Government

Eighth Circuit Holds RTs = Endorsements In Nunes Defamation Suit

Nice First Amendment you got there. Be a shame if something were to happen to it.

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We’re not linking Ryan Lizza’s Esquire story about Devin Nunes’s family’s farm in Iowa, because we don’t want to get sued. Which is kind of the point of all these garbage defamation complaints against media outlets which are currently clogging the federal docket.

And three judges from the Eighth Circuit just ruled that republishing something once someone tells you it might be false might constitute actual malice and subject you to liability. Prior restraint, FTW!

Lizza, who now helms Politico’s Playbook column, wrote a feature story in September of 2018 revealing that Devin Nunes’s family had sold their farm in California a decade before and decamped to Iowa to milk ’em in the midwest. Nunes, who had been happily wandering around describing his deep agricultural roots in his home state, was not amused. And he was positively pissed off that Lizza went on to quote sources saying that the only way to make money as a dairy farmer in that part of the country was to employ immigrant labor, much of it undocumented.

Nunes and his sparklemagic libelslander lawyer Steven Biss filed this batshit complaint alleging defamation and conspiracy and demanding $75 million to make him whole again.

In August of 2020, US District Judge C. J. Williams dismissed the complaint, finding that it failed to allege statements which were defamatory, and furthermore, even if those statements were defamatory, Nunes failed to prove actual malice consistent with the New York Times v. Sullivan standard.

Nunes made an additional argument that Lizza’s retweet of the story after he’d been sued did constitute actual malice, since the suit itself served to inform Lizza that his own reporting was false. Citing a Second Circuit holding that “[M]ere denials, however vehement . . . are so commonplace in the world of polemical charge and countercharge that, in themselves, they hardly alert the conscientious reporter to the likelihood of error,” the trial court disagreed.

But Nunes appealed to the Eighth Circuit, which he urged to overturn Times v. Sullivan and ditch the actual malice requirement entirely. The Court wasn’t willing to go that far, noting grudgingly that “we are bound to apply it.” But they did Nunes a solid and found that suing Lizza and calling him a liar constituted notice, so that the subsequent tweet of his own original piece might be a reckless act sufficient to constitute actual malice.

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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.

Astute observers will note that this sets the price of bottling up an embarrassing story at $402, the federal filing fee for a civil action. Or perhaps the actual cost of “actual malice” is really zero. Would a tweet saying “Ur wrong” do the trick? How about a gif?

If this holding is not overturned, will every reporter be subject to costly litigation simply because the subject of a story denies it? And how far does the liability extend? Does every person who read the original lawsuit face liability if they “republish,” i.e. RT, the original article?

“The Eighth Circuit’s decision whiffed on several issues and sets a dangerous precedent that weakens important protections against abusive defamation lawsuits that wield the power of courts to stifle discussion on matters of public concern,” Ari Cohn, Free Speech Counsel at TechFreedom, told ATL.

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Noting that “the Single Publication Rule exists to prevent endless liability for a single, widely-distributed writing,” Cohn argues that Lizza’s retweet “simply does not constitute a republication in any meaningful sense.”

He also observed that actual malice is effectively for sale under the Eighth Circuit’s standard.

“This places enormous power in the hands of powerful people who can afford to file baseless lawsuits over criticism and then slip past a motion to dismiss when filing additional lawsuits over the same statements.”

“The need for a federal anti-SLAPP law to combat abuse of the legal system becomes more clear with each passing ruling.”

Nunes v. Lizza [Trial Docket via Court Listener]
Nunes v. Lizza [Eighth Circuit holding]

Elizabeth Dye lives in Baltimore where she writes about law and politics.

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