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8th Circuit’s Bizarre Ruling In Devin Nunes’ SLAPP Suit Against Reporter Ryan Lizza

Rep. Devin Nunes has kept up his suing news organizations (and satirical internet cows). He has been mostly losing. Lately, we’ve been writing a fair bit about the lawsuit Nunes’ family has (using the same lawyer, Steven Biss) against reporter Ryan Lizza, which has gone somewhat off the rails. There’s been more nonsense since we last wrote about it, but I’m kind of waiting on the judge to actually rule before I go into the details.

Still, if you’ll recall, there were actually two separate lawsuits here. The one we’ve been writing about was filed by Nunes’ family. Nunes had filed a separate one on his own behalf but the judge correctly dismissed it as absolute nonsense, noting that nothing in it was directly defamatory towards Nunes. Nunes and Biss appealed and the 8th Circuit put out a truly bizarre decision (first pointed out by Josh Gerstein at Politico), which mostly upholds the lower court, but allows the case to continue against Lizza because of his tweeting. But even in upholding the lower court ruling, the judges go out of their way to make a really confused analysis of defamation law. The lower court found no defamatory implication in the story, but the appeals court says it’s there.

Based on the article’s presentation of facts, we think the complaint plausibly
alleges that a reasonable reader could draw the implication that Representative Nunes
conspired to hide the farm’s use of undocumented labor. See Manzari, 830 F.3d at
889; Stevens, 728 N.W.2d at 827. In reaching a contrary conclusion, the district court
relied on the location of the relevant facts in the article. The court determined that
the facts about Nunes conspiring to hide the farm’s move and the facts about the
farm’s use of undocumented labor were “scattered at disparate points” and thus not
“juxtaposed.”

But defamation-by-implication claims, like defamation claims generally, must
be analyzed by considering the article as a whole. Toney, 85 F.3d at 396. Although
the Iowa court in Stevens posited a defendant who “juxtaposes a series of facts,” 728
N.W.2d at 827 (internal quotation omitted), we do not believe the theory is limited
to situations in which the implication arises from, say, consecutive sentences. “It is
well settled that the ‘arrangement and phrasing of apparently nonlibelous statements’
cannot hide the existence of a defamatory meaning.” Church of Scientology of Cal.
v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984) (quoting Kapellas v. Kofman, 459 P.2d
912, 919-20 (Cal. 1969)). When a reader, “connecting the dots,” could reasonably
arrive at the implication, the author may be accountable. Elias v. Rolling Stone LLC,
872 F.3d 97, 109 (2d Cir. 2017). Whether the “arrangement and phrasing” of facts
creates a defamatory implication depends on the particular context; an intervening
section break does not necessarily avoid liability.

The court also does a really bizarre analysis of how the article might be defamatory. This contradicts nearly every other ruling on what is and what is not protected opinion:

Nunes alleges 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. A conspiracy is an agreement that
requires knowledge—here, knowledge that the farm employed undocumented labor
and a knowing agreement to cover up that politically embarrassing fact. Yet the
Congressman’s complaint says that he was “not involved” in the farm’s “operations,”
had “no knowledge of who the dairy farm hired,” and thus “was not involved in any
conspiracy or cover-up.” Whether Nunes knew about the farm’s hiring practices,
including the potential use of undocumented labor, and whether he agreed with others
to keep that information secret, are issues of verifiable fact. We thus conclude that
the implication is “sufficiently factual to be susceptible of being proved true or false,”
so it is not a protected opinion.

That seems like a huge stretch. What saves it (and kills the core defamation lawsuit) is the actual malice standard. Nunes, on appeal, tried to argue that the actual malice standard is wrong, and you kind of get the feeling the judges here agree, but feel obliged to live under it:

On appeal, Nunes suggests that the actual malice standard of New York
Times v. Sullivan should be reconsidered,… but of course
we are bound to apply it. Under that demanding standard, we agree with the district
court that the complaint is insufficient to state a claim of actual malice as to the
original publication.

And then it gets dumber. Note that they say that with regards to “the original publication.” The court claims the same does not apply to Lizza’s later tweets about the article.

The district court went further, however, and ruled that the complaint does not
state a plausible allegation that Lizza acted with actual malice by republishing the
article on his Twitter account after this lawsuit was filed. On this point, we
respectfully disagree.

The court then claims that tweets are different from the original publication, which is a bizarre perversion of the single publication rule (that says that a single publication of an article can only count as a single defamation), and that each tweet can be a separate “publication.” And then says that Lizza’s tweets after the lawsuit was filed could meet the actual malice standard, since by that point Lizza was, in effect, on notice that Nunes felt the information in the article was false.

Nunes’s initial complaint was filed on September 30, 2019. The complaint
alleged that the “strong defamatory gist and false implication” of the article was that
he “was involved in, covered-up, used his office to cover up, conspired with others
to conceal, or was aware of criminal wrongdoing.” The next paragraph of the
complaint makes clear that the “criminal wrongdoing” to which Nunes referred was
the farm’s alleged use of undocumented labor. The complaint denied that Nunes had
any involvement in the farm’s “operations,” denied that there was a “secret”
involving the farm’s move to Iowa and his alleged hypocrisy on immigration policy,
and denied that he “was involved in, covered-up, . . . conspired with others to
conceal, or was aware of criminal wrongdoing.”

Nonetheless, on November 20, 2019, Lizza posted a tweet with a link to the
article. Lizza’s tweet stated: “I noticed that Devin Nunes is in the news. If you’re
interested in a strange tale about Nunes, small-town Iowa, the complexities of
immigration policy, a few car chases, and lots of cows, I’ve got a story for you.” As
discussed, the complaint plausibly alleges that the article defames Nunes by
implication.

Lizza and Esquire pointed out that this tweet is not even remotely republication (because it’s not). And nothing in that tweet by itself can possibly be defamatory. But.. for reasons that I cannot fathom, the court felt otherwise.

Lizza and Hearst contend that Lizza’s tweet of a link to the original article does
not constitute republication of the article. They cite Sundance Image Technology,
Inc. v. Cone Editions Press, Ltd., No. 02-CV-2258, 2007 WL 935703 (S.D. Cal. Mar.
7, 2007), which held that providing links to previous publications on a website,
without more, was not republication. Id. at *7. And other courts have concluded that
“mere reference to an article,” In re Phila. Newspapers, LLC, 690 F.3d 161, 175 (3d Cir. 2012), or a “mere hyperlink,” Lokhova v. Halper, 995 F.3d 134, 143 (4th Cir.
2021), without more, is not a republication. But these decisions do not hold
categorically that hyperlinking to an original publication never constitutes
republication.

The complaint here adequately alleges that Lizza intended to reach and actually
reached a new audience by publishing a tweet about Nunes and a link to the article.
In November 2019, Lizza was on notice of the article’s alleged defamatory
implication by virtue of this lawsuit. The complaint alleges that he then consciously
presented the material to a new audience by encouraging readers to peruse his
“strange tale” about “immigration policy,” and promoting that “I’ve got a story for
you.” Under those circumstances, the complaint sufficiently alleges that Lizza
republished the article after he knew that the Congressman denied knowledge of
undocumented labor on the farm or participation in any conspiracy to hide it.

This is just wrong. It ignores basically all precedent on how the single publication rule works. The story itself has not been republished. It’s the same story. The whole point of the single publication setup is that unless the story changes, all that matters is the original publication date. Reuter’s chief counsel highlights how this is just flat out wrong:

Centrally, the panel conflates publication of the contents of a tweet with *providing a link to* an already-published article.

The article itself was untouched.

There simply is no “republication” of the article on these facts.

— katharine larsen (@katharinelarsen) September 15, 2021

The ruling is complete nonsense. It’s not how this works at all. Just because Nunes claims the article is defamatory does not put Lizza on notice that it is false, or that pointing people to that article meets the actual malice standard of publishing something knowing that it was false or with reckless disregard for the truth. It seems clear that Lizza still stands by the story and believes that what’s in there is true. So everything about this is screwy. The perversion of the single publication rule. The claim that actual malice can apply for any statement after the filing of the lawsuit. Even the elements for what is an opinion are kinda weird.

The likely end result of this is that Lizza now has to go through this process all over again in the district court, focusing on actual malice, and gets the case dismissed again, but that’s a hugely expensive and time exhausting process.

Politico quotes law professor Chip Stewart noting just how weird all this is:

“It’s certainly a novel application of a couple of important libel doctrines, and a potentially troublesome one if the 8th Circuit’s ruling is allowed to stand,” said Chip Stewart, a professor at Texas Christian University. “It’s an odd kind of bootstrapping argument. Nunes claims the underlying article is false. He sues over it. Lizza tweets the exact same story after the lawsuit is filed. And what was originally not actual malice now all of a sudden is, at least plausibly enough for a lawsuit to advance to further costly litigation. All over a tweet that changed nothing about the original story.”

Politico also suggests that this ruling would open up the possibility that Nunes could sue anyone who retweeted the article, but this is almost certainly wrong. Here’s what Gerstein wrote:

One curious aspect of the ruling is that it appears to open the door to lawsuits against anyone who tweeted or retweeted the original story with knowledge of Nunes’ lawsuit, and to similar claims over members of the public or those with significant social media followings tweeting or retweeting stories after learning that the subject of the story is disputing it in some way.

Except, that shouldn’t be true, because for everyone but Lizza (and Esquire), Lizza’s article is 3rd party content, and (while people forget this), Section 230 protects users who share 3rd party speech. Remember, the law is that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” So, all those other tweets should be protected under Section 230.

Still, this is a bizarrely dumb ruling that allows a clearly vexatious SLAPP suit to continue. Even if the district court (hopefully) tosses out the case again on summary judgment, this whole process is extremely wasteful and the ruling on the books in the 8th circuit is completely upending how the single publication rule works — making it a dangerous place for defamation claims.

Read more: techdirt.com

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