Libel

Rep. Devin Nunes Loses Libel Lawsuit Against Washington Post

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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."

NEXT: Cancelling Chief Justice White

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  1. NY Times precedent makes it impossible for a public figure to get compensated. He could have filed in England, made $50000 and paid his lawyer that amount.

    A statute is needed to allow liability when the journalist Code of Ethics is violated, as negligence per se. One of its tenets is to give both sides of a story. “No reply to our call by the time of publication.” is not both sidess of the story. Such a statute would allow a form of professional self policing.

    All media outlets, except one, are like the David Duke website, hate filled, biased, advocacy hit pieces, expressing the hatreds felt by their tech billionaire owners, and nothing else. C-SPAN counts stories to maintain a balance. It is the only exception today, the only ethical journalism outlet.

    https://www.spj.org/ethicscode.asp

    Volokh would not allow a prior comment saying the same thing.

    1. So, under your proposed law, would an article about an upcoming lunar eclipse require a discussion of the beliefs of the Flat Earth Society?

      1. Hell, I’d interview the Flat Earth Society and if they were willing to go on the record, it’d be the easiest copy I’d ever written. I’d just be sure to be accurate and quote them at exactly what they said.

        1. Ed. I have said the same in regards to the government privileges of educational agencies. A review of why you cannot believe your eyes would be highly educational. So, yes, a comment by the Flat Earth Society would be useful. Ptolemaic views of the sky are still taught in Madrassas under pain of corporal punishment or death. Those students could use a discussion. Not as outlandish or as silly as you think.

    2. “Plaintiff does not challenge the substantial truth of any statement in the Article.” Do you believe Nunes should be allowed to prevail on what readers might find “between-the-lines?”

      “C-SPAN counts stories to maintain a balance.” Perhaps, but truth, not balance, should be the goal.

      1. Au. You are assuming the truth is known or easy to figure out. Not so, usually. What is obvious to you may just be a cultural inculcated belieft.

        I have discussed the Peace Corps English teacher in a college in China. He gave the standard views of Hamlet. The students all laughed. They loved their teacher, but he was so naive. Hamlet was about the proletariat struggle against the aristocracy and against the bourgoisie. They proceeded to provide a lot of evidence for this view in the text. One will never overcome the surrounding culture and its world view.

        https://www.amazon.com/exec/obidos/ASIN/B0046ZREEA/reasonmagazinea-20/

        1. The “truth” found in some mishmash of Marxist dialectical materialism is indeed mysterious to those not indoctrinated in its mythology. I’ve read and studies Marx, and even I find his historical determinism absurdly unrealistic. I am not surprised that Lenin, Stalin, and Mao all felt compelled to warp Marxist theory into something poor old Karl would never have recognized. Indeed, the perversion began even before his death, once resulting in Marx himself sarcastically remarking, “I am no longer a Marxist.” Sadly, most revisions of Marxism were even more inane, more dangerous than the one devised by Marx himself, but never mind.

          But Nunes is not accusing the Washington post of calling him an enemy of the working class. Rather, he was suing because of what his subjective opinion thought an article implied.

          If the plaintiff’s subjective opinion is the measure by which defamation suits live and die, those Trump supporters accusing everyone not waving a Trump flag of stealing votes might want to find lawyers.

  2. “Plaintiff does not challenge the substantial truth of any statement in the Article.”

    That seems to be a problem for a lot of Republicans these days.

  3. Geez, Devin Nunes; don’t have a cow.

    1. Oooh! You win the internet!

      (Warning you: I’m gonna steal this!)

  4. What a surprise!

    The amazing thing is not that these “I can dish it out but I can’t take it” Republicans engage in litigation, but that they are so bad at it.

    1. I don’t think Nunes was trying to win. It was a combination harassment technique, warning to others and a loyalty/fashion statement.

      1. I think you are right.

        The judge gives a really charitable reading to the complaint. Rather than saying that the complaint misrepresents the contents of the Washington Post article, the judge concludes that the complaint is attempting to argue “defamation by implication,” even though that term never appears in the complaint. Normally, a competent lawyer would explicitly argue “defamation by implication” rather than relying on a charitable judge to read an argument into a brief that wasn’t explicitly made.

        On the other hand, Nunes has filed multiple baseless lawsuits, and had no chance of winning this lawsuit. So I don’t think this is bad lawyering. It’s “we are going to lose this lawsuit no matter what we do, so traditional measurements of lawyer quality don’t apply” lawyering.

        1. Yes, you’re both right. It’s about harassment and loyalty-signalling, not about actual legally actionable activities on the parts of the defendants.

          Note that Nunes has a propensity to file cases like this in states that lack an anti-SLAPP statute. Coincidence?

  5. Folks, this is what makes Joe Sixpack have contempt for the courts.

    *I* don’t understand either what this lawsuit was about, exactly — nor exactly what the court ruled — and I have 5 college degrees, three on the grad level…

    Bottom line — no one on the Intelligence Committee should be discussing things with the press. Michelle Bachman didn’t….

    1. *I* don’t understand either what this lawsuit was about, exactly — nor exactly what the court ruled — and I have 5 college degrees, three on the grad level

      Uh huh. And I have a Nobel Prize, a Heisman Trophy and an Oscar.

      1. Only one of each? You’re clearly not an “Internet Expert.”

      2. Hi, David. Any legal utterance with a readability score above the 6th grade violates the Equal Protection Clauses. It is void. Any Latin phrase violates the Establishment Clause and voids the utterance.

        If you are Jewish, I do not understand how you could be indoctrinated into the Catholic Catechism of the 13th Century in 1L, and say nothing about it. You were looking for the rent and did not want to make waves. Volokh is a Jew, and a First Amendment expert. He says nothing about this massive insurrection against the constitution by the scum bag lawyer profession and its cult indoctrinators.

        1. You need to improve your English, comrade. Your posts read like someone who selects the suggested word on a mobile keyboard until you reach your character count quota.

          1. Hi, Jason. What is the Chinese Communist Party paying you?

    2. Your Joe Sixpack just exists only in your brain so you can try an argument ad popularum on your own dumbass opinions.

      1. Who voted for Trump?

        1. A bunch of people who don’t think like you.

          Because no one thinks like you.

    3. Let me get this straight. Joe Sixpack has contempt for the courts because Dr. Ed 2 couldn’t understand a pretty straightforward and clear account of what a plainly meritless and properly dismissed lawsuit was about?

  6. Devin Nunes is the embodiment of what one can accomplish in life with a conservative bearing, an inherited life, and a degree in cow-milking.

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