The Volokh Conspiracy

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Court Rules for CNN in Rep. Devin Nunes' Libel Lawsuit


The decision (Nunes v. CNN, Inc.), from Judge Laura Taylor Swain (S.D.N.Y.), has just been released. The alleged libel:

[A 2019 CNN article reported] that Joseph Bondy, a lawyer for Lev Parnas, an indicted former associate of Rudy Giuliani, had stated that Parnas was willing to testify to Congress that Nunes had traveled to Vienna and met with former Ukrainian Prosecutor General Victor Shokin. According to the article, Parnas was willing to testify that Nunes' meetings were to discuss "digging up dirt" on former Vice President Joe Biden.

At the same time that the article was published on CNN's digital network, Ward appeared as a guest on a CNN news program, Cuomo Prime Time, hosted by news anchor Chris Cuomo. Ward and Cuomo discussed the article and allegedly "published further defamatory statements" about Nunes' involvement in "looking for dirt on the Bidens."

The heart of the legal analysis:

[1.] California libel law applies, chiefly because Rep. Nunes is domiciled in California. (I oversimplify here, but that's the gist.)

[2.] California has a "libel retraction" statute, Cal. Civil Code § 48a. That statute provides that only "special damages" may be recovered for libel in "a publication, either in print or electronic form, that contains news on matters of public concern and that publishes at least once a week," unless plaintiff demands a correction within 20 days after the plaintiff learns of the publication and defendant refuses. No such correction was demanded here.

[3.] Nunes hasn't pleaded any special damages, defined as "all damages that plaintiff alleges and proves that he or she has suffered in respect to his or her property, business, trade, profession, or occupation, including the amounts of money the plaintiff alleges and proves he or she has expended as a result of the alleged libel, and no other." (This presumably doesn't include attorney fees spent to litigate a non-special-damages claim.)

Because of this, the judge granted the motion to dismiss; Nunes can, of course, appeal.