The Volokh Conspiracy
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From today's opinion by Judge Amit P. Mehta in Nunes v. WP Co. LLC:
Plaintiff … serves as the Ranking Member of the House Permanent Select Committee on Intelligence.
On February 21, 2020, the [Washington] Post published an article titled "Senior intelligence official told lawmakers that Russia wants to see Trump reelected." The Article reported that Shelby Pierson, a senior U.S. intelligence official, told members of the House Intelligence Committee, including Plaintiff, that Russia had "developed a preference" for President Trump and wanted to see him reelected. According to an unnamed committee official, the briefing was open to all Committee members and covered "election security and foreign interference in the run-up to the 2020 election." The Article did not specify the date of the briefing.
The Article went on to report that President Trump "learned about Pierson's remarks from Rep. Devin Nunes (Calif.), the committee's ranking Republican and staunch Trump ally." The Article continued: "Trump grew angry at his acting director of national intelligence, Joseph Maguire, in the Oval Office, seeing Maguire and his staff as disloyal for speaking to Congress about Russia's perceived preference." Citing "people familiar with the matter," the Article noted that "Trump erroneously believed that Pierson had given the assessment exclusively to Rep. Adam B. Schiff (D-Calif.), the chairman of the House Intelligence Committee." The Article did not specify the source or basis for the President's erroneous belief. President Trump reportedly said that "Maguire should not have let the Capitol Hill briefing happen—particularly before he received the briefing—and that he should not have learned about it from a congressman," an apparent reference to Plaintiff.
The Article reported that "[Pierson's] analysis and Trump's furious response ruined Maguire's chances of becoming the permanent intelligence chief." Maguire had been considered "a leading candidate to be nominated to the post of [Director of National Intelligence], … [b]ut Trump's opinion shifted … when he heard from [Nunes] about the official's remarks." The Article noted that, on Wednesday, February 19, 2020, President Trump announced on Twitter that he was replacing Maguire with Richard Grenell, the then–U.S. ambassador to Germany and "a vocal loyalist." …
Nunes sued for libel, but the court granted the defendants' motion to dismiss:
"[D]efamation by implication stems not from what is literally stated, but from what is implied." Plaintiff does not challenge the substantial truth of any statement in the Article. See Compl. ¶ 4 (taking issue with one statement not actually in the Article and contesting another statement's implication). Rather, he alleges that "[t]he defamatory gist of the [Article] is that Plaintiff lied to and deceived the President of the United States[.]" …
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.
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.
The court also concluded that Rep. Nunes hadn't introduced sufficient evidence that the Post acted with "actual malice," which is to say that it knew the statement was false or "in fact entertained serious doubts" that it was true. And the court rejected Rep. Nunes' motion for leave to file an amended complaint, because the proposed "amendments would be futile because they fail to cure the defects explained above."