Devin Nunes Claims The Right To An ‘Unimpaired Reputation’ Is A ‘Sacred Right’; Oh And Also Needs To Cough Up Info On How He Got Hired

from the thin-skinned-public-figure-says-what? dept

Former Congressman, now Trump lackey TruthSocial CEO, Devin Nunes hasn’t had very much success with his long list of lawsuits against critics and the media. In just the past few months he’s lost multiple such cases. Of course, that hasn’t stopped him from soldiering on. One of the bigger cases he filed was against reporter Ryan Lizza and Hearst Media over an Esquire piece that Lizza published. While a district court dismissed the lawsuit easily, a year ago, the 8th Circuit brought it back with a bizarrely confused ruling about the single publication rule. I’m not going to revisit all the problems with that ruling, you can go to the link and read it if you want. However, it did at least revive the case, if only on an exceptionally narrow basis around a single tweet by Lizza, and whether or not that tweet (and not the underlying article) were done with actual malice under the law (i.e., with Lizza knowing it was untrue).

Since then, the case has continued to plod along with Nunes attempting to file a second amended complaint. Lizza and Hearst protested that the second amended complaint sought to revive a bunch of the claims that were already dismissed and to talk about stuff way beyond that one single tweet now at issue in the lawsuit. In response, back in June, the court allowed Nunes to file a second amended complaint, but a narrowly focused one:

Plaintiffs’ motion is GRANTED to allow Plaintiff’s Defamation by Implication and Common Law Conspiracy claims. Plaintiff’s motion is DENIED as to leave to amend to add False Light Invasion of Privacy claims. Plaintiff shall have until June 15, 2022 to file an Amended Complaint removing his False Light Invasion of Privacy Claim and eliminating the prolixity and irrelevant material from his remaining claims.

On June 11th, the amended complaint was filed, and as is all too typical of Devin Nunes lawsuits represented by lawyer Steven Biss, it’s chock full of all sorts of nonsense. I’d argue that it certainly did not eliminate “the prolixity and irrelevant material” when it includes stuff like this:

Lizza is a high-profile, left-wing political journalist, well-known for his extreme bias towards Plaintiff and his long history of publishing libelous statements about Plaintiff. In April 2017, while employed by the New Yorker magazine, Lizza wrote a series of articles that falsely accused Plaintiff of colluding with the “Trump Administration” to “manufacture a fake scandal” and buttress a baseless claim of wiretapping Trump Tower. Lizza falsely stated that Plaintiff had leaked classified information, engaged in a “series of lies”, misled the American public, and misrepresented the contents of intelligence files that Plaintiff had reviewed. Lizza informed the New Yorker’s readers that the “fake scandal created by Trump and Nunes is not over yet.”

Anyway, Lizza and Hearst’s lawyers also took issue with this and asked the court to strike various parts of the complaint as “immaterial and impertinent.”

Despite the mandate of the Order, Plaintiff filed his Second Amended Complaint without removing the stricken prolix and irrelevant material from his proposed second amended complaint, including the specific examples of irrelevant material that the Court identified in the Order. Plaintiff also still has not specified the basis of his defamation claim, which is now confined to a November 20, 2019 Twitter posting by Ryan Lizza, as he was ordered to do. When invited to correct the issues short of motion practice, Plaintiff refused

In response, in early July, Nunes filed a “resistance and opposition” to Lizza’s motion to strike, which again I might argue is somewhat full of prolixity and irrelevant material. Biss/Nunes insist that, for example, even as the court directly highlighted six extraneous and irrelevant tweets as examples of what not to include, it chose to include them anyway… because a conspiracy is afoot. Oddly, they only make this argument in a footnote, even though the entire point of this filing should be to explain why this content is relevant.

In addition to being “background information for the republication claim”, Plaintiff included the six tweets in the second amended complaint for two (2) reasons. First, the six tweets are evidence of prior publications, which under the Cowman case, are relevant to Plaintiff’s claim that Defendants acted with actual malice in republishing the article on November 20, 2019. Second, Plaintiff included the six tweets because they are relevant to Plaintiff’s conspiracy claim.

Then, Biss and Nunes decide to stand on their moral high horse and proclaim that there’s some fundamental right to having a good reputation, after announcing “the evidence of fraud and fabrication by Defendants is shocking” (though I’ll note that I can find no evidence of either fraud or fabrication in the amended complaint — at best they seem to suggest the possibility of sloppy reporting and/or opinionated writing, which is not anything like fraud or fabrication, and at worst, they mostly just suggest that Nunes wasn’t happy with the reporting and decided to sue over it).

But, this argument here, is just… special:

The right to an unimpaired reputation is among the most sacred rights recognized by the common law

Imagine claiming that “the right to an unimpaired reputation is among the most sacred rights” in the very same case where Nunes repeatedly trashes the reputation of Lizza. There’s also some pandering to the judge:

The law of defamation guards the reputations of public figures like Devin Nunes, just as it protects the reputations of every Judge on every Court

The magistrate judge on the case ruled late last month basically telling Nunes/Biss to knock it off, but still allowing a new amended complaint to be filed. Basically, the magistrate judge reminded Nunes and Biss that when the 8th Circuit revived the case, it did so on narrow grounds about a single tweet and whether it constituted actual malice under the law, and all the high falutin’ stuff about a conspiracy was utter nonsense.

Despite that concession, Plaintiff makes brief assertions in footnotes that the six tweets are not only “background information for the republication claim” but evidence of prior republications and that they are relevant to his conspiracy claim. (Doc. 100 at 2 n.1.) However, the Eighth Circuit was aware of the other tweets and made it clear that further proceedings on Plaintiff’s claims alleging defamation by implication, and the related claim alleging a common law conspiracy, are for the November 20, 2019 tweet which published the article. Nunes, 12 F.4th at 899. Although the tweets are not identical in the two complaints, no tweets more recent than November 20, 2019 are included in the Second Amended Complaint. Compare (Doc. 23 at 11-16) with (Doc. 90 at 10-15.)

Plaintiff provides no explanation to show how the tweets are now relevant although he cites Cowman v. LaVine, 234 N.W.2d 114, 121 (Iowa 1975) as support for both the relevance and admissibility of the tweets. (Doc. 100 at 3 n.2.) Plaintiff’s reliance on Cowman is misplaced. Cowman dealt with the admissibility of evidence that would otherwise be privileged to address a defendant’s wrongful motive. Cowman, 234 N.W.2d at 121. There, the Iowa Supreme Court explained that “defamatory publications similar to the one charged are generally admissible on the issue of actual malice, provided they are not privileged” so that actual malice may be inferred because republication may be “probative of the declarant’s state of mind.” Id. That approach to actual malice is not relevant here because the Iowa Supreme Court discarded it. “We discard the old common law wrongful motive standard and adopt . . . the New York Times ‘knowing or reckless disregard’ definition of ‘actual malice.’” Barreca v. Nickolas, 683 N.W.2d 111, 120 (Iowa 2004) (citing Price v. Viking Penguin, Inc., 881 F.2d 1426, 1433 (8th Cir.1989)) (“[A]ctual malice focuses upon the attitudes of defendants vis-à-vis the truth of their statements, as opposed to their attitudes towards plaintiffs.”). Despite this, Plaintiff attempts to inject his subjective beliefs about Defendants’ attitudes at every turn. Plaintiff has only alleged actual malice as to the November 20, 2019 tweet because Defendant Lizza was on notice when he made it. Despite knowing this, Plaintiff has failed to allege actual malice as to the other six tweets. Thus, Cowman is inapplicable. Regardless, the Eighth Circuit already considered similar tweets and found that Plaintiff only adequately alleged actual malice as to the November 20, 2019 tweet. These six tweets also have nothing to do with the issue of actual malice or the rest of Plaintiff’s claims and are irrelevant.

The end result is that Biss is told to try, try again. And without the conspiracy stuff or irrelevant arguments about the Mueller report (yes, really).

And so, Biss has now submitted yet another amended complaint, which is only slightly less bombastic. But, finally, it doesn’t have the excess tweets or the conspiracy claims.

Meanwhile, over in another venue entirely, this same case is causing other problems for Nunes. You see, Nunes keeps claiming that Lizza’s article — and now just the tweet, since that’s all that’s left of the case — has caused him real damage. So, Lizza and Hearst’s legal team have subpoenaed Truth Social’s parent corporation, Trump Media and Technology Group (TMTG), Nunes’ employer, to seek evidence about the “damage” to Nunes’ reputation, and arguing that his hiring by Trump showed the opposite. TMTG has tried not to actually comply with the subpoena, so Lizza’s team had to go to court in Florida to try to enforce the subpoena.

Nunes’s hiring is inconsistent with his claimed reputational harm, a central issue in his Action. Petitioners therefore subpoenaed TMTG, seeking documents relating to its recruitment and hiring of Nunes. Petitioners anticipate that the subpoenaed documents will show that Nunes has not suffered reputational harm. They will instead show that Nunes, a recent recipient of the Presidential Medal of Freedom, maintains a sterling reputation among people who matter most to him: Those willing to pay him a lot of money to do an important job, in the limelight, as part of a project that advances political objectives.

Although the relevance of the requested documents is obvious, TMTG responded to the Subpoena with evasive and improper objections and responses. It refused to remedy the defects in its responses or meaningfully meet and confer with Petitioners. It refused to produce a single document. Its objections should be overruled, and it should be ordered to produce all documents responsive to the requests at issue

TMTG sought to convince the court not to enforce the subpoena, but on Monday, that failed. The court has told Truth Social to cough up the necessary documents.

The ruling rejects TMTG’s arguments systematically — including rejecting TMTG’s claim that the case was filed in the wrong court (in Palm Beach), because TMTG is actually based in Sarasota, which is at the other end of the state. But, as the magistrate judge notes, TMTG only recently changed its official location to Sarasota, and at the time that the subpoena was served, it was still officially in Palm Beach (oops).

But, more importantly, the court says that TMTG’s substantive arguments for why the subpoena is too broad and burdensome… are nonsense. The judge did remove one of the unanswered requests, but orders TMTG to respond to five other document requests:

Here, the Court finds that request #2 does not seek documents that are relevant or proportionate to the claims or defenses in the underlying action pursuant to Federal Rule of Civil Procedure 26(b)(1). Therefore, TMTG shall not be required to respond to request #2.

The Court does, however, find that requests #3, 4, 5, 6, and 7 do seek relevant and proportionate documents and also finds that TMTG and Nunes’ remaining objections to these requests are without merit and are overruled. Therefore, TMTG shall be required to respond to requests #3, 4, 5, 6, and 7 on or before August 22, 2022. TMTG shall produce all non-privileged, responsive documents by that date and also amend its written responses to the subpoena so that they clearly state what is being produced, whether any documents are being withheld, and, if so, why the documents are being withheld. Finally, as discussed at the discovery hearing, TMTG shall only be required to produce DWAC documents to the extent that they are in TMTG’s possession, custody, or control

So, yeah, that’s also probably not very good for Nunes’ big case back in Iowa, as Lizza and Hearst should soon have useful evidence debunking the idea that Nunes was actually harmed by Lizza’s tweet.

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Comments on “Devin Nunes Claims The Right To An ‘Unimpaired Reputation’ Is A ‘Sacred Right’; Oh And Also Needs To Cough Up Info On How He Got Hired”

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That One Guy (profile) says:

Left out a few words there Nunes

The right to an unimpaired reputation is among the most sacred rights recognized by the common law

‘… so long as it’s our reputations, we absolutely have the right to lie and besmirch the reputation of anyone else, like I’m doing in this case.’

This comment has been deemed insightful by the community.
jimb (profile) says:

Reputations are earned, not entitlements...

Devin Nunes is “entitled” to exactly the reputation he has earned, every bit of it, by his actions and his life history. As is any of us, including Devin’s cow. Mr. Nunes has, by his actions and his associations, earned -every bit- of the online ridicule and derision that tag and follow him… and each lawsuit and in-court tantrum earns him a bit more of his reputation. That he doesn’t seem to understand this earns him yet a bit more. Keep going, Devin, and let us watch you earn a reputation as a slow learner, too.

hij (profile) says:

Strict Constitutionalism and Sensationalist Journalism

One day they are going to learn about Benjamin Franklin and how he learned a living. Are they ever in for a shock. Weird how the folks who want to channel the “founding fathers” are so shockingly ignorant of the context of the 1st amendment in a time when many journalists were barking mad with little regard for civilities and reputations.

This comment has been deemed insightful by the community.
This comment has been deemed funny by the community.
Thad (profile) says:

Re:

One day they are going to learn about Benjamin Franklin and how he learned a living. Are they ever in for a shock.

I mean these are people who are able to square “Christian values” with “Donald Trump”. I really don’t think cognitive dissonance is a big concern here.

This comment has been deemed insightful by the community.
This comment has been deemed funny by the community.
That One Guy (profile) says:

Re: Re: "'Love your neighbor'? What lib pansy said that?"

‘We base our lives on our Christian values! No not those values. Not those ones either! Okay fine, we mean we want to be assholes and then claim that calling us out on our behavior is religious persecution!’

Anonymous Coward says:

What about my sacred an inalienable right to be entertained by incompetent public figures?

I demand Nunes start suing hashtags (for my entertainment). Also they should probably go after 127.0.0.1, that is really making them look bad.

PS: if you aren’t amused yet, sorry you either missed the context or lack my sense of humor, so here: have a ‘/s’ as a subtle-like-a-hammer clue.

Anonymous Coward says:

The SCOTUS almost established this right fifty years ago, before Google created dossiers on everyone. In today’s environment, constitutional harm would be easy to prove and would flip this ruling.

https://en.wikipedia.org/wiki/Paul_v._Davis

Paul v. Davis, 424 U.S. 693 (1976), is a United States Supreme Court case in which a sharply divided Court held that the plaintiff, whom the local police chief had named an “active shoplifter,” suffered no deprivation of liberty resulting from injury to his reputation.[1] In the case, the court broke from precedents and restricted the definition of the constitutional right to privacy “to matters relating to ‘marriage procreation, contraception, family relationships, and child rearing and education”.

The plaintiff, Edward C. Davis III, had been previously arrested on shoplifting charges. After the charges were dropped, Davis sued the Louisville, KY chief of police for distributing “active shoplifter” posters to merchants throughout the city.

In a 5-3 decision in favor of the police chief, Paul, Justice Rehnquist wrote the opinion for the majority. The majority opinion held that petitioner’s alleged defamation, a typical state court claim, was not actionable under the Due Process Clause[2] and 42 U.S.C. § 1983.[3] The procedural guarantees of the Due Process Clause could not be the source for a body of general federal court law. The Court also found that respondent’s injury to reputation was not specially protected by § 1983 and the Due Process Clause. Damage to reputation, alone, apart from some more tangible interests, was not sufficient to invoke the protection of the Due Process Clause. Further, the police chief did not deprive respondent of any state-provided right, and respondent’s case was not within the constitutional zone of privacy. The Court reversed the judgment.[4][1]

Justice Brennan wrote the dissenting opinion which was joined by Justice Marshall and which Justice White concurred in part. Justice Brennan pointed out that the majority’s opinion was inconsistent with the Court’s prior case law and was unduly restrictive in its construction of the Bill of Rights.[1]

Justice Brennan pointed out that the majority misread the precedence in Adickes v. S. H. Kress & Co.[5] which they believed supported the idea that the existence of a state remedy (such as a cause of action for defamation) would be relevant to the determination whether there is a separate cause of action under 42 U.S.C. § 1983 citing Monroe v. Pape[6] and McNeese v. Board of Educ.[7] which clarified that the federal remedy is supplementary to the state remedy and that the state remedy need not be first sought and refused before the federal one could be invoked.[7]

Justice Brennan further points out that the majority “by mere fiat and with no analysis, wholly excludes personal interest in reputation from the ambit of “life, liberty, or property” under the Fifth and Fourteenth Amendments, thus rendering due process concerns never applicable to the official stigmatization, however arbitrary, of an individual” adding that “The logical and disturbing corollary of this holding is that no due process infirmities would inhere in a statute constituting a commission to conduct ex party trials of individuals, so long as the only official judgment pronounced was limited to the public condemnation and branding of a person as a Communist, a traitor, an “active murderer,” a homosexual, or any other mark that “merely” carries social opprobrium” further pointing out that “The potential of [the majority’s holding] is frightening for a free people.” and that it finds no support in relevant constitutional jurisprudence.

The Court previously held in Meyer v. Nebraska that “Without doubt, [liberty] denotes not merely freedom from bodily restraint, but also the right of the individual . . . generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.”[8]

In a concurring opinion in Rosenblatt v. Baer, Justice Stewart pointed out that the individual’s right to the protection of his own good name…reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.”[9]

Justice Brennan also points out that the majority essentially ignored the case of Jenkins v. McKeithen,[10] a case closely akin to the factual pattern of the current case which was also about an action brought under § 1983, and recognized that the public branding of an individual implicates interests cognizable as either “liberty” or “property” and held that such public condemnation cannot be accomplished without procedural safeguards designed to eliminate arbitrary or capricious executive action.

Justice Brennan went on to say

I have always thought that one of this Court’s most important roles is to provide a formidable bulwark against governmental violation of the constitutional safeguards securing in our free society the legitimate expectations of every person to innate human dignity and sense of worth. It is a regrettable abdication of that role and a saddening denigration of our majestic Bill of Rights when the Court tolerates arbitrary and capricious official conduct branding an individual as a criminal without compliance with constitutional procedures designed to ensure the fair and impartial ascertainment of criminal culpability.

TFG says:

Re:

An important distinction with the case in question here is who the actor is. I can certainly see the arguments to have found in favor of the plaintiff in Paul v. Davis, and that’s partially because the reputational harm was perpetrated by an arm of the state – e.g. Law Enforcement. Law Enforcement’s special status in society, as an arm of Government, means accordingly increased restrictions.

For Nunes, the supposed harm is perpetrated by a private citizen, with accordingly far less weight and authority behind their words; i.e. it has different meaning when the Sheriff says “active shoplifter” than it does when Lois from the newsrag says it. And you can argue that Lois from the newsrag has different weight than Joe from the mechanic shop, but the Freedom of the Press comes into play there, as well, and does not change that Lois is a private citizen, while the Sheriff is note.

I Am Not A Lawyer, but in my layman’s opinion, these facts would be in favor of Nunes’ case here being decided differently from Paul v. Davis, had the court decided to go in favor of the plaintiff.

Rocky says:

Re: Re: Re:

Yeah, about that. Even with Australia’s wacky online-laws this little gem landed:

Google cannot be held liable for defamation simply for providing hyperlinks to other webpages, Australia’s highest court ruled today. By itself, providing a URL is not “participation in the communication of defamatory matter which happens to be at that address… In reality, a hyperlink is merely a tool which enables a person to navigate to another webpage,” the High Court of Australia ruling said.
Source: https://arstechnica.com/tech-policy/2022/08/linking-to-news-doesnt-make-google-liable-for-defamation-australia-court-rules/

Anonymous Coward says:

Re: Re: Re:2

Section 230 is the law of the land. One of the consequences of that law is that individual reputations get destroyed, with websites set up for that purpose, and even to harass neurodivergent people into suicide.

People are willing to believe what they find in search engines while the law immunizes them. What do you do with someone like that? You ignore them or you sue them, depending on how far they’ve crossed the line.

It’s not the target’s fault if they go on a job interview, after which the boss repeats what he finds online, and gets sued for doing do, with the lawyer who magically appears to defend them tied to the people who defamed the plaintiff. That is the reality created by that ruling.

If a decent person is lied about, they are not obligated to answer to lies, and if someone makes it known they actively search for those lies, again all one can do is ignore them.

If you want to celebrate a world where people can be lied about (or worse) without repercussion, and misinformation can bring civil war upon us, by all means do. If lies about COVID are so influential, lies about an individual are far worse.

This is not the final word, since the consequences of Section 230 have fueld a movement calling for its removal, but for now, it’s the law of the land.

I’d imagine your tone would be quite different if your side lost. Mine would not.

Rocky says:

Re: Re: Re:3

I’d imagine your tone would be quite different if your side lost. Mine would not.

I don’t really have a “side”, I just don’t like stupid and disingenuous people who don’t understand the consequences of what they want, even when its explained to them with very simple and short words.

The world isn’t a perfect place and it will never be as long we have assholes and people like you that argues for burning down the house because they came across an ant.

Anonymous Coward says:

Nunes wants to have its cake and eat it too.

Just imagine if we really had such a right? To do all kinds of evil and corrupt shit and be able to sue critics into silence! If having an unassailable reputation was actually a right then he could do his propaganda pushing and Trump Dick smooching in peace while not being called out on it!!!

Nah bruh, stop sucking off trump dick and pushing lies if you want a good reputation. Nunes reputation he earned it himself, not our fault he doesn’t like people telling the truth about his behavior. He made himself look bad with effort! It’ be a shame to not be able to recognize it!

Tanner Andrews (profile) says:

Hardly the other end of the state

the wrong court (in Palm Beach), because TMTG is actually based in Sarasota, which is at the other end of the state

Actually, Palm Beach and Sarasota are on opposite sides of the peninsula, which still might be farther than you think especially since you have to go around the big lake.

Pensacola would be the other end of the state. That would be an all-day drive each way.

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