8th Circuit's Bizarre Ruling In Devin Nunes' SLAPP Suit Against Reporter Ryan Lizza

from the wait,-what? dept

Rep. Devin Nunes has kept up his suing news organizations (and satirical internet cows). He has been mostly losing. Lately, we’ve been writing a fair bit about the lawsuit Nunes’ family has (using the same lawyer, Steven Biss) against reporter Ryan Lizza, which has gone somewhat off the rails. There’s been more nonsense since we last wrote about it, but I’m kind of waiting on the judge to actually rule before I go into the details.

Still, if you’ll recall, there were actually two separate lawsuits here. The one we’ve been writing about was filed by Nunes’ family. Nunes had filed a separate one on his own behalf but the judge correctly dismissed it as absolute nonsense, noting that nothing in it was directly defamatory towards Nunes. Nunes and Biss appealed and the 8th Circuit put out a truly bizarre decision (first pointed out by Josh Gerstein at Politico), which mostly upholds the lower court, but allows the case to continue against Lizza because of his tweeting. But even in upholding the lower court ruling, the judges go out of their way to make a really confused analysis of defamation law. The lower court found no defamatory implication in the story, but the appeals court says it’s there.

Based on the article?s presentation of facts, we think the complaint plausibly alleges that a reasonable reader could draw the implication that Representative Nunes conspired to hide the farm?s use of undocumented labor. See Manzari, 830 F.3d at 889; Stevens, 728 N.W.2d at 827. In reaching a contrary conclusion, the district court relied on the location of the relevant facts in the article. The court determined that the facts about Nunes conspiring to hide the farm?s move and the facts about the farm?s use of undocumented labor were ?scattered at disparate points? and thus not ?juxtaposed.?

But defamation-by-implication claims, like defamation claims generally, must be analyzed by considering the article as a whole. Toney, 85 F.3d at 396. Although the Iowa court in Stevens posited a defendant who ?juxtaposes a series of facts,? 728 N.W.2d at 827 (internal quotation omitted), we do not believe the theory is limited to situations in which the implication arises from, say, consecutive sentences. ?It is well settled that the ?arrangement and phrasing of apparently nonlibelous statements? cannot hide the existence of a defamatory meaning.? Church of Scientology of Cal. v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984) (quoting Kapellas v. Kofman, 459 P.2d 912, 919-20 (Cal. 1969)). When a reader, ?connecting the dots,? could reasonably arrive at the implication, the author may be accountable. Elias v. Rolling Stone LLC, 872 F.3d 97, 109 (2d Cir. 2017). Whether the ?arrangement and phrasing? of facts creates a defamatory implication depends on the particular context; an intervening section break does not necessarily avoid liability.

The court also does a really bizarre analysis of how the article might be defamatory. This contradicts nearly every other ruling on what is and what is not protected opinion:

Nunes alleges that the article implies the existence of a ?politically explosive secret? that he ?conspired with others? to hide the farm?s use of undocumented labor. A conspiracy is an agreement that requires knowledge?here, knowledge that the farm employed undocumented labor and a knowing agreement to cover up that politically embarrassing fact. Yet the Congressman?s complaint says that he was ?not involved? in the farm?s ?operations,? had ?no knowledge of who the dairy farm hired,? and thus ?was not involved in any conspiracy or cover-up.? Whether Nunes knew about the farm?s hiring practices, including the potential use of undocumented labor, and whether he agreed with others to keep that information secret, are issues of verifiable fact. We thus conclude that the implication is ?sufficiently factual to be susceptible of being proved true or false,? so it is not a protected opinion.

That seems like a huge stretch. What saves it (and kills the core defamation lawsuit) is the actual malice standard. Nunes, on appeal, tried to argue that the actual malice standard is wrong, and you kind of get the feeling the judges here agree, but feel obliged to live under it:

On appeal, Nunes suggests that the actual malice standard of New York Times v. Sullivan should be reconsidered,… but of course we are bound to apply it. Under that demanding standard, we agree with the district court that the complaint is insufficient to state a claim of actual malice as to the original publication.

And then it gets dumber. Note that they say that with regards to “the original publication.” The court claims the same does not apply to Lizza’s later tweets about the article.

The district court went further, however, and ruled that the complaint does not state a plausible allegation that Lizza acted with actual malice by republishing the article on his Twitter account after this lawsuit was filed. On this point, we respectfully disagree.

The court then claims that tweets are different from the original publication, which is a bizarre perversion of the single publication rule (that says that a single publication of an article can only count as a single defamation), and that each tweet can be a separate “publication.” And then says that Lizza’s tweets after the lawsuit was filed could meet the actual malice standard, since by that point Lizza was, in effect, on notice that Nunes felt the information in the article was false.

Nunes?s initial complaint was filed on September 30, 2019. The complaint alleged that the ?strong defamatory gist and false implication? of the article was that he ?was involved in, covered-up, used his office to cover up, conspired with others to conceal, or was aware of criminal wrongdoing.? The next paragraph of the complaint makes clear that the ?criminal wrongdoing? to which Nunes referred was the farm?s alleged use of undocumented labor. The complaint denied that Nunes had any involvement in the farm?s ?operations,? denied that there was a ?secret? involving the farm?s move to Iowa and his alleged hypocrisy on immigration policy, and denied that he ?was involved in, covered-up, . . . conspired with others to conceal, or was aware of criminal wrongdoing.?

Nonetheless, on November 20, 2019, Lizza posted a tweet with a link to the article. Lizza?s tweet stated: ?I noticed that Devin Nunes is in the news. If you?re interested in a strange tale about Nunes, small-town Iowa, the complexities of immigration policy, a few car chases, and lots of cows, I?ve got a story for you.? As discussed, the complaint plausibly alleges that the article defames Nunes by implication.

Lizza and Esquire pointed out that this tweet is not even remotely republication (because it’s not). And nothing in that tweet by itself can possibly be defamatory. But.. for reasons that I cannot fathom, the court felt otherwise.

Lizza and Hearst contend that Lizza?s tweet of a link to the original article does not constitute republication of the article. They cite Sundance Image Technology, Inc. v. Cone Editions Press, Ltd., No. 02-CV-2258, 2007 WL 935703 (S.D. Cal. Mar. 7, 2007), which held that providing links to previous publications on a website, without more, was not republication. Id. at *7. And other courts have concluded that ?mere reference to an article,? In re Phila. Newspapers, LLC, 690 F.3d 161, 175 (3d Cir. 2012), or a ?mere hyperlink,? Lokhova v. Halper, 995 F.3d 134, 143 (4th Cir. 2021), without more, is not a republication. But these decisions do not hold categorically that hyperlinking to an original publication never constitutes republication.

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.

This is just wrong. It ignores basically all precedent on how the single publication rule works. The story itself has not been republished. It’s the same story. The whole point of the single publication setup is that unless the story changes, all that matters is the original publication date. Reuter’s chief counsel highlights how this is just flat out wrong:

The ruling is complete nonsense. It’s not how this works at all. Just because Nunes claims the article is defamatory does not put Lizza on notice that it is false, or that pointing people to that article meets the actual malice standard of publishing something knowing that it was false or with reckless disregard for the truth. It seems clear that Lizza still stands by the story and believes that what’s in there is true. So everything about this is screwy. The perversion of the single publication rule. The claim that actual malice can apply for any statement after the filing of the lawsuit. Even the elements for what is an opinion are kinda weird.

The likely end result of this is that Lizza now has to go through this process all over again in the district court, focusing on actual malice, and gets the case dismissed again, but that’s a hugely expensive and time exhausting process.

Politico quotes law professor Chip Stewart noting just how weird all this is:

“It?s certainly a novel application of a couple of important libel doctrines, and a potentially troublesome one if the 8th Circuit?s ruling is allowed to stand,” said Chip Stewart, a professor at Texas Christian University. “It?s an odd kind of bootstrapping argument. Nunes claims the underlying article is false. He sues over it. Lizza tweets the exact same story after the lawsuit is filed. And what was originally not actual malice now all of a sudden is, at least plausibly enough for a lawsuit to advance to further costly litigation. All over a tweet that changed nothing about the original story.”

Politico also suggests that this ruling would open up the possibility that Nunes could sue anyone who retweeted the article, but this is almost certainly wrong. Here’s what Gerstein wrote:

One curious aspect of the ruling is that it appears to open the door to lawsuits against anyone who tweeted or retweeted the original story with knowledge of Nunes’ lawsuit, and to similar claims over members of the public or those with significant social media followings tweeting or retweeting stories after learning that the subject of the story is disputing it in some way.

Except, that shouldn’t be true, because for everyone but Lizza (and Esquire), Lizza’s article is 3rd party content, and (while people forget this), Section 230 protects users who share 3rd party speech. Remember, the law is that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” So, all those other tweets should be protected under Section 230.

Still, this is a bizarrely dumb ruling that allows a clearly vexatious SLAPP suit to continue. Even if the district court (hopefully) tosses out the case again on summary judgment, this whole process is extremely wasteful and the ruling on the books in the 8th circuit is completely upending how the single publication rule works — making it a dangerous place for defamation claims.

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Comments on “8th Circuit's Bizarre Ruling In Devin Nunes' SLAPP Suit Against Reporter Ryan Lizza”

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RP says:

Aha. But back in the other defamation case, the one purportedly brought by the Nunes Family who farms, but is still repressented by Steven Biss and about the true party at interest motivating the lawsuit is a question that no one is answering just yet, we have this Motion referring to the decision in the Eight Circuit:

On September 15, 2021, the United States Court of Appeals for the Eighth Circuit ruled in the appeal filed by Devin G. Nunes in Case 5:19-cv-4064-CJW-MAR. The Court of Appeals affirmed in part, reversed in part and remanded for further proceedings. A copy of the Court of Appeals’ decision is attached.
Significantly, the Court of Appeals held that Devin Nunes’ complaint states a plausible claim for defamation by implication. The Court, p. 6, found as follows:

  • “Nunes contends that his complaint states a plausible claim for defamation by implication. He argues that the article implies the existence of a ‘politically explosive secret’ that he ‘conspired with others’ to hide the farm’s use of undocumented labor. He alleges that the implication is false because he was not involved in the farm’s operations, and ‘had no knowledge of who the dairy farm hired. The district court concluded that ‘no reasonable reader’ could draw that implication from the article. We respectfully disagree.”

Plaintiffs made the exact same claim of defamation by implication in this case, and the District Court dismissed that claim for the exact same reasons as it dismissed Devin Nunes’ claim. See ECF No. 50 (Memorandum Opinion and Order), pp. 28-32.
In light of the Court of Appeals’ reversal, we intend to move the Court in this case for leave to file an amended complaint re-asserting the claim of defamation by implication.
The Court of Appeals’ decision directly impacts the administration of this case. Plaintiffs have a right – indirectly affirmed by the Court of Appeals – to pursue a claim of defamation by implication. In light of the Court of Appeals’ ruling, we request that the summary judgment schedule be suspended and the trial date continued so that Plaintiffs can pursue full justice.

Nunes v. Lizza (5:20-cv-04003) District Court, N.D. Iowa Doc 162 2021-09-15

It doesn’t follow (to me) that a defamation claim brought by one party in one suit being found to have merit gives rise to the proposition the claim in another suit also has merit unless the parties are identical in which case we have another problem….

RP says:

Re: Farm Case - Enter the Volokh

Eugene Volokh got four documents partially unredacted, concerned the exchange of motions about a desire to compel an employee/witness to provide documents that should have been brought to the deposition but where the witness seemed unprepared. It was also notably about Steven Biss’s behavior carving out 2 hours to jaw with a witness’ lawyer on whether the the witness really wanted to take the fifth at a deposition.

From Doc 119, the judge wrote:

Mr. Biss makes bald assurances that the employees want to answer all questions and not assert their Fifth Amendment rights. Nevertheless, Mr. Biss’s behavior—coupled with the facts that (a) the privilege was raised, (b) the privilege was perhaps withdrawn after a lengthy sidebar, and (c) Mr. Allen was fired—gives me little confidence that F.S.D. could make a knowing waiver of his Fifth Amendment rights under these circumstances.

but declined to order attorneys more than to read up on how Van Stelton v. Van Stelton prohibits telling witnesses to shut up without also filing for a protective order. Later in 122 the judge reconsiders and suggests that six employees may very well need criminal defense attorneys assigned.

So what did Volokh get from the exchange of motion papers?

Well the unredacted (less redacted) reply document 111 lays out some assertions of suspicious fact patterns involving I-9, SSN records that don’t match and Biss’s behavior.

Nunes v. Lizza (5:20-cv-04003) District Court, N.D. Iowa

  • Motion to compel by defendants 103 2021-05-21

    Specifically, when the first employee’s independent counsel advised his client to assert his Fifth Amendment right in response to questioning about the Form I-9 he completed to gain employment at NuStar’s farm, Plaintiffs’ counsel, Steven Biss, suddenly took the deposition off the record. Then, two hours of discussions took place between and among Mr. Biss, the witness’s independent counsel, and one or both of the Nunes plaintiffs. At the conclusion of those conversations, the parties went back on the record. Defendants’ counsel asked the first employee witness if he understood his lawyer’s advice, and if he was going to follow it and assert his Fifth Amendment right. Before the witness could answer, Mr. Biss responded, “No, he’s not going to follow it.” The independent counsel then stated that he had been fired, and that his services would not be offered to the other NuStar employees, either.

  • Argument to compel 103-1 2021-05-21

    Before, during, and after the first employee deposition, Mr. Biss represented, consistent with the Plaintiffs’ pleadings, that there are no problems with the employees’ documentation or their immigration status, and that they would not assert their Fifth Amendment rights. See, e.g., Boyer Decl., Ex. F at 74:1-20; id., Ex. H at 20:21-23:15; id., Ex. I. That Mr. Biss would make these representations—despite apparently never meeting with these witnesses, not being their lawyer, and notwithstanding an avalanche of indicia that the workers are here illegally—raises questions about his and his clients’ efforts to mold or restrain the testimony of these witnesses.

  • Response 107 2021-06-01

    • The NuStar employees did nothing wrong and will not assert the Fifth Amendment or refuse to answer any questions. Contrary to Defendants’ argument, the NuStar employees have not received a “clear signal from their employer as to what answers to provide and not provide”. This is a categorically false statement as is Defendants’ inflammatory speculation that any employee will “lie under oath, allowing untruthful testimony to be entered into the record”.
    • Plaintiffs and their counsel did not cause the “independent counsel” to be fired by [the employee-witness FSD]. [FSD] fired the lawyer himself. Plaintiffs were not at the deposition. Plaintiffs’ counsel appeared remotely, and never spoke with the witness.
  • Reply 111 2021-06-04

    Setting aside its bluster, irrelevant and inaccurate attacks on Mr. Lizza’s reporting, and baseless accusations of misconduct by Defendants and their representatives, Plaintiffs’ Resistance does not dispute the alarming facts that support granting the relief Defendants seek.

So, somewhere in there I hope Volokh finds something to write about.

RP says:

Re: Re: Farm Case - Enter the Volokh

As expected, at The Volokh Conspiracry there is a new article "Certain Documents Unsealed in Nunes v. Lizza" referring to the farm case. The article is pretty bare in that it primarily links to redacted and less redacted copies of the four filings above and has a short comment on the process of getting them largely unredacted.

It is suggested that more exposition may come next week.

RP says:

Re: Re: Farm Case - Enter the Volokh

Above the Law: "Nunes Defamation Suit Sheds Redaction Bars, Is Somehow Even Grosser Than Expected" has a summary of what was revealed:

The employee appeared without the subpoenaed identification papers, having only learned about the deposition when he showed up for work that morning. Hearst’s lawyers allege that they presented the employee with multiple documents drawing his immigration status into question, including mismatched signatures, papers he purported to have filled out himself although he cannot read or write English, one form which described him as a US citizen, and another which described him as a permanent resident under a program which cuts off eligibility three years before the witness was even born. The lawyer hired by NuStar to represent the workers advised his client to assert his Fifth Amendment right against self-incrimination, at which point Biss lost his shit and demanded to go off the record.

Two hours later, the witness’s attorney had been fired, and Biss, who claims not to represent the NuStar workers, was insisting that none of the six would take the Fifth. Hearst’s lawyers refused to depose an unrepresented witness who might incriminate himself with truthful testimony, and the proceeding was adjourned sine die.

Tanner Andrews (profile) says:

Further Review is Unlikely

While this panel may have been consuming controlled substances, they are likely to have the last word. Review "en banc" (all the judges) is rare, and the U.S. Supreme Court takes but a fraction of the cases offered.

In state court, there is often at least one more layer of review. From the trial level, you go to the district court of review, and from there may go up to a highest court in the state. From there, on remarkably rare occasions, you may be able to have the U.S. Supreme Court review the case.

The intent with making further review was probably mostly good. We do not want cases to drag out for years, with appeals upon appeals. A single layer of appeals provides a reasonable degree of finality, even if the reviewing courts beclown themselves.

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