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Opinion A scary court victory for Devin Nunes

Rep. Devin Nunes (R-Calif.) on Capitol Hill in May. (Jabin Botsford/The Washington Post)

Countless journalists and other professionals have ruined their livelihoods via errant tweets. Never tweet, the saying goes.

Now, courtesy of the U.S. Court of Appeals for the 8th Circuit, comes a baffling new warning for social media types: Be careful about what you may be “republishing”!

The backdrop: In 2019, Rep. Devin Nunes decided to file a bunch of lawsuits — one of them against journalist Ryan Lizza (now with Politico) and Hearst Magazines. “Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret,” read the headline of the Lizza feature in Esquire. That alleged “secret,” according to the piece, was that the congressman’s family had moved its dairy farm from California, where Nunes’s district is located, to Iowa. Though Nunes has no involvement or stake in the farm, Lizza wrote that the "family dairy has been central to his identity and a feature of every major political profile written about him.” Lizza also claimed that the family farm has relied on undocumented labor. (Disclosure: Nunes has filed two lawsuits against The Post.)

Here’s an example of a Lizza passage that irked Nunes: "Why would the Nuneses, Steve King, and an obscure dairy publication all conspire to hide the fact that the congressman’s family sold its farm and moved to Iowa?” (King was a Republican Iowa congressman at the time of the Esquire story.)

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Iowa federal judge C.J. Williams looked over Nunes’s claims and tossed them in August 2020, writing that none of the allegedly problematic statements in the Lizza story “plausibly support a defamation claim." (A separate complaint against Lizza and Hearst from the Nunes family farm, NuStar, has been allowed to move forward. That suit challenged the article’s claims about undocumented workers at the farm.) The ruling was particularly pointed in regard to the article’s discussion of the dairy’s move from California to Iowa: “Moving or concealing a move is not a crime. Because the object of the ‘conspiracy’ is harmless, no reasonable reader could interpret the term ‘conspiracy’ to imply criminal conduct in this context,” noted Williams.

Nunes appealed the dismissal and scored a partial victory in a Wednesday ruling by three Republican-appointed judges: Steven Colloton, Lavenski Smith and Ralph Erickson. The 15-page document lays out an abstruse set of findings:

  • The appeals court ruled that the Esquire article contained no expressly defamatory statements, a finding consistent with Williams’s’ initial ruling.
  • However, the appeals court found that at the same time, the Esquire article presented what’s known in legal circles as “defamation by implication,” which is to say that statements that were expressly true nevertheless may have conveyed a false and damaging gist. The court held that in the case of Lizza’s story, that gist is that Nunes’s secret isn’t just the move from California to Iowa, but that Nunes “conspired to hide the farm’s use of undocumented labor.” On that front, the Nunes complaint advances a “plausible claim,” according to the appeals ruling.
  • But as a member of Congress, Nunes qualifies in a court of law as a “public figure,” meaning that in order to prove defamation, he needs to establish that a media outlet either knew it was publishing falsehoods or proceeded with “reckless disregard” of their truth or falsity (a.k.a. the “actual malice” standard). The appeals court ruled that Nunes fell short on that front.

So the whole thing is toast, right? Nope, and this is where Twitter enters the frame. Less than two months after Nunes sued Hearst and Lizza, he used a congressional hearing to attack media coverage of President Trump. Lizza hopped on Twitter:

There doesn’t appear to be anything objectionable about the tweet — just a journalist trying to get some more rotation for his stuff. But the appeals court appears to consider the story link in the tweet as a new “republication” of the article, even though other courts have ruled that just linking to a long-standing story doesn’t constitute “republication.”

Why is the alleged “republication” problematic? Because when Lizza posted that tweet, reasons the appeals court, he had already been sued and therefore “knew that the Congressman denied knowledge of undocumented labor on the farm or participation in any conspiracy to hide it.”

Lizza’s state of mind is important because that’s what “actual malice” is all about. Public figures such as Nunes must get inside the heads of the journalists from whom they’re pursuing multimillion-dollar damages. And the appeals court concluded that there’s at least enough beef there to send the case for further proceedings. “The pleaded facts are suggestive enough to render it plausible that Lizza ... engaged in ‘the purposeful avoidance of the truth,’” with the tweet, reads the ruling, which was written by Colloton.

First Amendment lawyers scoffed at the ruling. “Until now, the courts have been unanimous that hyperlinks, retweets, and other references to allegedly defamatory articles are not ‘republications.’ The Eighth Circuit departs from this consensus without much, if any, explanation why,” writes Jeffrey Pyle of Prince Lobel Tye LLP in an email. What’s more, says Pyle, the court’s timeline analysis ignores the principle that “[c]ourts judge reckless disregard for the truth at the time of publication."

The court’s thinking is faulty on yet another level, Pyle notes. While the court argues that because Lizza was presented with Nunes’s complaint, he “thereafter harbored subjective doubt about the truth of his article,” Pyle argues the tweet shows that Lizza “lacked any subjective doubt that he got it right.”

After all, why would a lawsuit from Nunes curb Lizza’s confidence in his own reporting? This is the same congressman who, months before Lizza’s tweet, sued a Twitter account named “Devin Nunes’ Cow.”

Ted Boutrous, a First Amendment lawyer with Gibson, Dunn & Crutcher LLP, called the ruling “wrong.” He opined, “Nunes has filed a series of frivolous defamation lawsuits, so the fact that he filed one against Ryan Lizza doesn’t mean that anything in the article was false or that Lizza acted with actual malice by simply tweeting about the article."

The ruling speaks to the sturdy media protections of the “actual malice” standard, which stemmed from the landmark 1964 ruling in New York Times v. Sullivan. As this blog has written, however, plaintiffs in lawsuits against media companies have increasingly sought to trigger a reexamination of the precedent, feeding off of an opinion from Justice Clarence Thomas in February 2019 blasting Sullivan.

That’s precisely what Nunes did in this case. In addressing the congressman’s request to reconsider the U.S. media’s core legal shield, the ruling called “actual malice” a “demanding standard” and declared, “of course we are bound to apply it.” They don’t sound like fans. In the words of Pyle, “they sure worked hard to find a way around it!”