Courts

Media Consortium Files Amicus In Appeal Of Batsh*t Nunes Defamation Case

This aggression will not stand, man. We hope.

By Liz Dye on October 21, 2021 4:16 pm

(Photo by Alex Wong/Getty Images)

Yesterday, a coalition of 35 media outlets filed an amicus brief to the Eighth Circuit supporting a requested en banc review of a decision in the long running trench war between reporter Ryan Lizza and Rep. Devin Nunes. Signatories include the New York Times, Pro Publica, BuzzFeed, and the Fox News Network — because adversity makes strange bedfellows, and this ruling was extraordinarily adverse to anyone who believes in the media’s right to report on public figures.

The suit involved a 2018 Esquire article entitled Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret which described Lizza’s adventures in Sibley, Iowa, as he tried to report on the dairy farm run by Rep. Nunes’s family, which filed their own separate but equally lunatic defamation complaint. The trial judge tossed all of Nunes’s claims, but on September 15, Judges Ralph R. Erickson, Steven M. Colloton, and Lavenski R. Smith (C.J.) revived a single count based on a Lizza’s retweet of his own article after the original suit was filed.

The panel held that by filing his original suit, Nunes put Lizza on notice that his own reporting was “wrong.” And the appellate court held that Lizza’s subsequent hyperlink to his own article amounted to a republication, but this time with actual malice sufficient to satisfy the New York Times v. Sullivan standard.

At which point every media outlet in the country freaked out because the appellate court had effectively pegged the cost of bottling up an unflattering story at $402, the federal filing fee. Worse still, simply calling up the paper and saying “Nuh uh!” could subject an outlet to new damages for every “republication” of its own story on Facebook or Twitter.

Hence the love-in between Fox and The New Republic in support of Lizza’s request for en banc review.

“In disseminating the news, journalists rely on a wide and long-standing judicial consensus that providing a reader with a hyperlink to an article does not republish it for purposes of a libel claim,” the amici curiae wrote. “They also rely on long-settled precedent holding that receiving a prepublication denial from the subject of a critical report does not, on its own, establish actual malice in publishing the report.”

The amici cite precedent from the Fourth, Sixth, and even the Eighth Circuit itself finding that a hyperlink does not count as a republication. And, they argue, treating hyperlinks as separate publications “creates conditions under which not only news publishers, but anyone who links to other material, can be liable both for what they say and for what they link to and reference online.”

The news outlets took further issue with the panel’s ruling that filing a lawsuit, much less a mere denial of the story, can put a journalist on notice that his reporting is incorrect.

“Powerful figures routinely threaten or file lawsuits to try to squelch critical reporting. Such an occurrence does not, on its own, warrant the inference that the publisher was thereby led to doubt the accuracy of the challenged reporting, especially where the plaintiff is well known for such tactics,” the amici note, in a none-too-subtle subtweet of libelslander tourist Devin Nunes and his sherpa lawyer Steven Biss.

And the amici point out that the appellate ruling is terrible public policy in that it discourages reporters from seeking comment prior to publication and will “encourage the filing of meritless defamation lawsuits by imbuing them with the power to stop subsequent critical speech.”

Translation: Yo, Eighth Circuit, come and clean this sorry mess up.

Nunes v. Lizza [Amicus Brief, via Politico]

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