A federal appellate court has partially revived a lawsuit by U.S. Rep. Devin Nunes, alleging that an Esquire Magazine article told defamatory lies about his family's Iowa dairy farm.
Nunes, a California Republican, sued Hearst Media and reporter Ryan Lizza for defamation over the 2018 article, which documented that the Nunes family had moved their dairy operation from California to northwest Iowa. Lizza suggested the Congressman had tried to keep this a secret because the farm employed undocumented workers, contradicting his political stances on immigration.
Nunes, who has filed defamation lawsuits against a variety of critics, claimed in his suit the article made specific defamatory claims but also committed "defamation by implication" for stringing together facts to suggest a "politically explosive secret."
A federal judge in northern Iowa dismissed the case in August 2020, finding none of the statements were defamatory and that Nunes had not met the high bar of showing "actual malice" in publishing falsehoods about a public figure.
Previously:Report: Devin Nunes' family's farm is in northwest Iowa, not California
Nunes appealed, and the U.S. Court of Appeals for the Eighth Circuit mostly agreed with the district court, finding Wednesday that the original article was not defamatory. However, the appellate court remanded the case over additional claims that Lizza committed defamation again when he tweeted out a link to the article in November 2019.
Under First Amendment precedent, committing defamation against a public figure requires the speaker to either know their statement is untrue, or "recklessly disregard" evidence the statement may be untruthful. Lizza reported Nunes did not respond to interview requests for the original article.
The Congressman argued in court that his defamation lawsuit, which was filed before the 2019 tweet, should have put Lizza on notice that he denied any knowledge of alleged immigration violations on his family's farm. The circuit court said that's enough to survive a motion to dismiss, with Judge Steven Colloton writing, "the pleaded facts are suggestive enough to render it plausible that Lizza, at that point, engaged in 'the purposeful avoidance of the truth.'"
Cristina Tilley, a University of Iowa law professor specializing in media law, said there's increasing pressure in recent years to revisit New York Times v. Sullivan, the Supreme Court precedent establishing the "actual malice" standard for defamation.
Previous coverage:U.S. Rep. Devin Nunes sues Esquire magazine, journalist over story about Iowa farm, demanding $75 million in damages
Although the 8th Circuit is bound by that precedent, Tilley said in an email that Wednesday's decision represents "a fairly new and unusual position that tweeting out an article that has already been published can make a speaker vulnerable to libel liability if the subject of the article has denied the original allegations in court."
"It's definitely a departure from the spirit of Sullivan, which aimed to cultivate a robust environment for reporting on political figures ... If politicians can essentially discourage reporters from referring back to their previous coverage by filing lawsuits that deny those complaints, that could be a real burden on the press and one the Supreme Court has long resisted," Tilley said.
The decision sends the case back to district court for further litigation over whether the 2019 tweet was, in fact, defamatory.
Lizza, who now works for Politico, declined to comment. Nunes' spokesperson did not return a message seeking comment.
In addition to Nunes' lawsuit, another lawsuit is pending from his father, brother and NuStar Farms LLC. Nunes' family initially sought $25 million in damages, arguing Lizza and Hearst "should be punished for their unlawful actions and a very strong message needs to be sent to prevent other so-called 'journalists' from acting in a similar way."
A federal judge dismissed all but one of NuStar's claims in September 2020, ruling it was plausibly defamatory to say “NuStar did indeed rely, at least in part, on undocumented labor" but that none of the other statements NuStar objected to crossed the line. He also ordered NuStar to file a new complaint stripped of "immaterial, impertinent and scandalous" allegations against Lizza.
That case remains tied up in litigation, most recently with demands from Hearst and Lizza to identify who is funding NuStar's lawsuit against them.
Nunes, a California Republican, sued Hearst Media and reporter Ryan Lizza for defamation over the 2018 article, which documented that the Nunes family had moved their dairy operation from California to northwest Iowa. Lizza suggested the Congressman had tried to keep this a secret because the farm employed undocumented workers, contradicting his political stances on immigration.
Nunes, who has filed defamation lawsuits against a variety of critics, claimed in his suit the article made specific defamatory claims but also committed "defamation by implication" for stringing together facts to suggest a "politically explosive secret."
A federal judge in northern Iowa dismissed the case in August 2020, finding none of the statements were defamatory and that Nunes had not met the high bar of showing "actual malice" in publishing falsehoods about a public figure.
Previously:Report: Devin Nunes' family's farm is in northwest Iowa, not California
Nunes appealed, and the U.S. Court of Appeals for the Eighth Circuit mostly agreed with the district court, finding Wednesday that the original article was not defamatory. However, the appellate court remanded the case over additional claims that Lizza committed defamation again when he tweeted out a link to the article in November 2019.
Under First Amendment precedent, committing defamation against a public figure requires the speaker to either know their statement is untrue, or "recklessly disregard" evidence the statement may be untruthful. Lizza reported Nunes did not respond to interview requests for the original article.
The Congressman argued in court that his defamation lawsuit, which was filed before the 2019 tweet, should have put Lizza on notice that he denied any knowledge of alleged immigration violations on his family's farm. The circuit court said that's enough to survive a motion to dismiss, with Judge Steven Colloton writing, "the pleaded facts are suggestive enough to render it plausible that Lizza, at that point, engaged in 'the purposeful avoidance of the truth.'"
Cristina Tilley, a University of Iowa law professor specializing in media law, said there's increasing pressure in recent years to revisit New York Times v. Sullivan, the Supreme Court precedent establishing the "actual malice" standard for defamation.
Previous coverage:U.S. Rep. Devin Nunes sues Esquire magazine, journalist over story about Iowa farm, demanding $75 million in damages
Although the 8th Circuit is bound by that precedent, Tilley said in an email that Wednesday's decision represents "a fairly new and unusual position that tweeting out an article that has already been published can make a speaker vulnerable to libel liability if the subject of the article has denied the original allegations in court."
"It's definitely a departure from the spirit of Sullivan, which aimed to cultivate a robust environment for reporting on political figures ... If politicians can essentially discourage reporters from referring back to their previous coverage by filing lawsuits that deny those complaints, that could be a real burden on the press and one the Supreme Court has long resisted," Tilley said.
The decision sends the case back to district court for further litigation over whether the 2019 tweet was, in fact, defamatory.
Lizza, who now works for Politico, declined to comment. Nunes' spokesperson did not return a message seeking comment.
In addition to Nunes' lawsuit, another lawsuit is pending from his father, brother and NuStar Farms LLC. Nunes' family initially sought $25 million in damages, arguing Lizza and Hearst "should be punished for their unlawful actions and a very strong message needs to be sent to prevent other so-called 'journalists' from acting in a similar way."
A federal judge dismissed all but one of NuStar's claims in September 2020, ruling it was plausibly defamatory to say “NuStar did indeed rely, at least in part, on undocumented labor" but that none of the other statements NuStar objected to crossed the line. He also ordered NuStar to file a new complaint stripped of "immaterial, impertinent and scandalous" allegations against Lizza.
That case remains tied up in litigation, most recently with demands from Hearst and Lizza to identify who is funding NuStar's lawsuit against them.
Appeals court rules article about Devin Nunes' family farm wasn't defamatory, but tweeting about it might have been
8th Circuit finds Esquire's 2018 article wasn't defamatory, but a 2019 tweet from its author might have been, sending case back to lower court.
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