Rep. Nunes Wins Major Victory In Defamation Case Against Ryan Lizza and Hearst

We have been following a slew of defamation lawsuits by political figures over the last few years. (See, e.g., here and here and here and here and here and here and here and here). For torts scholars, it has been a bonanza of interesting issues touching on every element of defamation law. There is now an important ruling out of the United States Court of Appeals for the Eighth Circuit that could have enormous implications not just for the media but anyone who retweets stories or claims. The appellate panel ruled unanimously for Rep. Devin Nunes against journalist Ryan Lizza who now writes for Politico. Nunes will be allowed to litigate his claim that Lizza defamed him by claiming that he secretly moved his farm from California to Iowa and linked the move to the alleged use of undocumented labor. Not only does Nunes have no reported stake or operational involvement with the farm, there is no evidence of his effort to hide the move or conceal any use of undocumented laborers. However, the interesting aspect of the ruling is how a retweet by Lizza resuscitated the case for Nunes.

In 2019, Nunes sued Lizza and Hearst Magazines after Lizza wrote a feature article entitled “Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret,” in Esquire. Lizza asked in the article “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?” The “explosive secret” appeared to be his moving the family dairy farm to Iowa from his district and the suggestion that the farm was using undocumented labor.

The claims, if false, could be the basis for defamation. A separate lawsuit against Lizza and Hearst by the family farm, NuStar, was previously found valid for the purposes of a trial. The issue was the separate Nunes complaint and federal judge C.J. Williams rejected his claims because “[m]oving 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.”

The appellate panel agreed that there was no express defamatory statement in the article. However, it found that a reasonable jury could find it defamatory by implication. As such, the statements do no need to be individually defamatory if they leave a defamatory meaning in the juxtaposing of fact or omitting facts. The court ruled that “[b]ased on the article’s presentation of facts, we think the complaint plausibly alleges that a reasonable reader could draw the implication that Representative Nunes conspired to hide the farm’s use of undocumented labor.”

The problem for Nunes is that he is a public official. The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. This is precisely the environment in which the opinion was written. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. As such, public officials and public figures must show either actual knowledge of its falsity or a reckless disregard of the truth.

Notably, Nunes sought to challenge New York Times v. Sullivan, which a lower court could not set aside. Presumably, he will seek an eventual Supreme Court review to achieve that purpose.  However, the appellate court is bound to follow the precedent and held “[u]nder that demanding standard, we agree with the district court that the complaint is insufficient to state a claim of actual malice as to the original publication.”

That is when the case took a very interesting turn.  The Court found that Lizza later retweeting and linking to his story created a viable basis for defamation. Under the “single publication” rule any one edition of a book or newspaper, even if distributed in thousands of copies, constitutes one publication that may support only one cause of action. Restatement (Second) of Torts § 577A(3) (Am. L. Inst. 1977). However, there can be liability for a “republication.”

That is what the court found Lizza did when he later retweeted the publication. Notably, this was not just a retweet but a retweet with a new comment and link. That makes it a bit different from the typical single publication case. Effectively, Lizza renewed and added to his prior comments in the view of the court.

On November 20, 2019, Lizza tweeted: “I noticed that Devin Nunes is in the news. If you’re interested in a strange tale about Nunes, small-town Iowa, the complexities of immigration policy, a few car chases, and lots of cows, I’ve got a story for you.” That, according to the panel, tripped the wire by showing actual malice since he was now aware of the denials of involvement in the farm:

“The complaint here adequately alleges that Lizza intended to reach and actually reached a new audience by publishing a tweet about Nunes and a link to the article. In November 2019, Lizza was on notice of the article’s alleged defamatory implication by virtue of this lawsuit. The complaint alleges that he then consciously presented the material to a new audience by encouraging readers to peruse his “strange tale” about “immigration policy,” and promoting that “I’ve got a story for you.” Under those circumstances, the complaint sufficiently alleges that Lizza republished the article after he knew that the Congressman denied knowledge of undocumented labor on the farm or participation in any conspiracy to hide it.”

It is important to keep in mind that the “actual malice” standard can be shown by either making knowingly false statements or showing a reckless disregard for the truth.  The irresistible impulse to strike out at Nunes may prove extremely costly for Lizza.

The panel held:

“Lizza tweeted the article in November 2019 after Nunes filed this lawsuit and denied the article’s implication. The pleaded facts are suggestive enough to render it plausible that Lizza, at that point, engaged in “the purposeful avoidance of the truth.” Harte-Hanks, 491 U.S. at 692.”

This could present a major new precedent if it is appealed to the Supreme Court. First, it could allow the Court to review New York Times v. Sullivan given the questions raised by some justices recently about the case. Second, even if Sullivan is safe, it could expand possible liability by treating social media links and retweets as republications.

We have been discussing the rise of advocacy journalism and the rejection of objectivity in journalism schools. This ruling could present a serious push back on advocacy journalism where the line between fact and opinion is becoming increasingly blurry.

Here is the decision: Nunes opinion

78 thoughts on “Rep. Nunes Wins Major Victory In Defamation Case Against Ryan Lizza and Hearst”

  1. If a case come before SCOTUS that challenges the Sullivan precedent, the easiest line of attack will be the Warren Court’s invention of “a public person” (nowhere to be found defined in Federal Law), and that Court’s diminution of defamation-deterrence rights for such a confabulated sub-population. This was a clear violation of the 14th Amendment’s guarantee of equal rights under the law. If the “public person” doctrine can be repealed, and all people once again get to enjoy defamation deterrence via torts, then Sullivan will effectively be reversed.

    The Nicholas Sandman case serves as a great example of how order and civility might be re-instated, and deceitful infowarfare rolled back, after Sullivan is overturned.

  2. OT, but speaking of lawsuits by politicians …

    “Former President Donald Trump has filed a lawsuit against The New York Times, three of its reporters, and his niece—claiming they hatched an “insidious plot” to obtain his private records for a story about his tax history. The lawsuit alleges that the newspaper convinced Mary Trump to “smuggle records out of her attorney’s office and turn them over to the Times” despite a confidentiality agreement she signed in 2001 while settling a legal battle over the will of Frederick Trump, Donald’s father and Mary’s grandfather. … “I think he is a f***ing loser, and he is going to throw anything against the wall he can,” said Mary Trump of her uncle’s new suit. “It’s desperation. The walls are closing in and he is throwing anything against the wall that will stick. As is always the case with Donald, he’ll try and change the subject.””
    https://www.thedailybeast.com/donald-trump-sues-new-york-times-and-his-niece-mary-trump-over-tax-story

    1. For a court to allow the continuance of a case is no laughing mater. You might ask those being litigated against if they are taking it seriously. skippingdog57 just might be skipping past the grave yard in his assessment of the situation.

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