Devin Nunes Gets Small, Most Likely Temporary, Victory Against MSNBC, While Also Suing CNN Again
from the you-don't-need-to-sue-them-all,-devin dept
You might have seen some headlines recently suggesting that former congressional representative and current flailing social media CEO (and serial suer of the media) Devin Nunes had some sort of legal victory over Rachel Maddow and MSNBC. And he did get a very, very small victory while piling up more losses at the same time. Law & Crime (which consistently does excellent work) had a much more accurate headline noting that the court actually dismissed all but one claim in his lawsuit. And you could actually go beyond that. There were three separate statements that were claimed to be defamatory, and two were dismissed outright, and the third actually consisted of three separate factual claims, two of which were also dismissed. So it was basically just one-third of one claim that survived.
And, even that oversells the victory, because the court basically let the case move forward because the one remaining statement of fact wasn’t backed up by a source, even though MSNBC has one. But, the problem was that MSNBC didn’t cite that source in Maddow’s report. And, at this stage of the case, MSNBC can’t bring in additional evidence like that. So, the case moves forward on one tiny part where Maddow/MSNBC could potentially still prevail on a failure to show actual malice. And, even if actual malice was shown, Nunes would still have to show damages caused by this one statement, and, uh, how is he gonna do that? He still got his CEO gig.
Meanwhile, a week and a half earlier, Nunes also sued CNN (again) and Jake Tapper. Remember, Nunes just recently lost another lawsuit against CNN, over a different defamation claim. But apparently he and his lawyer, Steven Biss, believe in a “if at first you don’t succeed, try, try again” strategy. The lawsuit is pretty ridiculous, but we’ll get there.
First, let’s go over the ruling in the MSNBC case. I highly recommend reading the ruling, which is well written, and much more clearly (and concisely!) explained than many other rulings we see. I’ll quote directly from it summarizing the key events at issue:
On December 11, 2019, a package was delivered to the House Permanent Select Committee on Intelligence (“Intelligence Committee” or the “Committee”), of which Nunes was Ranking Member. (2nd Am. Compl’t ¶ 13.) It was addressed to Nunes from Andriy Derkach and was handled solely by Nunes’ staff and delivered, unopened, to the offices of the FBI. (Id.) That same day, Nunes sent a letter to Attorney General William P. Barr advising him of the receipt of the package. (Id.)
On July 29, 2020, the Intelligence Committee held an open business meeting. (Id. at n.5.) During this meeting, Representative Sean Maloney asked Nunes two questions. (Id.) First, Maloney asked if Nunes had received materials from Derkach. (Id.) Second, Maloney asked if, in the event that Nunes had received materials, whether he was prepared to share them with the Committee. (Id.) When asked if he wished to respond to the questions, Nunes declined
In early 2021, the National Intelligence Council then declassified a report that included some of these details, specifically around the packages being sent to Nunes and others. Maddow’s report, in somewhat typical overstated fashion, covered this and made some statements about Nunes:
In the March 18, 2021 broadcast of The Rachel Maddow Show, host Rachel Maddow discussed the declassified DNI Report as part of a longer segment about Derkach, Russian disinformation and election interference.1 (Id.) Maddow referred to the report and discussed the package addressed to Nunes, as well as the interaction between Nunes and Maloney at the Intelligence Committee meeting. (Id.) Maddow said that Nunes had accepted a package from Derkach and refused to answer questions about the package. (Id. ¶ 2.) Maddow also said that Nunes refused to hand the package to the FBI. (Id.)
Now, you’ll probably immediately spot the problem. From all reports, Nunes’s staff did immediately hand over the package to the FBI (and Nunes separately alerted to the Attorney General to it). So, that does seem like a false statement of fact, which could (in theory) be defamatory.
Of course, this is a Nunes/Biss production, so they overclaimed other stuff that they also said was defamatory:
The Complaint alleges that three statements from a segment of the March 18, 2021 episode of The Rachel Maddow Show are false and defamatory. (2d Am. Compl’t ¶ 2.) The statements are as follows:
Statement One: “Andriy Derkach is sanctioned by the U.S. government as a Russian agent. He is singled out by name by the Director of National Intelligence as someone under Vladimir Putin’s direct purview who helped run this organization targeting our election last year. Congressman Nunes accepted a package from him. What was in it?”
Statement Two: “Congressman Nunes has refused to answer questions about what he received from Andriy Derkach. He has refused to show the contents of the package to other members of the intelligence community. He has refused to hand it over to the FBI which is what you should do if you get something from somebody who is sanctioned by the U.S. as a Russian agent.”
Statement Three: “Still, the Republicans have kept Mr. Nunes on as the top Republican on the intelligence committee. How does that stand? How does that stay a thing?”
So, right. Statement one is substantially true. Nunes tried to argue that it wasn’t accurate to say he “accepted” the package, but the judge isn’t having it.
In the Complaint, Nunes confirms that the package was both addressed to him and received by his staff members. (2d Am. Compl’t ¶ 13.) His staff member delivered the package to the FBI. (Id.) And Nunes personally wrote to the Attorney General to advise him of the receipt of the package. (Id.) The statement that Nunes “accepted” a package from Derkach compared with the actual truth as stated in Nunes’s complaint would not have a different effect on the mind of a viewer. Therefore, Statement One is privileged against a defamation claim because, based on the Complaint’s own allegations, it is substantially true.
Statement three is not defamatory. I mean, what even is the false statement of fact in there?
Statement Three cannot be classified as actionable statements of fact or actionable mixed opinion. When weighing the factors, the specific language does not have a precise meaning, is not capable of being proved or disproved, and when considering the context, the average viewer would not reasonably believe the statements to be based on undisclosed facts. See id. at 105. Considering the immediate context of the questions, of political commentary on a political program, such statements and rhetorical questions would not be viewed by a reasonable person as expressing or implying facts about the plaintiff. The Court therefore concludes that Statement Three is privileged as pure opinion and not actionable.
That leaves statement two which the court breaks down into the three separate claims, find that two of them are also substantially true.
The first asserted fact, that Nunes “has refused to answer questions about what he received from Andriy Derkach,” is not actionable as defamation because it is substantially true. As described in the Complaint itself, during the House Intelligence Committee meeting of July 29, 2020, Nunes “stated that he did not wish to respond” to Maloney’s questions both because a response “risked disclosing classified information” and because the questions were a “completely out-of-order, coordinated stunt.” (2d Am. Compl’t ¶ 13 n.5.) A comparison between the complained-of language and the truth as described in Nunes’s complaint would not have a different effect in the mind of a reasonable viewer. To the extent that Nunes asserts defamation based on the statement that he “has refused to answer questions about what he received from Andriy Derkach,” the claim will be dismissed
And, while Nunes argues that claiming he wouldn’t share the contents with the “intelligence community” is false because it was referencing the House Intelligence Committee, which is technically not the intelligence “community” (but rather its overseer), this slight misstatement by Maddow certainly doesn’t rise to the level of defamation:
The Court concludes that a reasonable viewer encountering the statement would not understand the technical distinction between the government entities that formally comprise the intelligence committee and the Intelligence Committee that is tasked with supervising those entities. The speaker also asserted that Nunes “refused to show the contents of the package to other members of the intelligence community.” (2d Am Compl’t ¶ 2; emphasis added.) A reasonable viewer would understand the speaker to be asserting that Nunes himself is personally a “member” of the intelligence community and that the “other members” included his Congressional colleagues. This description is consistent with the events of the Intelligence Committee proceeding. And while the Intelligence Committee is not technically part of the intelligence community, it performs a formal oversight role, and minor inaccuracies are “not serious enough to remove a party’s reportage from the protection of Civil Rights Law §74.” Misek-Falkoff, 300 A.D.2d at 216
So, that’s a lot of dismissed supposedly defamatory statements. All that leaves is the statement about not handing over the info to the FBI. Which, again, is false. But for it to be defamatory against a public figure, Nunes has to show actual malice, which (I will explain yet again) does not just mean that Maddow/MSNBC “dislike” Nunes, but rather they knew that the info was false, or had strong evidence suggesting it was false. This is a high bar, and frankly, I have trouble believing that Nunes clears it. He claims that Maddow/MSNBC knew it was false because there had been a Breitbart report that quoted another congressional representative claiming that Nunes had in fact turned it over to the FBI.
But that supposes that Maddow was familiar with the specifics of the Breitbart report (which is buried in the 18th paragraph). Seems difficult to argue that Maddow had knowledge of falsity based on that, but the court says, at this stage of the game it’s enough to move to the next stage and not dismiss the claim.
MSNBC argued that Maddow’s report was based on a Politico story that quotes an anonymous source saying that the package had not been handed over to the FBI. Notably, that Breitbart article is actually mostly about Republicans claiming that the Politico article in question was the result of a potentially illegal leak from the Democrats about this classified meeting. But, as the court notes, because Maddow didn’t specifically cite the Politico report, it can’t be used, at this stage, to argue against actual malice:
This Politico article is not cited or referenced in the Complaint, nor is it cited or referenced in the segment. Because the article goes beyond the pleadings and the materials integral thereto, it is not properly considered on a motion to dismiss. Goel, 820 F.3d at 559. On this bare record, the Court declines to convert the motion to one for summary judgment.
And, remember, the key difference between the motion to dismiss stage and the summary judgment stage is that with an MSJ, evidence can be submitted. So, this “victory” may not last long at all.
But, this should be a reminder to all journalists: when making statement of fact claims, cite your sources. Turns out it can be the difference between winning a motion to dismiss and a (much more costly) motion for summary judgment.
Anyway, now let’s move on to the Tapper/CNN suit. It’s… strange. It’s about a segment Tapper did about the attack on Paul Pelosi, and the Republicans’ response to the attack, which sometimes included spreading baseless conspiracy theories about it. Incredibly, the complaint lists five statements that it claims are defamatory, and ONLY ONE even mentions Nunes:
1 “He [referring to President Donald Trump], at least, did condemn the attack on Paul Pelosi, as did House Republican Leader Kevin McCarthy, as did Senate Minority Leader Mitch McConnell”
2 “But you know what, far too many other Republicans and Conservative leaders are out there instead spreading insane, offensive and false conspiracy theories, such as the complete and utter lie, the deranged smear that Paul Pelosi and the attacker, the man who hit him in the head with a hammer, were in a sexual relationship”
3 “It’s hard to fathom the kind of mind that hears of a tragedy, like what happened to 82 year-old Paul Pelosi, and decides to traffic in this filth. But, sadly, Donald Trump Jr. is hardly alone. Former Republican Congressman and Chairman of the House Intelligence Committee, Devin Nunes, who now runs Trump’s social media company, Truth Social, shared this Halloween image [link to truth] with the words, ‘at least this guy has his clothes on.’ Nunes also reposted this meme [link to retruth], using a poster for the gay romantic comedy Bros, twisting it into a smear of Paul Pelosi. And, again, the man who tried to bash Paul Pelosi’s head in with a hammer. Words fail.”
4 “What is wrong with these people?”
5 “In addition to being an inhuman and inhumane response to a tragedy, it’s a lie … Pelosi did not know the suspect.”
I mean, point one: I’m impressed at the sheer chutzpah of arguing “what is wrong with these people” is somehow a defamatory statement of fact about Devin Nunes. I mean, Biss’ lawsuits often have these nutty claims of how clear statements of opinion are defamatory, but this one is really up there on the list of most egregious.
And, even the one statement that does mention Nunes, only includes a statement about what Nunes shared on Truth Social. As far as I can tell, Nunes does not deny sharing the material Tapper claims he shared. Instead, Nunes argues that the episode “as a whole” subjected him to ridicule through “juxtaposition and omission of material facts,” but uh, dude, you still need to highlight actual false statements of fact, and the complaint does not get there.
Honestly, this complaint is so bad that it seems like the kind of thing that could lead to sanctions.
Meanwhile, it remains ironic that Nunes leads a social media site that claims to be all about “free speech” while he repeatedly sues critics and commentators for their free speech.