from the so-many-second-chances dept
It truly is incredible how many second chances the courts are willing to give lawyers who clearly seem to be filing vexatious SLAPP suits. The lawyer in Devin Nunes’ long list of SLAPP suits, Steven Biss, has a few other clients as well, though so many of them seem to be in the same Trumpist circles. The other thing they have in common is that Steven Biss seems to have no problem filing vexatious wasteful SLAPP suits to try to stifle speech. And these cases always fail. It really kinda makes you wonder (1) why anyone would hire Biss and (2) who’s paying for all of these failed lawsuits? This latest one is a follow-up to a case we covered a little over a year ago, in which Biss lost a case he filed on behalf of a Russian-born academic, Svetlana Lokhova, going after a Cambridge academic named Stefan Halper and a variety of media organizations.
As we explained last year, the case really stemmed from some news stories that came out soon after Michael Flynn was fired as National Security Advisor. A bunch of stories came out claiming that there were “concerns” about potential Flynn links to Russia, including some stories that mentioned a dinner that Flynn had with some people in Cambridge, including Lokhova. Lokhova blamed Halper as the source of these stories, which she claimed were defamatory (even though many of them didn’t even name her). As we noted, there is a Nunes/Lukohova connection in that Nunes referenced Lukhova as part of his bizarre conspiracy theory saying that Robert Mueller’s team should face criminal charges. Nunes seemed a lot more concerned about people accusing Flynn of stuff and then investigating it, than whether or not there was any truth to the claims.
Either way, the lower court tossed out the case, noting that most of the articles/statements in question were published over a year earlier, meaning that the statute of limitations had passed. As for the statements that were made more recently, they weren’t defamatory. The district court judge did call out Biss’ bad behavior in the case, but still opted not to issue sanctions against him.
Biss appealed, and the latest ruling is from the 4th Circuit basically saying everything the district court said all over again — including agreeing not to sanction Biss, even as the judges seem to recognize that he’s pursuing a garbage case (and that he has a history of this).
Once again, the court notes that statements made outside of the statute of limitations cannot be the basis for a defamation claim and, once again, rejects the idea that just because people tweeted links to those articles more recently that it counts as republication. As we’ve covered many times, it’s pretty widely settled that there’s a “first publication” rule, and the statute of limitations starts ticking when a story is first published. Linking to it does not restart the clock. The court even notes that the case that Biss tried to rely on to make this argument… says the opposite.
Appellant relies heavily on Stephen G. Perlman, Rearden LLC v. Vox Media, Inc., No. 10046, 2015 WL 5724838, at *19 (Del. Ch. Sept. 30, 2015) (denying a motion to dismiss a claim that alleged a defamatory statement was republished by a hyperlink reference because republication generally presents a question of fact). Appellant?s reliance on Perlman is misplaced for two reasons. First, the Superior Court of Delaware subsequently granted summary judgment on the issue, holding that a hyperlink directing readers to a previous article on the same website does not direct the previous article to a new audience, it merely reshuffles the existing audience. See Perlman v. Vox Media, Inc., No. N195C-07-235, 2020 WL 3474143, at *8 (Del. Super. Ct. June 24, 2020). That is precisely the case here. The original New York Times article that Appellant alleges was defamatory was hyperlinked in a later New York Times article. Thus, the hyperlink served as a reference for the New York Times? existing audience and did not direct the old article to a new audience. Second, the plaintiff in Perlman alleged that the text that contained the hyperlink was itself defamatory. Appellant makes no such allegation here. Nor could she credibly do so, given that the hyperlink is contained in the underlined portion of the following sentence: ?Mr. Halper?s contacts have prompted Republicans and the president to incorrectly accuse the F.B.I. of spying on the campaign.? J.A. 311. Clearly the text in which the hyperlink was contained bears no relationship to Appellant. Thus, Appellant?s attempt to rely on a factual dispute regarding whether the hyperlink constitutes republication fails.
Other people tweeting links to the articles also does not constitute republication. And, again, the court is not at all impressed with the case Biss thinks helps his cause:
Appellant further asserts that republication occurs each time a third party tweets an article, thus re-setting the statute of limitations and exposing the original publisher to liability. Notably, Appellant cites no cases that are directly on point. Instead, Appellant relies almost exclusively on Weaver v. Beneficial Finance Co., a Virginia Supreme Court decision from 1957. See 98 S.E.2d 687 (Va. 1957). In Weaver, the court analyzed whether sending an allegedly defamatory letter to the plaintiff?s employer constituted republication because any claim based on the original publication of the letter was time barred. Id. at 689?90. The Weaver court observed, ?It is well settled that the author or originator of a defamation is liable for a republication or repetition thereof by third persons, provided it is the natural and probable consequence of his act, or he has presumptively or actually authorized or directed its republication.? Id. at 690. The court qualified its observation by noting ?the original author is not responsible if the republication or repetition is not the natural and probable consequence of his act, but is the independent and unauthorized act of a third party.? Id. Here, Appellant argues that each third party tweet constitutes republication pursuant to Weaver because Weaver further observed that ?where the words declared on are slanderous per se their repetition by others is the natural and probable result of the original slander.?
Ignoring for a moment that Weaver was decided over 60 years ago, well before the ubiquity of the Internet, this issue can be resolved pursuant to the terms of Weaver itself because there the court recognized a distinction when applying republication rules ?to newspapers and magazines? as opposed to individuals. Weaver, 98 S.E.2d at 691 (citing Hartmann v. Time, 166 F.2d 127 (3rd Cir. 1947)). The citation to Hartmann is particularly significant because in Hartmann, the Third Circuit observed that with respect to newspapers, the ?single publication rule is the preferable one? because public policy and the freedom of the press command that ?newspapers and magazines which are published on a nationwide basis should not be subjected to the harassment of repeated law suits.? 166 F.2d at 134. This observation is consistent with the Armstrong court?s pronouncement that the ?rationale underlying the single publication rule? aims to ?avoid the overwhelming multiplicity of lawsuits that could result from defamatory statements contained in mass publications such as newspapers and magazines.? 2003 WL 1960685, at *2. If each third party tweet containing the article were to constitute a republication, the multiplicity of lawsuits assuredly would be beyond overwhelming.
As for the statements that were published within the statute of limitations, they also have myriad problems. First, it’s not clear that Biss sued the right party. One of the statements at issue was a series of tweets from Malcolm Nance, who was not sued. Instead, Biss/Lokhova sued MSNBC, where Nance is a contributor. And that runs into some problems:
However, even assuming arguendo that the tweets are defamatory, Appellant?s claim fails because she has not adequately pled facts that support holding NBCUniversal liable pursuant to the respondeat superior doctrine. ?[U]nder the traditional doctrine of respondeat superior, an employer is liable for the tortious act of his employee if the employee was performing his employer?s business and acting within the scope of his employment.? Parker v. Carilion Clinic, 819 S.E.2d 809, 819 (Va. 2018) (internal quotation marks omitted)….
The sole factual allegation supporting Appellant?s conclusory statement that Nance ?conducts the business of ?NBC/MSNBC?? on his Twitter account is that ?NBC/MSNBC? appears in Nance?s Twitter bio. J.A. 76. But viewed in context, this is not enough to give rise to apparent agency. ?NBC/MSNBC? appears at the end of a long list of credentials that are personal to Nance. Moreover, Nance?s username, profile picture, and banner contain no mention of NBC, and the profile contains a link to a website that is operated by an organization for which Nance serves as the executive director. Finally, one of the allegedly defamatory tweets appears in a thread of tweets that begins with Nance promoting his personal book. Thus, the only reasonable conclusion is that Nance was operating his Twitter account in his personal capacity and not with the actual or apparent authority of NBCUniversal. ?[C]onclusory language in the complaint? does not alter this conclusion and cannot ?establish vicarious liability.? Garnett, 892 F.3d at 146. Therefore, we affirm the district court?s dismissal of Appellant?s defamation claims based on tweets authored by Nance.
There’s also a Washington Post article, but there’s a big problem with that one: it’s not even remotely defamatory:
The amended complaint alleges two defamatory false statements in the Post Article: (1) that ?[Appellee] Halper ?attended? . . . the February 2014 dinner?; and (2) that ?[Appellee] Halper and Dearlove were disconcerted by the attention the then-DIA chief showed to a Russian-born graduate student.? J.A. 75. We can quickly dispose of any claim regarding the first statement because it is plainly ?of and concerning? Appellee Halper alone and says nothing about Appellant, let alone anything defamatory. Schaecher, 772 S.E.2d at 598. Moreover, the dinner in question would have to be particularly extraordinary for merely noting one?s attendance to carry the required ?defamatory sting.? Id. at 594.
Regarding the second statement, we conclude that it cannot be reasonably read to defame Appellant, either directly or through implication or innuendo. The statement expresses that Appellee Halper and Dearlove ?were disconcerted by the attention? General Flynn showed to an unnamed graduate student. Even if we infer the unnamed graduated student is Appellant, it says nothing of her behavior toward General Flynn — it only addresses his behavior toward her. This is especially relevant given the article included a disclaimer reporting, ?[T]he student and a Defense Department official traveling with Flynn have denied that anything inappropriate occurred.? J.A. 75.
So, uh, there’s nothing defamatory in there at all.
Because Biss is Biss, he also tried to toss in the kinds of excess claims that you see in too many bogus defamation SLAPP suits these days: tortious interference and civil conspiracy. The court dumps each easily.
Then we get to the sanctions section, and, at the beginning, it sounds like the court really is thinking about finally sanctioning Biss for his bad behavior. They’re certainly aware of it.
Of note, this is not the first time attorney Biss?s litigation conduct has earned reprimand. His history of unprofessional conduct is long. See, e.g., Nunes v. Cable News Network, Inc., No. 3:19-cv-889, 2020 WL 2616704, at *2 (E.D. Va. May 22, 2020) (?It is with chagrin that the Court must begin to address this motion by observing that Plaintiff engages in ad hominin attacks against CNN and others in the Amended Compliant which the Court cannot tolerate.? (alterations and internal quotation marks omitted) (quoting Steele v. Goodman, No. 3:17-cv-601, 2019 WL 3367983, at *3 (E.D. Va. July 25, 2019))); see also Nunes v. Lizza, 486 F. Supp. 3d 1267, 1299?1300 (N.D. Iowa 2020) (requiring Biss to file ?a second amended complaint . . . stripped of all such spurious allegations? and directing Biss ?not to file any further public pleadings referencing such matters without first obtaining leave of the Court and showing that there is a good faith factual basis for the allegations and that they are relevant and material to some matter at issue in this litigation?). In fact, attorney Biss had his license suspended in 2009 for unprofessional conduct including breaching fiduciary duties and violating federal securities law. See Va. State Bar v. Biss, No. CL07-1846 (Va. Cir. Ct. Nov. 26, 2008). And, even during his suspension period, attorney Biss failed to be forthright about his suspension status with an opposing party when engaging in negotiations on behalf of a client, resulting in an additional 30 day suspension of his license. See In re Steven Scott Biss, No. 09-032-078962 (Va. State Bar Disciplinary Bd. Nov. 3, 2009).
Basically, the appeals court says that choosing not to discipline Biss is well within the district court’s discretion:
The district court chastised attorney Biss for ?directing unprofessional ad hominem attacks at [Appellee] Halper and others,? noting that such behavior ?adds nothing but unnecessary heat to this litigation.? J.A. 331. But in the end, the district court elected not to sanction attorney Biss at this point and denied the motion to sanction without prejudice. We agree with the district court?s observations and endorse the court?s reprimands concerning inappropriate ad hominem attacks. We conclude, however, that the district court acted within its discretion because we are not ?left with the definite and firm conviction that a mistake has been committed.? Six v. Generations Fed. Credit Union, 891 F.3d 508, 519 (4th Cir. 2018). To the contrary, the record establishes that although the district court did ?not condone the [litigation] tactics? at issue, it elected to exercise caution and employ a wait-and-see approach based on post-judgment litigation.
And thus, Biss escapes further sanction yet again. Given his activities over the past few years, it does not seem like Steven Biss has any intention of changing his behavior. It seems quite likely that we will continue to see him filing frivolous and vexatious SLAPP suits that seek to silence journalism and commentary about his crew of Trump-loving clients.
All this, of course, is just yet another reminder that every state needs better anti-SLAPP laws and we need a federal anti-SLAPP law to help stop these lawsuits and put the filer of them on the hook for the legal fees of defendants.