd is entitled to special protec tion.” Connick v. M yers , 461 U.S. 138, 145 (1983) (inter nal quotation marks omitted). Fur ther, the F irst Amendment protec ts satire. See, e .g., Hustler Magazine, Inc . v. Falwell , 485 U.S. 46, 53 (1988) (a

claim of intentional infliction of emotional distress base d on the publication of a pa

rody was ba rre d by the Fir st Amendment). As e x plained above , the B log Post
-16-was satire on a matter of public conc ern. Such spe ech is prote cted by the Fir st Amendment and cannot be the basis of a

defa mation claim. The same constitutional li mitations apply to the claims of fa lse light invasion of privac y as to a c laim for def

amation. W

eyric h v. New Republic, I nc. , 235 F.3d 617, 628 ( D.C. Cir. 2001); Lane v. Random H ouse, Inc ., 985 F. Supp. 141, 148 (D.D .C. 1995). Simi larly , the First Amendme nt provides a pr ivilege ag ainst a misappropriation invasion of privacy claim, permitting “ the use of a

plaintiff’s name or likeness whe n that use is made in the c ontext of, and
rea sonably

relates to, a publication conc erninga matter that is newsworthy

or of leg itimate public
conce rn.” Rayme n v. United Se nior Ass’n, Inc ., 409 F. Supp. 2d 15, 22-23 (D .D.C. 2006). L ikewise, the Plaintiffs’ c laim for tortious interfe renc e fa ils because it is grounde d in the same nonactionable claim for de famation. See Zandford v. Nat’l Ass’n of Sec . Dealers , 19 F. Supp. 2d 1, 3-4 (D.D .C. 1998) (whe re the court found no prima fac ie showingof def amation, there could be no showingthat such alleg ed def amation interfe red w ith business relationships); see also Christ akis v. Mark

Burnett Productions , Civil No. 08-6864, 2009 WL1248947, *5 (C.D. Cal. Apr. 27, 2009) ( First Amendme nt limi tations “apply to all claims whose g rava men is the alleg ed injurious falsehood.”)
.

All of Plaintiffs’ common law c laims are ba sed on the same underly ing alleg ations reg ardingthe B log Post. Be cause the B log Post is satire on a matter of public inter est that is protected by

the Fir st Amendment, Plaintiffs’ common law c laims of defa mation (Count I ), fa lse light invasion of pr ivacy (Count I I ), tortious interfe renc e with business rela tions (Count I I I ), and misappr opriation invasion of privac y (Count V) will be dismissed.

-17-C. Lanh am Act Count I V of the Complaint alleg es a violation of the L anham Ac t, which provides in pertinent par

t: (1) Any person who, on or

in connec tion with any

g oods or servic es, or any container for g oods, uses in commerc e any word, ter m, name, sy mbol, or device , or any

combination there of, or a ny false de signation of orig in, false or

misleading descr iption of fact, or false or misleading repr esentation of fac t, which – (A) is likely

to cause confusion, or to c ause mistake, or to dece ive as to the af

filiation, connec tion, or association of suc h person with another pe rson, or a s to the orig in, sponsorship, or approva l of his or her

g oods, service s, or commer cial ac tiviti es by another person, or (B ) in commerc ial adver

tising or pr omotion, mi srepr esents the nature , char acte ristics, qualities, or g eog raphic orig in of his or her or anothe r per son’s g oods, service s, or commer cial ac tiviti es, shall be liable in a c ivil action by any person who be lieves that he or she is or is likely

to be damag ed by

such ac t. 15 U.S.C. § 1125(a)(1)
.

Plaintiffs assert that: Def endants . . . c aused c onfusion, mistake and de ception through their publication of fa lse and misleadinginformation and de scription of fa ct which include but a

re not limited to the acc urac y , motives, nature, char acte ristics, and qualities of the subjec t book, on their Interne t adver tising and r eportingsites . . . . Compl. ¶ 32. Pl aintiffs base this claim on alleg ations that Plainti ffs a nd Def endants a re
commerc ial competitors, id . ¶ 31; the B log Post ca used public conf

usion as to the acc urac y

of the Corsi Book, id. ¶ 32; it attributed false statements to Plainti ffs, id. ¶ 12; and it damag ed Plaintiffs’ reputation, credibility , and anticipated succ ess. Id.

Every circ uit that has addre ssed the issue has f ound that the L anham Ac t restricts -18-only

commerc ial speec h, as commer cial spee ch is entitled to reduc ed prote ction under the First Amendment. See O

smose, Inc . v. Viance

, LLC , 612 F.3d 1298, 1322- 23 (11th Cir. 2010); Utah Lighthous e Ministry v. Found. for Apologetic I nfo. & Researc h , 527 F.3d 1045, 1051- 52 (10th Cir. 2008); Bosley M

ed. Inst., Inc . v. Kreme r , 403 F.3d 672, 677 ( 9th Cir. 2005); Podiatrist Ass’n, Inc . v. La Cruz Azul de Puerto Rico, Inc

. , 332 F.3d 6, 19 ( 1st Cir. 2003); Boule v. H utton , 328 F.3d 84, 90 ( 2d Cir. 2003); Taubman Co. v. W ebfeats , 319 F.3d 770, 774 ( 6th Cir. 2003); First Health Grp. Corp. v. BCE Emergis Corp. , 269 F.3d 800, 803 ( 7th Cir. 2001); Porous Media Corp. v. Pall Corp. , 173 F.3d 1109, 1120 ( 8th Cir. 1999); Seve n-Up Co. v. Coca- Cola Co. , 86 F.3d 1379, 1384 ( 5th Cir. 1996). 1 3

Whil e the F irst Amendment does not protec t a competitor who la bels his
commerc ial g ood with a conf usingly simil ar ma

rk, such “ trade mark rights do not entitl e the
owner to quash an una

uthorized use of the mar

k by another who is communicatingideas or expressing points of view .” Bosley , 403 F.3d a t 677. Here , Def

endants re fer

red to the Corsi Book in the B log Post, which wa s satirical spee ch on a matter of public inter est and not
commerc ial speec h. The B log Post containe d an expression of views r eg ardingthe dispute over whether President Obama

qualifies by

birthrig ht to be President of the United States. Be cause the expression cannot be char acte rized as commer cial spee ch, the L anham Ac t does not apply and Count I V will be dismissed. IV. CONCLUSION

Acc ording ly , Def

endants’ motion to dismiss [Dkt. 4] will be g rante d, and the
The D.C. Circuirt a

nd the Four

th Circuit have not addr essed the issue. See Lamparello 1 3 v. Falwell , 420 F.3d 309 ( 4th Cir. 2005) (dec lining to re solve the question bec ause the claims asser ted fa iled on their merits). -19-Complaint wil l be dismissed. A memorializing Orde r ac companies this Memora ndum Opinion.
Date: June 4, 2012 /s/ ROSEMARY M. COL L YER United States District J udg e

-20-