Government

Reporter Seeks Review Of Eighth Circuit Cowpie In Devin Nunes Defamation Case

This time they really stepped in it.

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(Photo by Alex Wong/Getty Images)

Looks like Rep. Devin Nunes will get another chance to shake his udders in the Eighth Circuit since reporter Ryan Lizza and Hearst Media requested en banc review of last month’s ruling in their longrunning defamation trench war.

The case involves a September 2018 Esquire article Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret in which Lizza describes being chased all over Sibley, Iowa (pop. 2,611) by the congressman’s dairy farming family. And since Nunes’s family have filed a suit of their own, it looks like the party is just getting started. Ivermectin shots for everyone!

Writing for a panel which included Judge Ralph R. Erickson and Chief Judge Lavenski R. Smith, Judge Steven M. Colloton reinstated one of the defamation charges tossed out by the trial court, handing the litigious congressman and his sparklemagic libelslander lawyer Steven Biss a rare win in their madcap quest to sue every mainstream media outlet in the country.

The ruling rests on two novel interpretations of law. First, while the panel agreed with the trial court that Nunes had failed to allege actual malice with respect to the original article, it held that the mere filing of Nunes’s defamation suit constituted a denial sufficient to give Lizza notice that his own reporting was “wrong.”

Second, the appellate court ruled that Lizza’s retweet of his own article amounted to a second publication.

And because Lizza was supposedly on notice that the article was false, the appellate court concluded that Nunes made a plausible allegation that he had been defamatorily gisted by hyperlink and with actual malice under the NYT v. Sullivan standard. So the dismissal was reversed, causing a whole bunch of First Amendment lawyers to freak out. (And Lizza, too, we’re guessing.)

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Because how the hell could the Eighth Circuit bust in like the Kool-Aid Man and make such a mess of First Amendment law? Was everyone who ever retweeted the Esquire story on the hook for defamatory republication? Could any public figure bottle up a story simply by denying it and putting a reporter “on notice” that his claims were “false?”

“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 at the time.

“The Single Publication Rule exists to prevent endless liability for a single, widely-distributed writing,” he added. “Unlike a subsequent edition of a book or newspaper, or a rebroadcast of a television segment, the Nunes article was only published once. That Lizza merely drew attention to it again via a tweet simply does not constitute a republication in any meaningful sense.”

In short, this aggression could not stand, man. And so Lizza and Hearst filed the instant request for review, noting the dire effects of the original ruling.

“[T]he Panel’s opinion gives public officials veto power over unflattering coverage. They can discourage a report (or later promotion of it) by simply issuing a blanket denial,” the defendants argue. “Indeed, it encourages public officials to issue denials to all unflattering reporting, regardless of accuracy.”

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And if a simple denial by a public figure means that “a publisher must never again reference the challenged article, on pain of substantial cost and legal burden,” then reporters will be actively disincentivized from requesting comment before publication, an outcome which is both bad journalism and bad public policy.

Hearst’s lawyers cite contrary Eighth Circuit and Supreme Court precedents to buttress their arguments against the appellate panel’s conclusions of law and they attack the factual findings as well.

To wit, Judge Colloton held that “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.” But no such specific denial appears in Nunes’s original complaint, filed on September 30, 2019, which only glancingly alludes to third party comments about undocumented immigrants.

Perhaps the plaintiffs were too busy with extremely nasty ad hominem attacks on the reporter to fully refute his claims. And while Nunes did manage to remedy this deficiency in an amended complaint filed in February 2020, that was long after Lizza’s supposed republication by hyperlink on November 20, 2019.

So we’re stuck chewing our cud while we wait to see if the Eight Circuit will clean up its own, or if we’re stuck with a ruling that RTs really do equal endorsements.

Nunes v. Lizza [Trial Docket via Court Listener]
Nunes v. Lizza [Eighth Circuit holding]
Nunes v. Lizza [Petition for Rehearing En Banc, via Law360]

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

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