A court has partially revived a defamation lawsuit filed by Rep. Devin Nunes (R-CA) against reporter Ryan Lizza, who claimed in an Esquire piece that the congressman's family had abandoned California for Iowa. Nunes claims to be a dairy farmer but was accused by critics of being a "fake farmer" because the family dairy was gone. Nunes then bought a farm.
Several legal experts said the ruling was unusual.
University of Iowa law professor Cristina Tilley told USA Today that the decision represents "a fairly new and unusual position that tweeting out an article that has already been published can make a speaker vulnerable to libel liability if the subject of the article has denied the original allegations in court."
Texas Christian University professor Chip Stewart similarly told Politico that the decision was "potentially troublesome."
"It's an odd kind of bootstrapping argument," Stewart said. "Nunes claims the underlying article is false. He sues over it. Lizza tweets the exact same story after the lawsuit is filed. And what was originally not actual malice now all of a sudden is, at least plausibly enough for a lawsuit to advance to further costly litigation. All over a tweet that changed nothing about the original story."
Reason's Elizabeth Nolan Brown called the decision "a disturbing ruling for fans of free speech." First Amendment lawyer Ari Cohn, meanwhile, called it "a highly illogical and unfounded opinion that plays directly into the hands of people like Devin Nunes and his ethically-challenged lawyer that use the expense and arduous process of litigating even frivolous lawsuits."
The United States Court of Appeals for the Eighth Circuit agreed with a lower court that there was no "malice" involved in the report and thus it doesn't meet the requirement for defamation.
"The Supreme Court's interpretation of the First Amendment requires a public official to prove that defamatory statements or implications are made with 'actual malice,' meaning 'with knowledge that it was false or with reckless disregard of whether it was false or not,'" said the court. "In this context, 'reckless conduct is not measured by whether a reasonably prudent man would have published.' Instead, 'the defendant must have made the false publication with a high degree of awareness of . . . probable falsity, or must have entertained serious doubts as to the truth of his publication.'…We agree with the district court that the complaint is insufficient to state a claim of actual malice as to the original publication."
But the court said there was a question over whether Lizza's later retweet of the article could meet the "malice" requirement.
After Nunes sued Lizza and his name was trending on Twitter, Lizza tweeted the article again 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."
The court separated the article from the tweet because "there is a distinction in defamation law between an original publication and a republication."
"The complaint here adequately alleges that Lizza intended to reach and actually reached a new audience by publishing a tweet about Nunes and a link to the article," ruled the appeals court. "Although we agree that there are insufficient allegations of express defamation, we conclude that the complaint does state a claim for defamation by implication as to a republication of the article. We thus affirm in part, reverse in part, and remand for further proceedings."
So, they are likely going back to court over the tweet of the Lizza story where Nunes will have to prove the retweeting of the story meets the "malice" requirement.
"Under the appeals court's logic, a politician may declare something defamatory and sue in court and—whether there is merit to the original claim or not—the journalist or publication who so much as draws attention to the contested article could become guilty," Brown noted.