The D.C. Circuit ruled that Esquire's not-very-good effort to make fun of a "birther" book didn't count as libel. Farah v. Esquire Magazine, No. 12-7055 (D.C. Cir. Nov. 26, 2013).

The case dealt with a post on "The Politics Blog" by Esquire writer Mark Warren. The item claimed that President Obama's release of a copy of his long-form birth certificate from the Aloha State had prompted the publisher of Where's the Birth Certificate? The Case that Barack Obama is not Eligible to be President to yank the book from shelves and turn the copies into pulp. The publisher, Joseph Farah, and author, Jerome Corsi, sued Esquire for libel. The district court dismissed the case.

Affirming, the D.C. Circuit noted that the first amendment permits a libel claim only for false and defamatory statements of "actual facts". Farah, slip op. at 11. Satire, the panel pointed out, may purport to state facts but in truth bends or hyperbolizes them. That "reasonable readers would take the fictitious blog post literally" for awhile at least didn't matter. "[I]t is the nature of satire that not everyone 'gets it' immediately." Id. at 14. A headline in The Onion — "Error Found on Internet" — comes to mind.

Nor did the weakness of the effort at humor deprive the post of constitutional protection. "[P]oorly 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 the facts." Id. at 18.

Oddly — or not — Judge Janice Rogers Brown didn't join Judge Judith Rogers's opinion. Judge Brown opted instead to concur in the judgment only without saying why.