Federal Appeals Court Revives Nunes’s Defamation Lawsuit Finding Reporter’s Retweet of Article Could Constitute Actual Malice

A federal appeals court has revived a portion of Representative Devin Nunes’s defamation lawsuit that was dismissed last year finding that the defendant’s tweeting a link to the allegedly defamatory article after the lawsuit was filed could satisfy the actual malice requirement.

In September 2018, Esquire magazine published an article about Representative Nunes and a dairy farm in Iowa owned by Nunes’s family. Political journalist, Ryan Lizza, authored the article titled “Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret” (online version) and “Milking the System” (print version). The print version included a caption with two questions about Nunes: “So why did his parents and brother cover their tracks after quietly moving the farm to Iowa? Are they hiding something politically explosive?”

Nunes took issue with a number of claims in the article. In his defamation complaint filed in 2019, Nunes identified 11 statements in the article that he alleged were defamatory. Additionally, Nunes alleged that the article falsely implied that he “conspired or colluded with his family and with others to hide or cover-up” that the farm “employs undocumented labor.”

In August 2020, a federal judge in northern Iowa dismissed the case finding that none of the statements identified by Nunes were defamatory as a matter of law and that Nunes, as a public figure, had not met the high bar of showing that the magazine or Lizza had published the article with actual malice.

Nunes appealed the dismissal to the 8th Circuit Court of Appeals. On appeal the Court ruled that the district court correctly sided with the defendants in deciding that the allegedly defamatory statements failed as a matter of law. However, the Court sided with Nunes on his argument that the district court improperly dismissed his claims for defamation by implication. Defamation by implication occurs when the defendant either juxtaposes a series of facts to imply a defamatory connection between them or omits certain facts to create a defamatory implication.

On appeal Nunes argued that the article implies the existence of a “politically explosive secret” that he “conspired with others” to hide the farm’s use of undocumented labor. Nunes argued that the implication was false because he was not involved in the farm’s operations, and consequently had no knowledge of who the dairy farm hired. The district court found this insufficient to state a claim reasoning that no reasonable reader could draw that implication from the article. The 8th Circuit, however, disagreed.

The Court found that the district court incorrectly held that defamation by implication required the juxtaposition of facts to be found in consecutive statements. Because the statements that allegedly created defamation by implication were scattered throughout the article, the district court concluded that Nunes could not establish this element of his claim. This was an error, the Court concluded, as the inquiry is not whether the facts were right next to each other but whether the reader could “connect the dots” and arrive at the defamatory implication.

The Court also rejected Lizza’s arguments that the article constituted non-actionable opinion or rhetorical hyperbole protected by the First Amendment. The article itself belies this interpretation the Court concluded. It noted that the article was not an opinion piece but rather an investigative journalism piece based on Lizza’s investigation of the farm and presents his assertion that Nunes and his family tried to hide the family’s move to Iowa. A reasonable reader, the Court reasoned, would expect a piece of investigative journalism to convey facts, and the article’s “literary context” did not support the conclusion that the implication was merely opinion protected by the First Amendment.

The Court then turned to the other First Amendment implication in the case: actual malice. As the Court explained, because Nunes is a public figure plaintiff, he was required to allege that Lizza and the magazine printed the article with actual malice (i.e. with knowledge that it was false or with reckless disregard of whether it was false or not).

The district court found that Nunes failed to allege facts to support a finding that the defendants published the article with actual malice. Again, the Court disagreed with this conclusion and homed in on the fact that Lizza retweeted a link to the article after the lawsuit was filed.

This act, the Court noted, occurred after Nunes filed his lawsuit in which he expressly denied the article’s implication. Republishing the article after Lizza knew that Nunes denied knowledge of undocumented labor on the farm or participation in any conspiracy to hide it, the Court concluded, sufficiently alleges that Lizza published the article with actual malice.

In so ruling, the Court briefly touched on another core tenet of libel law: the single publication rule. Under this rule, any one edition of a book or newspaper, even if distributed to a multitude, constitutes one publication that may support only one cause of action. But the rule does not include separate aggregate publications on different occasions. The justification for this exception to the rule is that “the subsequent publication is intended to and actually reaches a new audience.”

In this case, the Court found that the complaint adequately alleged that Lizza intended to reach and actually reached a new audience by publishing a tweet about Nunes and a link to the article, justifying application of the exception to the single publication rule.

The Court’s full opinion is available here.

Lubin Austermuehle’s Elmhurst and Hinsdale defamation and slander lawyers have more than three decades of experience helping business clients unravel the complexities of Illinois and out-of-state defamation and First Amendment laws. Our Chicago slander, libel, and First Amendment litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. From offices in Elmhurst and Wilmette near Evanston and Highland Park, we serve clients throughout Illinois and the Midwest region. You can contact us online here or call us on our toll-free number at 833-306-4933 or locally at 630-333-0333.

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