Free Speech

Rep. Devin Nunes' Libel Lawsuit Against the Washington Post Can Proceed

"A reasonable juror could ... conclude that the article was materially false because it stated that Nunes had made ... a baseless claim (when he had not)."

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So Judge Carl J. Nichols (D.D.C.) just held today, in Nunes v. WP Company LLC:

Representative Devin Nunes alleges that the Washington Post and its reporter Ellen Nakashima (together, "the Post") defamed him in an article published on November 9, 2020…. Although the question is a close one, Nunes's allegations suffice to survive dismissal as to his defamation claim ….

Nunes is the Ranking Member of the House Permanent Select Committee on Intelligence. On November 9, 2020, the Post published an article about the selection of Michael Ellis as general counsel of the National Security Agency. Ellis had once served as Nunes's chief of staff. The article focused principally on Ellis—including that his appointment was made "under pressure from the White House"—but it also discussed Nunes. In particular, the article stated that:

"In March 2017, [Ellis] gained publicity for his involvement in a questionable episode involving Nunes, who was given access at the White House to intelligence files that Nunes believed would buttress his baseless claims of the Obama administration spying on Trump Tower." [Emphasis added.]

The online version of the article (but not the print version) included another sentence that mentioned Nunes:

News reports stated that Ellis was among the White House officials who helped Nunes see the documents—reportedly late at night, earning the episode the nickname "the midnight run." [Emphasis added.]

Nakashima is listed as the author of both versions of the article.

This was not the first time that the Post (and other news outlets) had reported on claims that the Obama administration had spied on Trump Tower or that intelligence gathering had been directed toward the Trump campaign. Those reports began three and a half years earlier. In March 2017, then-President Trump tweeted that President "Obama had [Trump's] 'wires tapped' in Trump Tower." Thereafter, various officials made public statements about whether there had been a wiretap on Trump Tower phones or other intelligence gathering directed toward the Trump campaign. For his part, Nunes stated publicly that there was never "a physical wiretap of Trump Tower" nor a "FISA warrant … to tap Trump Tower." But Nunes also expressed his "concern[] that other surveillance activities were used against President Trump and his associates," and that he thought it was "very possible" that Trump (or others at the White House) might have been swept up in surveillance targeting foreign nationals on U.S. soil.

As particularly relevant here, during this period, the Post published at least two articles emphasizing that a meaningful difference separated Trump's and Nunes's positions. In one article (published on March 15, 2017), the Post laid out "a brief list of people who have said that President Trump's allegation that President Barack Obama ordered a wiretap of Trump Tower … is simply not true." Nunes was the first person on the list; the Post identified him as "one of the few defenders of Trump's claims," but explained that he had "made clear … that there is zero evidence to suggest Trump Tower was wiretapped." In a second article, published eleven days later, the Post described the situation as the "most notabl[e]" example of the "few cases" in which "Nunes [was] at odds with Trump."

But the Post's November 9, 2020 article did not draw this distinction, and eight days after its publication, Nunes notified the Post that he believed the article was false and defamatory. He also demanded that it remove the statements about Nunes making "baseless claims" and visiting the White House "late at night" and issue a retraction or correction. On December 8, the Post revised its online article to state that "[i]n March 2017, … Nunes … was given access at the White House to intelligence files that Nunes believed would buttress Trump's baseless claims of the Obama administration spying on Trump Tower," and that while "[t]he precise timing of the visit is unclear, … Nunes says it took place during daylight hours." It also issued a correction at the top of the article, which stated that:

As originally published, this article inaccurately attributed claims that the Obama administration spied on Trump Tower to Rep. Devin Nunes (R-Calif.), rather than to President Trump. Nunes has stated that he did not believe there had been any wiretapping of Trump Tower. This article has also been updated to note that Nunes says an incident known as the "midnight run" took place during daylight hours.

And on December 8, 2020, the Post ran the following print retraction:

A Nov. 10 A-section article about the naming of Michael Ellis as general counsel of the National Security Agency inaccurately attributed claims that the Obama administration spied on Trump Tower to Rep. Devin Nunes (R- Calif.), rather than to President Trump. Nunes has said that he did not believe there had been any wiretapping of Trump Tower.

Nunes sued, and the Post moved to dismiss; but the court rejected the Post's motion as to the defamation claim:

The Post first argues that Nunes has failed to allege that the article is materially false. A materially false statement has "a different effect on the mind of the reader from that which the pleaded truth would have produced." "Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge be justified."

Nunes alleges that the article is false because he has never claimed that the Obama administration spied on Trump Tower. The Post doesn't really contend that Nunes has ever made that claim; instead, it argues that the article is substantially true because a claim about the Obama administration "spying on Trump Tower" is not materially different from Nunes's public claims about the Obama administration "spying on the Trump campaign" and conducting "surveillance activities" against President Trump and his associates.

This argument might be persuasive if the article stated merely that Nunes had made claims about spying on Trump Tower; without more, a reader might think there is no meaningful difference between "spying on Trump Tower" and "surveillance activities … used against President Trump and his associates." But the article also labeled Nunes's claims as "baseless," and the Court must consider the article as a whole.

By November 2020, there was evidence to support (at least to a certain extent) Nunes's claims about intelligence activities that touched on the Trump campaign; by that time, an Inspector General report had concluded there had been an investigation "to determine whether individual(s) associated with the Trump campaign are witting of and/or coordinating activities with the Government of Russia," and that the investigation targeted certain U.S. persons affiliated with the campaign.

What remained baseless in November 2020 (or at least what Nunes alleges remained baseless) was the claim President Trump asserted in his March 2017 tweet: that the Obama administration had wiretapped Trump Tower. But Nunes alleges he never made such a claim. This is an important difference: A reasonable juror could conclude that there is a material difference between stating that Nunes had made a claim supported by evidence (that the Obama administration had undertaken intelligence activities related to individuals involved in the Trump campaign) and stating that Nunes had made a baseless claim (that the Obama administration had wiretapped Trump Tower). A reasonable juror could therefore conclude that the article was materially false because it stated that Nunes had made such a baseless claim (when he had not)…

[E]ven if the article was materially false, it must also have defamatory meaning; that is, it must rise to the level of making Nunes "appear odious, infamous, or ridiculous," or "tend[] to injure [him] in his trade, profession or community standing, or lower him in the estimation of the community." … The Post argues that the suggestion that Nunes "viewed documents that he believed would provide support for claims of spying made by the President" does not make him "appear odious, infamous, or ridiculous" nor suggest that he is unfit for his position as a congressman. As the Post puts it, "it was not defamatory to say that the Chairman of the House Intelligence Committee, 'a staunch supporter of President Trump,' viewed documents that he believed could lend credence to the President's claims."

But again, that is not all that the article says. Taken as a whole, the article says (or at least a reasonable juror could understand the article to say) that Nunes had made baseless claims about spying on Trump Tower and then visited the White House to inspect documents that might support those baseless claims. And a reasonable juror could conclude that an elected official is ridiculous or unfit for office if he searched for evidence to support baseless claims. Indeed, the online article stated that Nunes had searched for this evidence "late at night," suggesting something untoward about the outing. Although the Post argues that such timing suggests merely that Nunes "devoted significant time and energy to his duties," a reasonable juror could conclude that the article carried a different meaning.

The Post further urges the Court to discount the relevance of its use of the term "baseless" for purposes of the defamatory meaning analysis because, without that word, the article would be "otherwise accurate"—presumably on the theory that a single word cannot transform an "otherwise accurate" article into one with defamatory meaning. But that argument proves too much; the Court is required to consider the article as a whole, and the insertion of a single word can substantially change the meaning of a statement. (Consider the difference between a "claim" and a "false claim," or between "food" and "rotten food.") Even if it would not have been defamatory to say that Nunes went to the White House in search of evidence for his own claims (in part because he did end up uncovering some evidence for the claims he was making), "baseless" is the type of word that transforms the "gist" of the article by insinuating that Nunes is the type of official who would spend his time searching for evidence to support claims with no foundation in fact.

The court also concluded that Nunes had alleged enough evidence of "actual malice" (i.e., knowledge of falsehood or likely falsehood) on the Post's part:

Nunes alleges that the Post acted with actual malice because it "made up facts out of whole cloth," "abandoned all journalistic standards and integrity," and published the article out of "institutional hostility, hatred, … bias, spite and ill-will" toward Nunes, and as "revenge" for other instances in which he has feuded with the Post. He also alleges that the Post improperly relied on unreliable and biased sources despite Nunes's denial that he had participated in any "midnight run," and that the Post's actual malice is evinced by the fact that in March 2017 it had correctly reported Nunes's repudiation of President Trump's unfounded claims, but then changed course in November 2020.

Most of Nunes's allegations, without more, do not demonstrate actual malice. As an initial matter, Nunes's bald assertions that the Post knew that its statements were false are no more than "labels and conclusions" referencing the relevant legal standard. And his conclusory references to the Post's purported animus and lack of standards fare little better; actual malice requires more. Nunes's allegations regarding his denials are similarly unavailing: "A publisher need not accept 'denials, however vehement; such denials are so commonplace in the world of polemical charge and countercharge that, in themselves, they hardly alert the conscientious reporter to the likelihood of error.'"

But Nunes pleads more than just legal conclusions. In March 2017 the Post itself had reported that Nunes had denied President Trump's claims about a wiretap at Trump Tower. In the article at issue here, the Post reported that Nunes made that baseless claim himself. A newspaper's own prior (and correct) reporting that is inconsistent with its later (and incorrect) reporting could certainly give the paper reason to seriously doubt the truth of its later publication—just as a source's pre-publication recantation may be evidence that a publisher had reason to doubt the source's original claims. {Because Nakashima was a contributor to at least one of the articles distinguishing Nunes's position on the wiretap claims from the former President's stance, it is appropriate to consider the prior reporting with respect to both Defendants' subjective states of mind.}

The Post urges the Court to conclude that its November 9, 2020 article merely misattributed the baseless claims to Nunes (rather than to President Trump) and was therefore a "simple misstatement of the Post's prior reporting." That may very well be true. But at this stage in the proceedings, where the Court is limited to the allegations in the Amended Complaint and the reasonable inferences that can be drawn from them, the Court cannot determine what in fact led to the incorrect statements in the article. The same can be said for the Post's updates and retraction; although a defendant's correction "is significant and tends to negate any inference of actual malice," even a full retraction, without more, does not foreclose the possibility that a defendant acted with actual malice. And although the Post's retraction did note that "Nunes has stated that he did not believe there had been any wiretapping of Trump Tower," it also added that "Nunes believed [intelligence files] would buttress Trump's baseless claims"—which a reasonable juror could conclude meant that Nunes did believe the baseless claims. Later in this case, Nunes will have to establish by clear and convincing evidence that, even in light of the corrections the Post did issue, it published its statements with actual malice.

(Nunes had also sued for negligence, but the court granted the Post's motion to dismiss as to that claim, because the First Amendment requires a showing of more than negligence in such lawsuits brought by public officials.)