Unimpressed Judge Tosses One Of Devin Nunes' SLAPP Suits Against The Washington Post

from the begone dept

Back in March, Devin Nunes filed yet another of his many, many SLAPP suits. This one was against the Washington Post and reporter Shane Harris. As we noted at the time, the lawsuit was mostly performative, and had no real legal argument. After first being transferred to the appropriate venue, last week the federal court in DC easily tossed the case noting that Nunes failed to plead anything actually defamatory.

The Complaint contains two related counts: The first claims that Defendants defamed Plaintiff; the second claims that Defendants conspired with House Democrats to defame him.... The Post argues that both counts should be dismissed for failure to state a claim.... As explained below, the court agrees. And because Plaintiff’s proposed amendments fail to cure the Complaint’s fundamental defects, the court also denies Plaintiff’s Motion for Leave to File an Amended Complaint.

To see just how badly Nunes's claims failed, the judge even notes that Nunes and his lawyer Steven Biss tried to say that the first claim was "defamation per se," but as the court notes, that's not actually what they claimed. It's kind of stunning how frequently people assume that "defamation per se" means "obvious defamation," which often translates into "obviously that was really mean." But... that's not what it means. The specifics of defamation per se differ depending on local defamation laws, but it generally only matters for determining damages, not whether or not something is actually defamatory (or really mean). It's just that if you can show defamation per se (which is generally limited to a few categories of defamation that would be seen to obviously undermine someone's reputation) then you don't have to show damages -- rather, damages are assumed.

But, as the judge notes here (and I'll just say, it's probably not a good start when a judge starts a ruling by noting that the thing you argued was your first claim was not what you claimed it was), they didn't actually plead defamation per se:

Although Plaintiff styles the first count as “defamation per se,”... his claims are more appropriately considered defamatory implication claims. “[D]efamation by implication stems not from what is literally stated, but from what is implied.” White v. Fraternal Order of Police, 909 F.2d 512, 518 (D.C. Cir. 1990). Plaintiff does not challenge the substantial truth of any statement in the Article. ... Rather, he alleges that “[t]he defamatory gist of the [Article] is that Plaintiff lied to and deceived the President of the United States[.]”... Thus, Plaintiff contests not any assertion of fact contained in the Article but, rather, the meaning conveyed by those facts

And, as we've discussed regarding similar cases in the past, this is not how defamation law works at all. And that's especially true here.

To establish defamation by implication, the plaintiff must demonstrate (1) that “a defamatory inference can reasonably be drawn” and (2) that “the particular manner or language in which the true facts are conveyed” supplies “additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference.”... Here, the Complaint alleges two defamatory implications stemming from statements in the Article, neither of which can rationally be considered reasonable or intended or endorsed.

Plaintiff first alleges that Defendants defamed him by implying that he “lied to and deceived the President of the United States” by telling the President that Shelby Pierson “had given an exclusive briefing” to Representative Adam Schiff.... The Article does not, however, say that Plaintiff told the President that Pierson had delivered an “exclusive briefing” to Representative Schiff. It reports only that “Trump erroneously believed that Pierson had given the assessment exclusively to Rep. Adam B. Schiff.”... Plaintiff pieces that statement together with the Article’s subsequent statement that “Trump learned about Pierson’s remarks from [Plaintiff]” to allege the implication that Plaintiff lied to the President.... But such an inference is unreasonable. Even if one could plausibly read the Article as implying that Plaintiff’s communications with President Trump somehow contributed to the President’s erroneous belief, nothing in the Article suggests that Plaintiff affirmatively “lied to and deceived” the President. As the Post notes in its brief: “In the absence of any other explanation, the reasonable assumption is that there was a simple misunderstanding or miscommunication.” ... The defamatory implication Plaintiff asserts is further negated by the Post’s description of the briefing as one “offered to all members of the committee.”... That uncontested fact leaves the reader with the impression that the President’s “erroneous” understanding was the product of mistake or misunderstanding, not a falsehood uttered by Plaintiff. This view is reinforced by the Article’s description of Plaintiff as “a staunch Trump ally.”... Plaintiff points to no facts to support the inference that a “staunch ally” would deliberately deceive the President about the exclusivity of an intelligence briefing, when the fact of the briefing’s access to all members was so readily ascertainable. For these same reasons, the alleged defamatory inference cannot be considered either intended or endorsed by Defendants.

Not a good start. How about the next one?

Plaintiff’s second alleged implication fares no better. The Complaint highlights the Article’s statement that “Trump’s opinion of [Acting Director of National Intelligence Maguire] shifted . . . when he heard from a Republican ally about [Pierson’s] remarks.”... In Plaintiff’s view, that statement implies that Plaintiff sought “to ‘ruin’ Maguire’s chances of becoming the permanent intelligence chief.”... But as the Post points out, the Article explains that it was “[t]he intelligence official’s analysis and Trump’s furious response [that] ruined Maguire’s chances of becoming the permanent intelligence chief,” not Plaintiff’s characterization of Pierson’s remarks. ... As a result, any inference that Plaintiff sought to “ruin” Maguire’s chances for appointment as Director of National Intelligence is unreasonable. And assuming it were reasonable, Plaintiff provides no warrant for the idea that “the particular manner or language” of the Article’s statements supplies “additional, affirmative evidence suggesting that the [Post] intends or endorses” such an inference.

From there, the court goes even further, pointing out that even if there were some defamatory implication in the article (and again, there was not), it couldn't even come close to pleading "actual malice" standard necessary for defamation of a public figure. As is often the case in crazy SLAPP suits, rather than plead the actual points in the actual malice standard, Biss and Nunes chose to repeat performative nonsense and conspiracy theories about how mean the defendants were. The court points out that this is not how any of this works.

Instead of engaging with the Post’s arguments on actual malice, Plaintiff repeats various— largely conclusory—allegations from his Complaint. ... One set of allegations amounts to nothing more than the naked assertion that Defendants knew the statements in the Article were false.... This type of pleading, which offers no more than “labels and conclusions” and a reference to the relevant legal standard, does not satisfy Rule 8. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555); see also id. (noting that a complaint does not suffice “if it tenders naked assertions devoid of further factual enhancement” (cleaned up)).

Another set of allegations boils down to the claim that Defendants published the Article due to animus against Plaintiff and others.... Besides the fact that these allegations are similarly conclusory, “caselaw resoundingly rejects the proposition that a motive to disparage someone is evidence of actual malice.” ...

Plaintiff also peppers his opposition brief with several stray allegations that do nothing to move the needle. First, he cites his allegation that, pre-publication, Defendants initially represented that Plaintiff and the President met at the White House on February 13, 2020, even though Defendants did not ultimately include that inaccuracy in the Article.... The court struggles to understand how a decision not to publish an inaccurate statement supports the claim that Defendants knowingly published false statements in the Article. If anything, Defendants’ attempted verification and subsequent exclusion of the inaccurate statement suggests the opposite. Next, Plaintiff contends that Defendants “abandoned all journalistic standards and integrity . . . in writing, editing, and publishing the [Article].”... Yet Plaintiff nowhere identifies the “journalistic standards and integrity” that the Post purportedly violated. He cites Gilmore v. Jones for the general proposition that a “failure to investigate or observe journalistic standards, although not determinative, is relevant to the actual malice inquiry,” ... But in Gilmore itself, the departure from journalistic standards was a failure to seek comment... the opposite of what happened here.... Finally, Plaintiff references his allegation that Defendants knew he was in Tulsa, Oklahoma, for a campaign event on February 14, 2020, the day after the classified briefing. He maintains this fact shows that he could not have possibly advised the President about the briefing. ... Although his allegation includes a specific fact that might bear on Defendants’ subjective knowledge, it does not conflict with what the Post reported in the Article. As the Post notes, “[t]he Article does not report when President Trump learned of the briefing from [Plaintiff] (or how) . . . [Plaintiff] could have conveyed the information to President Trump on a different day[.]” ... The allegation, therefore, does not support Plaintiff’s claim that the Post knew that anything it reported in the Article was false

Nunes' and Biss' "common law conspiracy" claim fares no better because, as again is so often the case in SLAPP suits, all these other claims are just attempts to claim defamation under another name.

The court then rejects Biss' attempt to file an amended complaint noting that nothing in the proposed complaint could solve any of this.

Here, the court concludes that Plaintiff’s amendments would be futile because they fail to cure the defects explained above. For one, the Amended Complaint contains no further allegations that would satisfy the pleading requirements for defamation by implication.... Moreover, the Amended Complaint does nothing to address Plaintiff’s inability to plead actual malice. Instead, it repeats the same litany of conclusory or otherwise insufficient allegations.... Plaintiff invites the court to reconsider the actual malice standard established in New York Times v. Sullivan... , but for obvious reasons, the court cannot do so, see Agostini v. Felton, 521 U.S. 203, 237 (1997) (indicating that lower courts should “leav[e] to th[e] [Supreme Court] the prerogative of overruling its own decisions”).

Of course, Nunes may appeal and waste more of the Washington Post's time and money. And he still has his other SLAPP suit against the Washington Post that was just filed last month.

It truly is impressive just how many bad SLAPP suits Devin Nunes has filed. Considering that he's repeatedly expressed his support for "free speech" and the 1st Amendment, as well as complained about "frivolous litigation," it really is worth noting that he is alone among elected officials in Congress to file so many lawsuits attacking the free speech of the media and his critics.

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Filed Under: 1st amendment, actual malice, anti-slapp, defamation, defamation per se, devin nunes, free speech, shane harris, slapp, steven biss
Companies: washington post


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  • identicon
    Anonymous Coward, 28 Dec 2020 @ 9:52am

    thanks, Mike. that's some of the best news i've read all year!

    when does it end? he has to pay all parties court costs? he loses his seat? his family loses the farm?

    "It truly is impressive just how many bad SLAPP suits Devin Nunes has filed. Considering that he's repeatedly expressed his support for "free speech" and the 1st Amendment, as well as complained about "frivolous litigation," it really is worth noting that he is alone among elected officials in Congress to file so many lawsuits attacking the free speech of the media and his critics. "

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

  • icon
    Thad (profile), 28 Dec 2020 @ 10:09am

    But... that's not what it means. The specifics of defamation per se differ depending on local defamation laws, but it generally only matters for determining damages, not whether or not something is actually defamatory (or really mean). It's just that if you can show defamation per se (which is generally limited to a few categories of defamation that would be seen to obviously undermine someone's reputation) then you don't have to show damages -- rather, damages are assumed.

    But that is relevant to determining whether or not something is actually defamatory, because a statement can only be defamatory if it causes harm.

    Nonetheless, it's only one of several criteria required for a statement to be defamatory.

    A false statement of fact that causes no harm is not defamatory. A true statement, or a statement of opinion, that causes harm is also not defamatory. A statement has to be factual, false, and damaging in order to be defamatory (and also has to meet the actual malice standard if directed at a public figure). So, to that end, if a statement falls into a defamation per se category, that means the plaintiff doesn't have to prove harm, but still has to prove the other criteria necessary for a defamation determination.

    An example I heard recently was on the All the President's Lawyers episode about Jacob Wohl's false accusation that Elizabeth Warren had had an affair. Ken White noted that, if Warren wanted to sue Wohl for defamation, she likely wouldn't have to prove harm, because the standards for defamation per se in most jurisdictions are on the dated side and include insulting a woman's virtue. In other words, if Warren had chosen to sue Wohl, she'd likely have him dead to rights; he very definitely made false statements of fact that he knew were false, and because of the nature of the allegations (and some rather antiquated legal standards), she wouldn't have to prove that she'd suffered any harm as a result.

    Of course, while Warren would have had a sound legal case, it would have been foolish to pursue it; she'd have likely prevailed in court but in the meantime she'd have Streisanded the fuck out of Wohl's silly and easily-debunked accusations. She wisely chose to barely even acknowledge them.

    But bringing it back to Nunes and Biss, as you say, they're not even using "defamation per se" correctly. They're using it to mean "by implication", which is not what it means. (I remember there used to be a poster here who was very impressed with the "defamatory by implication" language. Shockingly, it seems that particular poster did not actually know very much about defamation law.)

    Nunes and Biss have satisfied none of the standards required for a defamation claim -- no proof of harm, no false facts, no actual malice. Even if they were right in their defamation per se claim -- and they're not -- the suit would have failed on the other requirements.

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

  • icon
    That One Guy (profile), 28 Dec 2020 @ 10:35am

    'When I use a word it means what I define it to mean.'

    Considering that he's repeatedly expressed his support for "free speech" and the 1st Amendment, as well as complained about "frivolous litigation," it really is worth noting that he is alone among elected officials in Congress to file so many lawsuits attacking the free speech of the media and his critics.

    It's all a matter of what definitions you're using with people like that. He's in favor of 'free speech' to the extent that it's speech he says/agrees with, and he's against 'frivolous litigation' to the extent that you define that as 'legal actions brought by people he doesn't like.'

    Change up the definitions and he goes from raging hypocritical liar to entirely consistent, albeit entirely consistent scum.

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

  • identicon
    David, 28 Dec 2020 @ 11:08am

    Room for optimisation

    Frankly, rather than tossing Devin Nunes' neverending multitude of lawsuits it would appear a lot more efficient to toss Devin Nunes. Is there some registry for the elevation of various court rooms?

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

    • icon
      Stephen T. Stone (profile), 28 Dec 2020 @ 12:45pm

      I get the feeling people like Nunes have never had their face punched, literally or metaphorically, for saying or doing stupid bullshit. That’s why they think they’re always right and their bullshit speech/behavior should have no consequences.

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

  • identicon
    Anonymous Coward, 28 Dec 2020 @ 1:12pm

    If devin Nunes wants Defamantion per Se:

    Devin Nunes is allegedly 100% NOT a cannibal paedophile who eats orphan flesh and becomes erect watching the light die in their eyes.......

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

  • identicon
    Anonymous Coward, 28 Dec 2020 @ 4:08pm

    Your boy just keeps winning doesn't he out_of_the_blue?

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

  • icon
    Naxosoft (profile), 21 Jan 2021 @ 3:00am

    Your Article is Very nice

    We suggest This link as well : https://www.naxosoft.com/

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


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