In 2019 California Congressman Devin Nunes sued political writer Ryan Lizza and Esquire magazine in federal court claiming a 2018 story in the magazine defamed him by falsely implying that Nunes conspired to hide the suggestion that the Nunes family’s dairy farm in northwest Iowa employs undocumented immigrants.
U.S. District Judge C.J. Williams dismissed Nunes’ complaint, holding that even if the article was defamatory as a matter of law, the complaint failed to plausibly allege that Lizza and Esquire acted with “actual malice” in publishing it. To prove actual malice, as defined by the U.S. Supreme Court in New York Times v. Sullivan in 1964, a public official or public figure must prove that an alleged defamatory statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”
That is a difficult standard to meet for a public official such as Nunes, a Republican who has represented California’s 22nd District in Congress since 2003 and serves as ranking member of the House Permanent Select Committee on Intelligence. So, that might have seemed the end of the story. But not according to the U.S. Court of Appeals for the Eighth Circuit, which has appellate jurisdiction in seven Midwestern states, including Iowa.
While a three-judge panel of the Eighth Circuit hearing Nunes’ appeal affirmed the District Court ruling in part, it reversed in part and remanded the case for further consideration. Which means Nunes has a fresh opportunity to make the case that he was libeled by Lizza and Esquire.
The Court of Appeals agreed with the District Court that Nunes failed to state a claim for “express defamation” based on statements in the Esquire story that Nunes misused his position as chairman of the House Permanent Select Committee on Intelligence to protect President Donald Trump against allegations of Russian interference with the 2016 presidential election.
But the Court of Appeals disagreed with the lower court’s holding that Nunes also failed to state a plausible claim for “defamation by implication” based on the article’s implication that Nunes conspired with others to hide the farm’s use of undocumented labor.
“Based on the article’s presentation of facts, we think the complaint plausibly alleges that a reasonable reader could draw the implication that Representative Nunes conspired to hide the farm’s use of undocumented labor,” Circuit Judge Steven Colloton wrote for the panel that also included Chief Judge Lavenski Smith and Judge Ralph Erickson.
In analyzing a claim of defamation by implication, the court said, the article must be considered as a whole, and in this case it said “the article’s principal theme is that Nunes and his family hid the farm’s move to Iowa” and “then sets forth a series of facts about the supposed conspiracy to hide the farm’s move, the use of undocumented labor at Midwestern dairy farms, the Nunes family farm’s alleged use of undocumented labor, and the congressman’s position on immigration enforcement, in a way that reasonably implies a connection among those asserted facts.”
Judge Colloton wrote that a reasonable reader could conclude from reading the article as a whole that the revelation of the Nunes family’s employment of undocumented labor could be politically damaging to Nunes, who has denounced calls for amnesty for undocumented workers.
The defendants argued that even if the article could be read as defamation by implication, it is protected opinion, but the Court of Appeals disagreed, saying the implication allegedly conveyed by the article was sufficiently factual to be susceptible of being proved true or false. Moreover, the court said Nunes plausibly alleged that Lizza and Esquire intended or endorsed the implication that Nunes conspired to cover up the farm’s use of undocumented labor.
So what of the actual malice standard under New York Times?
The Eighth Circuit agreed with the trial court that the complaint failed to state a claim of actual malice as to the original publication, but Judge Colloton wrote that “The district court went further, however, and ruled that the complaint does not state a plausible allegation that Lizza acted with actual malice by republishing the article on his Twitter account after this lawsuit was filed. On this point, we respectfully disagree.”
An inference of actual malice could result from republication, Judge Colloton wrote, quoting from the Iowa Supreme Court’s 2014 decision in Bertrand v. Mullin, which said, “It goes without saying that a speaker who repeats a defamatory statement after being informed of the statement’s unambiguous falsity does so at the peril of generating an inference of actual malice.”
Nunes’ initial complaint filed in September 2019 denied the allegations in the Esquire article, but two months later Lizza posted a tweet with a link to the article saying: “I noticed that Devin Nunes is in the news. If you’re interested in a strange tale about Nunes, small-town Iowa, the complexities of immigration policy, a few car chases, and lots of cows, I’ve got a story for you.”
As a result, the Court of Appeals held that Nunes adequately alleges that Lizza intended to reach, and actually reached, a new audience by publishing the tweet with a link to the original article.
The case now goes back to the U.S. District Court in the Northern District of Iowa for further proceedings on Nunes’ claim alleging defamation by implication, and the related conspiracy claim, with respect to Lizza’s republication on Twitter.