The Volokh Conspiracy
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From today's decision in Nunes v. NBCUniversal Media, LLC by Judge P. Kevin Castel (S.D.N.Y.):
Plaintiff Devin Nunes, a former Member of the House of Representatives, alleges that he was defamed by defendant NBCUniversal Media, LLC. According to Nunes, statements made on the March 18, 2021 broadcast of The Rachel Maddow Show on MSNBC portrayed him in a false and defamatory light. The statements purported to describe Nunes's conduct regarding a package addressed to him from Andriy Derkach, a Ukrainian legislator with ties to Russian officials and intelligence services….
On December 11, 2019, a package was delivered to the House Permanent Select Committee on Intelligence …, of which Nunes was Ranking Member. It was addressed to Nunes from Andriy Derkach and was handled solely by Nunes' staff and delivered, unopened, to the offices of the FBI. That same day, Nunes sent a letter to Attorney General William P. Barr advising him of the receipt of the package.
On July 29, 2020, the Intelligence Committee held an open business meeting. During this meeting, Representative Sean Maloney asked Nunes two questions. First, Maloney asked if Nunes had received materials from Derkach. Second, Maloney asked if, in the event that Nunes had received materials, whether he was prepared to share them with the Committee. When asked if he wished to respond to the questions, Nunes declined.
In March 10, 2021, the National Intelligence Council declassified a report titled "Foreign Threats to the 2020 US Federal Elections" (the "DNI Report"). The report stated that Derkach and his associates sought to use prominent Americans to "launder their narratives to US officials and audiences." The report also stated that Derkach provided materials to individuals linked to the Trump administration and attempted to contact several senior U.S. officials.
In the March 18, 2021 broadcast of The Rachel Maddow Show, host Rachel Maddow discussed the declassified DNI Report as part of a longer segment about Derkach, Russian disinformation and election interference. Maddow referred to the report and discussed the package addressed to Nunes, as well as the interaction between Nunes and Maloney at the Intelligence Committee meeting. Maddow said that Nunes had accepted a package from Derkach and refused to answer questions about the package. Maddow also said that Nunes refused to hand the package to the FBI.
The court allowed the libel claim to proceed as to the last sentence in the statement that "Congressman Nunes has refused to answer questions about what he received from Andriy Derkach. He has refused to show the contents of the package to other members of the intelligence community. He has refused to hand it over to the FBI which is what you should do if you get something from somebody who is sanctioned by the U.S. as a Russian agent." (Emphasis added.)
A reasonable viewer could plausibly understand the speaker to assert that Nunes "refused" turn over the Derkach package to the FBI. A reasonable viewer could conclude that such conduct is significantly more serious than what was suggested in the Committee proceeding. A refusal to turn over the package to the law-enforcement body tasked with investigating and enforcing the intelligence laws is factually distinct from declining to publicly answer questions raised in a public legislative proceeding, and could plausibly be understood by a reasonable viewer to suggest unlawful conduct on the part of Nunes. Because the assertion involving Nunes's interactions with the FBI does not speak to the events of the Intelligence Committee meeting and "suggested more serious conduct than actually suggested at the proceeding," it does not fall within the fair report privilege.
NBCU also relies on the then-newly declassified DNI Report stating that Derkach and his associates sought to use prominent Americans to "launder their narratives to US officials and audiences" and that Derkach both provided materials to individuals linked to the Trump administration and attempted to contact senior U.S. officials. Had Statement Two merely reported on the DNI Report and noted that Nunes did not answer questions about receipt of package from Derkach, it is doubtful that it would have been actionable. But the Statement also focuses on Nunes' refusal to turn the material over to the FBI. The Statement in this respect was false, not just technically but also in substance and meaning, and capable of injuring Nunes in his profession….
A public figure alleging defamation must "prove that an allegedly libelous statement was made with actual malice, that is, made with knowledge that it was false or with reckless disregard of whether it was false or not." To survive a motion to dismiss, "malice must be alleged plausibly in accordance with Rule 8." "When actual malice in making a defamatory statement is at issue, the critical question is the state of mind of those responsible for the publication."
"The hurdles to plausibly pleading actual malice, though significant given the First Amendment interests at stake, are by no means insurmountable." "[W]hether actual malice can plausibly be inferred will depend on the facts and circumstances of each case" and "a court typically will infer actual malice from objective facts …." "[A] public-figure plaintiff must plead 'plausible grounds' to infer actual malice by alleging 'enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of' actual malice.'" A failure to investigate is not alone sufficient to establish actual malice, but "reliance on anonymous or unreliable sources without further investigation may support an inference of actual malice." The actual malice analysis also may weigh whether the speaker knew and ignored "the journalistic consensus" about a disputed statement, any revisions made during the editorial process and whether the speaker "had a personal connection … that animated his [or her] hostility …."
The Complaint asserts that NBCU and Maddow had knowledge that the Derkach package had in truth been given to the FBI, based on a July 29, 2020 article published on the Breitbart website. The Breitbart article quotes Rick Crawford, a Republican member of Congress, as stating in part:
Here's the thing: it's standard practice that if you get a package from unknown source in a foreign country, it's probably a good idea to call the FBI and let them handle it and not handle those packages and don't open them and go, 'Hey I wonder what this is? I guess it's Christmas came early this year.' No, you follow the protocol, which is you turn that over to the FBI. That's what happened. [Emphasis added.]
After quoting this passage, the Complaint states: "MSNBC and Maddow had no source that had told them prior to publication of the Statements that Plaintiff had 'refused' to turn over the Derkach package to the FBI." It states that Maddow "provided no source for the defamatory Statements about Plaintiff because, in truth, Maddow fabricated the Statements, including the story that Plaintiff 'refused' to turn over the package to the FBI."
It further asserts that other reports reviewed by Maddow and her producers "confirmed the package had been turned over to the FBI" but that they "purposefully evaded the truth" and "chose not to interview important witnesses …."
NBCU points to a July 23, 2020 article published in Politico with the headline, "Democrats: Packets sent to Trump allies are part of foreign plot to damage Biden." The article described "concerns" of "[t]op congressional Democrats" that packets were "mailed to prominent allies of President Donald Trump," including Nunes and then-White House chief of staff Mick Mulvaney. The article included the following passage:
The packets, described to POLITICO by two people who have seen the classified portion of the Democrats' letter, were sent late last year to Rep. Devin Nunes (R-Calif.), Sens. Lindsey Graham (R- S.C.) and Chuck Grassley (R-Iowa), and then-White House chief of staff Mick Mulvaney.
The packets were sent amid a Democratic push to impeach Trump over his effort to pressure Ukraine's president to investigate Biden and his son Hunter the sources said. Graham and Grassley denied having received the material, and Mulvaney and Nunes declined repeated requests for comment. One person familiar with the matter said the information was not turned over to the FBI. The FBI declined to comment. [Emphasis added.]
This Politico article is not cited or referenced in the Complaint, nor is it cited or referenced in the segment. Because the article goes beyond the pleadings and the materials integral thereto, it is not properly considered on a motion to dismiss. On this bare record, the Court declines to convert the motion to one for summary judgment….
The court held, however, that the other statements that Nunes claimed were libelous were either substantially true, expressions of opinion, or fair reports of the House of Representatives proceedings; those were all the following statements, except the part (marked in strikeout font) that was found actionable (see above):
Statement One: "Andriy Derkach is sanctioned by the U.S. government as a Russian agent. He is singled out by name by the Director of National Intelligence as someone under Vladimir Putin's direct purview who helped run this organization targeting our election last year. Congressman Nunes accepted a package from him. What was in it?"
Statement Two: "Congressman Nunes has refused to answer questions about what he received from Andriy Derkach. He has refused to show the contents of the package to other members of the intelligence community. He has refused to hand it over to the FBI which is what you should do if you get something from somebody who is sanctioned by the U.S. as a Russian agent."
Statement Three: "Still, the Republicans have kept Mr. Nunes on as the top Republican on the intelligence committee. How does that stand? How does that stay a thing?" …