Devin Nunes Asks Appeals Court To Invalidate Bedrock Supreme Court 1st Amendment Ruling

from the protect-and-defend-the-constitution dept

A year and a half ago, Supreme Court Justice Clarence Thomas indicated that he thought that NY Times v. Sullivan was wrongly decided. This is perhaps the most important 1st Amendment ruling from the Supreme Court ever, and establishes the "actual malice" standard for defamation of public figures. There's more to it than this, but the ruling basically says that for it to be defamation of a public figure, whoever is making the statement should more or less know that the information they're passing along is false. It's a high standard, but that's in order to protect the 1st Amendment. Unfortunately, Thomas seems to think that it's time to revisit the issue:

We should not continue to reflexively apply this policy driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.

Of course, if we go back and "carefully examine the original meaning of the First and Fourteenth" Amendment, it's possible one could conclude that all of defamation law violates the 1st Amendment in suppressing speech (the 14th Amendment part just extends the 1st Amendment restrictions beyond Congress to state laws as well). But still, as we discussed at the time, this was surprising from Thomas, as there seems to be basically no interest anywhere else in revisiting the NYTimes v. Sullivan ruling. It's not like other instances where you have a bunch of people itching to revisit old cases.

The question, then, is whether or not anyone would take up Thomas's publicized desire to revisit this standard. And apparently he's found a taker in... Rep. Devin Nunes. As you'll recall, Devin Nunes has been filing a series of SLAPP suits against the media and his critics. The cases haven't been going well for him at all. A couple of months ago, a judge easily tossed out one of Nunes' cases. This one, filed in Iowa (a state without an anti-SLAPP law) against Esquire magazine and reporter Ryan Lizza over a great article, "Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret.

As the judge pointed out, nothing in the complaint alleges anything possibly 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[.]”...

Nunes and his lawyer, Steven Biss, have since appealed that ruling to the 8th Circuit appeals court (first noted by Nunes' hometown Fresno Bee, whose parent company Nunes is suing in a different case). The full appeal is not yet public (for reasons I don't understand it shows in the docket, but is not available to download). What is available, however, is a Designation and Statement of the Issues, which at least details what Nunes will be arguing in the appeal. And the key point? They're attacking the NYT v. Sullivan standard:

1. Did the District Court follow the proper standard in evaluating Nunes’s amended complaint or did the District Court view the amended complaint in a light most favorable to the Defendants?

2. Is New York Times v. Sullivan, 376 U.S. 254 (1964) good law? Does the United States Constitution require public figures to satisfy an actual-malice standard in state-law defamation suits? Should Sullivan be reconsidered and overturned?

3. Did the District Court err in applying Sullivan in this case?

4. Did Nunes plausibly allege that the Defendants published the Article with actual malice?

Those are the first four of 14 issues with the other issues basically saying that even if Lizza's articles don't state any defamatory facts, Nunes wants the court to say that "rhetorical questions" in the article "imply the existence of defamatory facts." All of this seems unlikely to be successful. Extremely unlikely.

In general, courts will avoid dealing with deeper constitutional questions, especially when cases can be dealt with in a more straightforward manner, and this case can be (and was) easily dismissed because nothing in the article is a defamatory statement of fact. And, of course, it's not for an appeals court to tell the Supreme Court that its earlier ruling was "bad law." Of course, the goal here seems to be to get the Supreme Court to revisit NYT v. Sullivan, as Thomas as suggested is necessary. So, chances are they know this is a loser in the appeals court, but are hoping that they can then appeal it to the Supreme Court later. That... also seems unlikely to work. While Thomas has indicated he's interested in revisiting this standard, it would be surprising if any of the other Justices agree. And it seems likely that the entirety of the media industry would blow its lid if this issue was up for revisiting at the Supreme Court.

But, really, this is quite telling. Nunes seems to think that he -- a public elected official -- should not have to face mean comments about himself. That's ridiculous. He's a public official. He should grow a thicker skin, not try to destroy the 1st Amendment because his ego can't take people highlighting his family trying to quietly hide the fact that they moved their farm from California to Iowa.

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Filed Under: 1st amendment, 8th circuit, actual malice, clarence thomas, defamation, devin nunes, esquire, free speech, nyt v. sullivan, ryan lizza, steven biss


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  • icon
    That One Guy (profile), 8 Oct 2020 @ 10:45am

    Same thing either way really

    Honestly I can see his point here, I mean why would you want a higher bar for defamation for public figures than your average joe, it's not like public figures have more power and reach, a greater potential impact on the people around them and might be tempted to sue anyone who said anything 'mean' about them to protect their power and position, resulting in a chilling of speech regarding people that most need a check on their behavior due to their potential impact.

    Nope, much like how it makes perfect sense to have the same laws for bikes as there are for airplanes since both of them are methods of travel it's only sensible for there to be the same standards for defamation for public figures as there are for your average person on the street, since in both cases it's a matter of speech.

    reply to this | link to this | view in chronology ]

  • icon
    z! (profile), 8 Oct 2020 @ 11:19am

    But what does his cow have to say about the matter?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Oct 2020 @ 11:22am

    I think y'all are missing the point. There are all sorts of defamatory conclusions to which the stated facts inexorably lead, for example:

    "Mad Cow" Nunes is the only member of his family too stupid to leap at the first chance to move from California to Iowa.

    Even the Nunes family is not willing to live in a state represented by MCN.

    The electorate could either vote Nunes out, or move to Iowa. Anyone wanting my advice as to which option to take, drop by my Ames office and have a chat.

    reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 8 Oct 2020 @ 2:42pm

    Impressively thin skin

    For some people, it truly is the principle of the thing. If SCOTUS lets him down, where does he go from there?

    Constitutional Amendment to repeal the First Amendment?

    Constitutional convention?

    Revolution?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 9 Oct 2020 @ 11:13am

      Re: Impressively thin skin

      As the possibilities you listed would require actual work I'm going to go with option #4: Go on another nationwide whine-a-thon(or just continue the current one) talking to anyone foolish enough to host him about how he's such a victim and how those liberal judges and the laws were stacked against him such that he never had a chance to see justice done.

      reply to this | link to this | view in chronology ]

      • identicon
        Talmyr, 10 Oct 2020 @ 5:53am

        Re: Re: Impressively thin skin

        There is also the #5 Trump method, whine and dog-whistle enough in the hope that one of their idiot fans goes all Charlie Hebdo on the 'enemy'.

        reply to this | link to this | view in chronology ]

    • identicon
      NickM, 10 Oct 2020 @ 10:22pm

      Re: Impressively thin skin

      Well, he is revolting.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    HamedRanjbari (profile), 9 Oct 2020 @ 12:40am

    صنایع دستی

    reply to this | link to this | view in chronology ]

  • icon
    SteveG (profile), 9 Oct 2020 @ 2:38am

    A question about US defamation

    This is just a question so I understand, not a veiled suggestion of what should happen:

    Given that the QAnon conspiracy is accusing public figures of multiple crimes - e.g. child abuse - do the public figures still need to meet an actual malice standard to sue for defamation?

    Legally, is there anything stopping Tom Hanks try take down QAnon by suing anyone who posted that he was involved in child abuse? I realise that there are all sorts of practical things that would get in the way, but I'm just wondering if he could prevail in court.

    Once again - I am not suggesting this. I'm not from the US and just curious.

    reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 9 Oct 2020 @ 7:45am

      Re: A question about US defamation

      The answer is yes, public figures still need to a statement meet the actual malice standard to be successful in a defamation suit over that statement. There are no real exceptions to that, nor is there any legal reason for the QAnon conspiracy theories to change that. Some claims may meet the “actual malice” standard; most or all of them probably don’t. Either way, that doesn’t change the justifications underlying the current standards for defamation of a public figure.

      That said, they can still sue over it; the suit is just doomed to failure if they fail to plead/prove actual malice.

      Tom Hanks and/or his lawyer(s) are likely aware of this, so it is unlikely that they will sue over the accusations made by QAnon-ers, at least unless they feel they have a really strong case that the statements are both false statements of fact and made with actual malice. Well, that and Tom Hanks is a fairly nice and chill guy (at least in public) who’s (probably) willing to just dismiss the accusations as nonsense not worth the time and money to deal with in such a heavy-handed way.

      I understand that many countries do things differently, so I accept that your question was indeed asked out of pure curiosity rather than advocacy for the actual malice requirement to be overturned or something like that. As such, I’ll (briefly) summarize the basics of why the actual malice standard exists.

      Simply put, public figures are expected to be subject to more public scrutiny than private figures, and as such, the founders would want to encourage even more robust debate over such figures. This is especially true of those who willingly and/or knowingly step into the public eye, like celebrities and politicians. Public figures also have better access to alternative means of combatting false information about them, so they don’t have to resort to legal action to fight back. I believe there were other justifications given in the opinion that established the standard and subsequent opinions on the issue, but that seems like a decent enough summary.

      reply to this | link to this | view in chronology ]

      • icon
        SteveG (profile), 10 Oct 2020 @ 9:19am

        Re: Re: A question about US defamation

        Thanks very much. I figured that Tom Hanks wouldn't pursue such action even if he could. After all, thanks to the Streisand effect, he would lose even if he won. Also, his generally nice and chill persona is why I picked him as my example.

        I could swear that I saw somewhere that the actual malice standard no longer applied in the case of criminal activity, but I'm perfectly comfortable with being proven wrong.

        I live in the UK, where our libel laws are... mental. I think that an actual malice standard generally makes more sense.

        reply to this | link to this | view in chronology ]

  • identicon
    Bobvious, 9 Oct 2020 @ 6:13am

    Bedrock Supreme Court 1st Amendment Ruling

    Nu-nes. Devin Nu-nes
    Has an Iowa farming family
    In the town of Sibley
    And he's gonna sue the Fresno Bee

    Devin Nunes' Mom and also Cow.
    Are the ones he wants to unmask now.

    Suing Ryan Lizza
    And Esquire magazine
    For things he says are mean
    He's gonna waste more time.
    (LIzza!)

    reply to this | link to this | view in chronology ]


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