A terrible decision by the Eighth Circuit in the Nunes v. Lizza case threatens press freedoms
Devin Nunes's defamation suit against journalist Ryan Lizza was dismissed by a federal judge. Now three appellate judges, two appointed by Bush and one by Trump, have brought it back to life.
On September 30, 2018, Esquire published a piece by journalist Ryan Lizza entitled “Devin Nunes’s Family Farm is Hiding a Politically Explosive Secret.” Actually, Lizza’s article revealed two apparent secrets, although how politically explosive they were is in the eye of the beholder.
The first secret was that while the California Congressman has long touted his agricultural roots in Tulare County, home to a billion dollar dairy industry, the Tulare farm his family owned there was sold many years ago, and the family now runs a dairy in Sibley, Iowa.
The second secret was somewhat more dramatic. According to sources Lizza talked to, the Nunes farm, like so many dairy farms in Iowa, employs undocumented workers. That was potentially problematic for the Congressman, since he had allied strongly with Donald Trump, and done nothing to oppose Trump’s virulent anti-immigrant rhetoric and policies--even though the Nunes family has its origins with Portuguese immigrants to the U.S.
Exactly a year later, on September 30, 2019, Nunes filed a defamation suit against Lizza and Hearst Magazine Media, Inc., which owns Esquire. Nunes argued that he was not an owner of the Sibley farm, and had nothing to do with its hiring practices, as he insisted the article had implied. As I read it, Lizza’s article was strangely ambiguous on that question: Towards the end of the article he states flatly, without citing any sources, that Nunes did not have a financial interest in the farm; but earlier in the piece, Lizza quotes from a Daily Beast article about Nunes to the effect that he was involved with the farm. I will discuss this discrepancy further down.
Nunes had filed the lawsuit in the U.S. District Court for the Northern District of Iowa, Western Division. On August 5, 2020, the U.S. District Judge in charge of the case, Charles Joseph Williams, dismissed the case “with prejudice,” meaning that it could not be filed again, nor could Nunes’s Complaint be amended to make up for its deficiencies. Judge Williams did not give Lizza and Hearst all they wanted in his decision, but the case was presumably over.
I highly recommend reading Judge Williams’s 48 page decision. It is essentially a primer of federal defamation law. Williams covered in detail what kinds of statements can be found defamatory; the “actual malice” standard for public figures used by the U.S. Supreme Court to decide the New York Times v. Sullivan case back in 1964, a bedrock of freedom of the press; the meaning of “defamation by implication,” which Nunes argued Lizza and Esquire were guilty of even if they had not explicitly said he was responsible for hiring undocumented workers; and the current hot button issue of whether state anti-SLAPP laws, designed to stop frivolous lawsuits in their tracks, applied in federal courts.
But on September 15, the U.S. Eighth Circuit Court of Appeals partly reversed Williams. Three circuit judges, two appointed by George W. Bush and one by Donald Trump, ordered the case back to the district court to consider two key issues: First, whether the defendants had indeed committed “defamation by implication”--that is, whether a reasonable reader might have concluded from the context of the article that Nunes had been involved in the hire of undocumented workers, even if it did not explicitly say that; and second, whether Lizza had further defamed Nunes by Tweeting a link to his article in November 2019, after the lawsuit was filed, and after Lizza was supposedly on notice that Nunes was challenging his reporting and its accuracy.
As might be imagined, the idea that a reporter, by Tweeting a link to their own article or someone else’s, could suddenly incur a new allegation of defamation has sent First Amendment advocates into paroxysms of outrage. Personally, I share that outrage. As some commenters have put it, the Circuit Court’s decision could easily amount to a “gag order” on reporters and readers alike. It could mean that all one has to do is file a defamation suit and all free speech bets are off until the case is resolved--and even after that.
As Elizabeth Dye put it in a commentary in Above The Law, “Astute observers will note that this sets the price of bottling up an embarrassing story at $402, the federal filing fee for a civil action.”
To make matters even worse, the three conservative judges appear to have issued a thinly veiled threat about New York Times v. Sullivan’s actual malice standard for suing public officials, which Nunes argued in his Complaint should be overturned. In a gratuitous passage, the judges refer to Justice Clarence Thomas’s comment in the 2019 McKee v. Cosby case that this bulwark of freedom of the press should be reconsidered, only grudgingly accepting that “we are bound to apply…that demanding standard.”
I will go into a more detail on all these issues in what follows. But I should state, in full disclosure, that I have not a conflict of interest, but a great personal interest in the future of this case. For 13 months, from June 2020 to July 2021, I was a defendant in a defamation case filed in the Southern District of New York. Although the case was settled, and prudence suggests that I do not go into details (for that, please visit Balter’s Blog), I can testify that a journalist who tries to defend the truth of what they have reported can be in for a very hard time. The decision of the three Eighth Circuit judges--which may be revisited en banc by the entire Court, something it is likely Lizza and Hearst will request--will only make our jobs harder, and potentially erode the already imperiled First Amendment.
A reporter goes down on the farm
While the Eighth Circuit seems to be saying that Devin Nunes might be able to sue me for just linking to the Lizza article, I do hope you will read it, or re-read it (please don’t say I suggested it.) It’s actually very good, and is about much more than Devin Nunes. Lizza visits the Iowa town of Sibley and talks to a lot of people (many of them in a local diner, rated Iowa’s best.) And even though Sibley’s Congressional representative is the racist, anti-immigrant Trump symp Steve King, who has won the district by crushing victory margins, Lizza finds many in the town actually did not agree with Trump’s anti-immigration rhetoric and policies. After all, dairy farming in this part of the country clearly depends on the labor of immigrants, including undocumented immigrants, and the locals are quite frank with Lizza about that. More than one interviewee expressed what appeared to be sincere sympathy for the immigrant laborers, even if their wages are kept very low.
While there, Lizza was stalked by members of the Nunes family in various vehicles, including Nunes’s mother, who has long been the treasurer of his election campaigns (and, as Lizza implies, at least a familial link between Devin Nunes and the farm.) But, as I mentioned above, the article is a bit all over the place about whether Devin Nunes has anything to do with the farm, financially or in management terms. I find this odd.
In the first half of the article, we read the following passage:
As recently as July 27, the lead of a Wall Street Journal editorial-page piece about Nunes, which featured a Tulare dateline, emphasized the dairy: “It’s 105 degrees as I stand with Rep. Devin Nunes on his family’s dairy farm.” Last year, Nunes noted in an interview with the Daily Beast—headline: “The Dairy Farmer Overseeing U. S. Spies and the Russia Hack Investigation”—“I’m pretty simple. I like agriculture.” The Daily Beast noted, “The cows are not far from his mind. He keeps in regular contact with his brother and father about their dairy farm.”
I think a “reasonable reader” might conclude from this that Nunes is still involved in the family farm. But in the second half of the story, Lizza writes:
Was there even a story here, anyway? Devin Nunes was the public figure at the heart of this, and he had no financial interest in his parents’ Iowa dairy operation. On the other hand, he and his parents seemed to have concealed basic facts about the family’s move to Iowa. It was suspicious. And his mom, who co-owns the Sibley dairy, is also the treasurer of his campaign. In 2007, Devin and his wife, Elizabeth, used the NuStar dairy’s Iowa post-office-box address on a filing with the SEC regarding a financial holding company the family co-owns, even though Devin and Elizabeth live in California.
I would be eager to hear what readers think (please use the Comments button at the bottom), but to me these statements are contradictory. Moreover, Lizza provides no source at all for the statement “he had no financial interest” in the Iowa dairy operation. What is this based on? Buried in a paragraph that could imply the opposite, it needs further explanation. In this sense, Lizza may have opened himself up for the defamation suit, even from a public figure with a very high bar to jump--”actual malice”--before he could prevail.
(“Actual malice,” in defamation law, does not mean you despise the public figure who is suing you. There is no penalty for despising the likes of Devin Nunes. Rather, it means that a reporter or other communicator recklessly disregarded the truth of their statements, and/or published them knowing very well that they were not true. Mere errors, especially small ones, do not count, even with private plaintiffs in most cases.)
I think we also have to criticize the editors of Esquire, who, by giving the article a deliberately inflammatory headline--”Devin Nunes’s Family Farm is Hiding a Politically Explosive Secret”--made it easier for Nunes to sue. So while Judge Williams correctly, in my view, decided that there was no defamation when the entire article was taken in context, the way the article was handled opened the door just wide enough to allow the Eighth Circuit to gleefully waltz in and take some slices out of the First Amendment.
This is clear in one passage of the appellate decision, which is worth quoting in full:
To survive a motion to dismiss, a public figure’s complaint must allege “facts sufficient to give rise to a reasonable inference of actual malice.” Nelson Auto Ctr., Inc. v. Multimedia Holdings Corp., 951 F.3d 952, 958 (8th Cir. 2020) (internal quotation omitted). The district court concluded that the complaint does not meet that burden. On appeal, Nunes suggests that the actual malice standard of New York Times v. Sullivan should be reconsidered, see McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring in denial of certiorari); Tah v. Glob. Witness Publ’g, Inc., 991 F.3d 231, 251-56 (D.C. Cir. 2021) (Silberman, J., dissenting in part), 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.
A little explanation: In McKee v. Cosby, the actress Katherine McKee accused Bill Cosby of raping her 40 years earlier, and her allegations were published in the New York Daily News. When Cosby’s attorney responded with statements McKee considered false and defamatory, McKee sued Cosby in a Massachusetts federal court. The district and appeals courts dismissed the case on the grounds that McKee, by going public, was a “limited purpose public figure,” and the Supreme Court declined to step in. But in his concurring opinion denying review, Justice Clarence Thomas famously suggested that the Court should reconsider New York Times v. Sullivan--and journalists and media attorneys are pretty confident that it will do just that, sooner or later.
(In Tah v. Global Witness Publishing, a case in the Washington, D.C., circuit, the Court held that anti-SLAPP laws cannot be invoked in federal court. The district courts have split on this critical question: The Second Circuit, for example, which includes the Southern District of New York, has held that they can be invoked in certain circumstances.)
So the three conservative judges in the Eighth Circuit could not restrain themselves from editorializing about the “demanding” actual malice standard of proof in New York Times v. Sullivan. It may not be long before they, or some other circuit, decides to open the door to a U.S. Supreme Court that includes justices hostile to freedom of the press and all the transparency it brings to government. That such a a thing could actually happen is clear from the Supreme Court’s decision to allow the Texas anti-abortion law to stand, despite its own Roe v. Wade precedent.
I am sure that journalists, media lawyers, and free press advocates will be watching closely to see what happens now in the Nunes v. Lizza/Hearst case, which is remanded back to Judge Williams’s district court. Let’s hope that a case that for all intents and purposes was dead and buried will not help revive the beasts determined to devour the First Amendment.