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