Judge Rejects Devin Nunes' SLAPP Suit Over The Esquire Article He Really, Really Doesn't Want You To Read

from the have-you-read-it-yet? dept

A federal judge has happily dismissed one of Devin Nunes’ many SLAPP suits. This isn’t much of a surprise given what the judge had said back in May regarding Nunes’ Iowa-based SLAPP suit (reminder: Iowa has no anti-SLAPP law) against Esquire Magazine and reporter Ryan Lizza. The lawsuit was over this article that Devin Nunes really, really doesn’t want you to read: Devin Nunes?s Family Farm Is Hiding a Politically Explosive Secret. Reading that will make Rep. Devin Nunes very, very sad.

Back in May, the judge made it clear that he didn’t think there was much of a case here, but gave Nunes a chance to try to save the lawsuit. As you can already tell, his lawyer, Stephen Biss, has come up empty in his attempt. The court easily dismisses the case with prejudice. First, the judge goes through the various statements that Nunes/Biss claim are defamatory and says “lol, no, none of those are defamatory.”

The statements at issue also do not assert provably false facts, nor do they imply the existence of undisclosed facts. The statements that plaintiff has a secret, hid or concealed his family?s move, or conspired with others to hide the move do not have ?precise core meaning for which a consensus of understanding exists.? … There is no precise meaning for how many people can know a fact for it to remain a ?secret? nor is there an accepted line between ?hiding? or ?concealing? a fact and simply declining to publicize it. Likewise, in this context there is no precise meaning of ?conspiracy.? For the same reasons, the challenged statements are not ?objectively capable of proof or disproof[.]?…

The context of defendants? statements also weighs in favor of being protected opinions. The context of the publication includes the ?social context? of the publication, which includes the style of writing and the intended audience…. The Article is written in a first-person perspective and includes numerous instances of Lizza?s subjective mental impressions. This weighs against the statements being reasonably construed as statements of fact as opposed to Lizza?s characterizations or opinions.

Incredibly, the ridiculous, performative, hyperbolic language that Biss employed in the lawsuit — calling Lizza a “left-wing political journalist, well known for his extreme bias towards Plaintiff” comes back to bite Nunes in this case:

The context also includes ?public context or political arena in which the statements were made.?… Plaintiff alleges that Lizza is a ?left-wing political journalist, well known for his extreme bias towards [p]laintiff.? …. At the time defendants published the Article, plaintiff was a sitting Republican congressman running for re-election…. In this public context, the Court must construe the Article in light of this nation?s ?profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.? … Accepting plaintiff?s allegations as true, any reasonable reader would construe the Article in light of Lizza?s well know political bias. Thus, any reasonable reader would understand defendants? use of terms like ?secret? or ?conspired? as the type of hyperbole that is to be expected in the political arena rather than an insinuation of fact…. In this public context, no reasonable reader could construe Lizza?s statements as facts rather than opinions.

Nunes would have lost either way, but it’s hilarious to see the ridiculous, over-the-top language his lawyer used come back directly to bite him.

Also, the judge points out that Lizza’s articles support the conjecture that Nunes is so upset about all this pretty strongly:

Finally, the statements at issue cannot be construed as implying undisclosed defamatory facts because Lizza disclosed the basis for his conclusions. As to the statements that plaintiff?s family?s move was a ?secret? or was ?concealed,? the Article states that Lizza was unable to find any mention from plaintiff or the press in plaintiff?s district mentioning the move…. The Article also mentions a Wall Street Journal editorial which discussed plaintiff?s family?s dairy farm and featured a Tulare, California dateline…. Nothing in the context of the Article otherwise implies that defendants? characterization is based on any other undisclosed facts.

Similarly, as to the conclusion that plaintiff and others conspired to hide the move, the Article points to two specific instances that support the statement. First, the Article notes that plaintiff appeared at a town hall with Congressman King in a town fifty miles from Sibley. The press release for the event did not mention plaintiff?s family ties to the district, and instead stated that plaintiff?s ?family has operated a dairy farm in Tulare County, California for three generations.? … Second, the Article discusses how the Dairy Star article about NuStar mentioned several members of the Nunes family, but omitted plaintiff…. Nelson told Lizza he omitted plaintiff at plaintiff?s family?s request…. These facts show the basis for defendants? conclusion that plaintiff and others ?conspired? to hide plaintiff?s family?s move, but do not imply the existence of other facts. The reader is ?free to accept or reject [defendants?] opinion based on their own independent evaluation of the facts.?

As for the statement in the article about Nunes trying to discredit the Russia investigation and “protect[ing] Donald Trump at all costs, even if it means shredding his own reputation and the independence of the historically nonpartisan committee in the process” is deemed rhetorical hyperbole:

This statement is a protected opinion for two reasons. First, the statement is ?rhetorical hyperbole? and is thus protected by the First Amendment. In, Adelson v. Harris, 774 F.3d 803, 807 (2d Cir. 2014), the court held that statements that plaintiff?s money was ?dirty? and ?tainted? was non-actionable rhetorical hyperbole protected by the First Amendment. Terms like ?battering ram,? ?at all costs,? and ?shredding? are similar rhetorical hyperbole as well.

Second, this statement also has no ?precise core of meaning for which a consensus of understanding exists? and thus is not objectively capable of proof or disproof….. There is no core meaning about what it means to use a committee as a battering ram, protect someone at all costs, or shred one?s own reputation. Even if these terms had a precise meaning, plaintiff has not explained how such statements could be proved or disproved. Plaintiff argues these statements ?accuse Plaintiff of abusing his position as Chairman of the House Intelligence Committee, obstruction of the Russia investigation, prejudice, impartiality and unethical behavior.? …. Plaintiff fails, however, to identify any provably false facts implied by the Article that would lead to these conclusions. Also, for the same reasons discussed in the previous section, the context of defendants? statements, particularly these statements about issues of fundamental public importance, must be construed as opinions entitled to protection in the context of political debate concerning a public official.

Another statement — regarding Nunes’ family selling their California dairy farm and moving to Iowa for a new farm — the judge notes that Nunes made no effort to claim that this statement is false, even though it was listed as one of the defamatory statements in the lawsuit:

Plaintiff has not alleged that any aspect of this statement is false, nor does plaintiff?s brief articulate how this statement is defamatory. Plaintiff appears to admit the statements to the extent it alleges that plaintiff?s parents, brother, and sister-in-law currently live and work in Sibley, Iowa…. Regardless, nothing about this statement is defamatory. None of the facts about plaintiff?s relation to various individuals and their real estate transactions tends to harm plaintiff?s reputation. As a matter of law this statement is not defamatory.

One by one the judge rejects each and every claimed defamatory statement for reasons like these. Another one gets rejected because it’s about Nunes’ family, not himself. Another for being “substantially true.” Basically just as we said when this suit was filed, none of this is even remotely defamatory.

Biss tried to get around the fact that none of the actual statements are defamatory by arguing that the article as a whole implied defamatory things and… that’s not how any of this works. And the judge knows that.

Plaintiff fails to state a claim for defamation by implication for two reasons. First, no reasonable person could draw plaintiff?s asserted implication from the Article. Second, even if a reasonable person could draw the implication, there is no indication that defendants intended or endorsed the implication.

He also suggests there are “defamatory inferences,” and again, the judge points out that the article does not support this claim:

Reading the entire Article in context, no reasonable reader could reach plaintiff?s alleged implication because the Article negates those implications. The Article states that plaintiff ?has no financial interest? in NuStar. … The Article also makes clear plaintiff is not involved in managing NuStar. … (noting that the Dairy Star article stated that NuStar was managed by Anthony Jr. ?with his son and wife? and noting in the next paragraph plaintiff is not mentioned anywhere in the Dairy Star article). No reasonable reader could understand the Article to imply the exact opposite of its text, i.e. that plaintiff had some financial or managerial interest in NuStar.

Likewise, no reasonable reader could read the Article to imply plaintiff conspired with others to hide NuStar?s use of undocumented labor. The Article is clear the conspiracy was ?to hide the fact that [plaintiff]?s family sold its farm and moved to Iowa[.]? …. Similarly, no reasonable reader could find the ?politically explosive secret? referenced in the title of the Article is NuStar?s use of undocumented labor. The Article states ?[s]o here?s the secret: The Nunes family dairy of political lore?the one where his brother and parents work?isn?t in California. It?s in Iowa.? … Given these express statements, no reasonable reader could infer that plaintiff was involved in a conspiracy to hide NuStar?s use of undocumented labor.

Then after all of that, the court also notes that Nunes failed to show actual malice, which, of course, is necessary in defamation cases involving public figures. And, as a reminder, “actual malice” does not mean “he didn’t like the guy.” It has a very specific meaning: that the statements were made knowing they were false or with reckless disregard for whether it was false or not. And, as the judge notes, there was no evidence to support this at all.

The cases plaintiff cites in support of his argument highlight the factual insufficiency of his complaint. For example, plaintiff asserts defendants acted with actual malice because they failed to observe journalistic standards, conceived of a storyline in advance and sought to find evidence to confirm that story, and relied on unreliable or biased sources in researching the Article…. These allegations, however, are ?naked assertion[s]? devoid of ?further factual enhancement,? and ?labels and conclusions,? that fail to plausibly assert actual malice….


The Court will not reiterate every factual deficiency in the amended complaint, but some examples are illustrative. Plaintiff alleges defendants ?relied on sources, including anonymous and unnamed persons, they knew were wholly unreliable and had an axe to grind against Plaintiff and his family.?… Plaintiff does not identify the sources, what axe the sources had to grind with plaintiff, or any factual basis from which the Court could plausibly find that defendants? sources were unreliable or that defendants knew or should have known they were unreliable. To the contrary, the Article itself refers to two unnamed, but not anonymous, sources who had firsthand knowledge of NuStar?s use of undocumented labor…. This is fundamentally different than the cases upon which plaintiff relies. See Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 315 n.10 (5th Cir. 1995) (noting that evidence of an ulterior motive can ?bolster an inference of actual malice,? and citing specific facts about the relationship between the parties from which the jury could have found that defendant made defamatory statements with actual malice); AdvanFort Co. v. Mar. Exec., LLC, No. 1:15-cv-220, 2015 WL 4603090, at *8 (E.D. Va. July 28, 2015) (finding that plaintiff could plausibly allege actual malice if plaintiff specifically asserted that defendant knew the author?s relationship with plaintiffs had ?gone sour? after their past ?unsuccessful business relationship?); Barreca, 683 N.W.2d at 123 (reversing summary judgment when record established defendant made defamatory statement based on one anonymous and unverified phone call, and portions of the statement at issue arguably showed defendant ?entertained serious doubts about the truth of the phone call?).

Similarly, plaintiff alleges defendants acted with actual malice because they republished the Article…. The amended complaint asserts defendants republished the Article by tweeting links to it…. This argument fails both factually and as a matter of law. Publishing a link to an existing story is not a republication of the story…. Even if tweeting links to the Article constitutes republication, the cases plaintiff cites are inapposite here.

For what it’s worth, the judge also makes a brief mention of the language that Biss used in the lawsuit to smear Lizza, regarding some rumors that went around about him. We had pointed out earlier that these claims seemed much more “defamatory” than anything Lizza wrote about Nunes. Lizza’s lawyers had asked the court to strike those statements from the motion, which the court denies as moot (since the whole case is being tossed) but does note:

The Court notes, however, the material identified by defendants … is immaterial, impertinent, and scandalous. Plaintiff?s personal attacks on Lizza have no bearing on this case. This is apparent because plaintiff never refers to the challenged allegations in resisting defendants? motion to dismiss. The allegations likewise are prejudicial to Lizza and have criminal overtones.

The one annoying part of the ruling has to do with anti-SLAPP laws. Even though, as noted, Iowa has no anti-SLAPP law, Lizza and Hearst sought to say that California’s strong anti-SLAPP law should apply (seeing as any reputational damage to Nunes would occur in California). The court rejects that on procedural grounds, saying that standard 12(b)(6) motion to dismiss procedures (and other rules of federal civil procedure) “pre-empt” California’s anti-SLAPP law, since they grant the same basic protections in getting cases tossed out early. That’s an argument that comes up frequently in anti-SLAPP cases. And while it’s true that a motion to dismiss can — at times — serve a similar purpose to an anti-SLAPP motion to strike, there are important procedural differences that protect free speech, including the attorney’s fees award that goes along with most anti-SLAPP laws, including California’s. Unfortunately, here, the court says that cannot apply.

This is yet another reason why we absolutely need a federal anti-SLAPP law with fee shifting as part of it. Still, overall, this is a good, clean ruling rejecting one of Nunes’ silly SLAPP suits. This result was inevitable, but still created a nuisance — which likely was the intent all along.

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Comments on “Judge Rejects Devin Nunes' SLAPP Suit Over The Esquire Article He Really, Really Doesn't Want You To Read”

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That One Guy (profile) says:

Mostly good

The court rejects that on procedural grounds, saying that standard 12(b)(6) motion to dismiss procedures (and other rules of federal civil procedure) "pre-empt" California’s anti-SLAPP law, since they grant the same basic protections in getting cases tossed out early.

Except that they really don’t. Both may allow cases to be tossed early, but only one of them provides a very real incentive not to file SLAPP suits, which is a huge difference for those on the receiving end of one.

If one law allows SLAPP suits by not providing any real incentive not to file them and another provides that incentive then to claim that they provide similar protections very much misses the point of anti-SLAPP laws and why they are needed.

That said to have a judge systematically go through your arguments and point out how utterly garbage they are is probably not something a lawyer wants to see and shows just how baseless Nunes’ complaints were here, so while the ruling may have faltered a bit on the end the overall result is still a good one.

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