MANHATTAN (CN) — One of the many Devin Nunes defamation sagas continued Tuesday at the Second Circuit where his attorney focused on the photo that CNN paired with its article on the congressman to bring the case to trial.
“It was not a picture of him in California harvesting some avocados or something,” Steven Biss, attorney for Nunes, told an appeals panel in Manhattan this morning. “It shows a picture of him during the impeachment hearings in D.C.”
Biss says that photo is enough to undercut the District Court's reliance on California law in dismissing the case this past February.
When Nunes sued CNN in December 2019 for nearly half a billion dollars, the California Republican originally selected Virginia as the venue. The state is unique for having weaker anti-SLAPP laws, short for strategic lawsuit against public participation, which allow defendants that prevail against frivolous defamation lawsuits to collect attorney fees from their court opponents.
Nunes was indeed claiming defamation, saying CNN was maliciously focused on harming his reputation when it quoted statements by Lev Parnas, the indicted Rudy Giuliani associate, implicating Nunes in the conduct that eventually led to former President Donald Trump's first impeachment.
Trump would eventually be acquitted in the Republican Senate, but the Democratic-controlled House found that he abused the power of his office and obstructed congressional oversight into his attempts to gin up an investigation in Ukraine of his expected 2020 election rival, Joe Biden.
The Ukraine-born Parnas offered testimony to investigators not only about Trump but several of his political allies, saying Republican Congressman Nunes met with a former Ukraine official to get some dirt on Biden prior to the 2020 election. Critics including Nunes protested that Parnas could not be trusted, willing to say anything that might help him duck an unrelated criminal prosecution. If immunity was the goal, it did not pan out. Just last month, Parnas was convicted of facilitating and concealing illegal political donations in U.S. elections that were funded by a wealthy Russian businessman.
CNN meanwhile removed the defamation suit from Nunes to New York where a federal judge threw it out in February. Leaning on the laws of California, where Nunes represents areas of the rural San Joaquin Valley, the court said the congressman's failure to timely demand a correction or retraction from CNN limited his possible relief to special damages. And in that respect, according to the ruling, his pleadings fell short.
Trump appointed all three members of the Second Circuit panel that considered Nunes' appeal on Tuesday, where Biss argued that California law has no place in this case since the “place of wrong” is New York.
“The online article was published in New York,” said Biss. “The broadcast was made from New York.”
He had to rephrase, however, upon prodding from U.S. Circuit Judge Michael Park questioned this argument, who noted, “We don’t know from the complaint where the publication took place."
Biss acquiesced, saying he was fairly certain it was first published in New York.
Stephen Fuzesi, an attorney for CNN with the firm Williams & Connolly, told the panel that where the article was published has no bearing on what state law should apply, because the state in which Nunes would be harmed the most by the alleged defamation is his home state — a point CNN stressed in their brief.
“After all, Representative Nunes was elected to Congress by the people of his home district in California; it is, therefore, his reputation among the constituents of his home district that is of particular importance to his ability to continue his work in the nation’s capital,” the CNN brief states.
Scott Dodson, a law professor at the University of California, Hastings College of Law, in San Francisco, says having a case in the right state is an important factor.
“Where a lawsuit is heard matters. Juries in California, Virginia, and New York differ. Federal judges in those states might also differ,” Dodson said in an email. “So it’s not uncommon for the parties to fight about the proper forum.”
When the case was moved to New York, a judge found that it had “nothing to do with Virginia.”
This is not Nunes first go at a defamation suit, he had also sued The Esquire for running a story that claimed his family farm in Iowa was hiding a big political secret. A federal judge dismissed that case last August, but in September the Eighth Circuit revived some the claims, finding a reasonable reader may interpret the story to mean that his family farm used undocumented workers, which would be a blow to his political reputation. The appeals court affirmed the rest of the lower court’s ruling.
Nunes has also sued the Washington Post for defamation for running two stories that allegedly inaccurately described his relationship with a former Trump aide. Twitter has also been hit with a defamation suit by the congressman for allowing parody accounts to post about him while also allegedly suppressing conservative views on their app.
Neither Bliss nor Fuzesi immediately responded to emails seeking comment.
U.S. Circuit Judges Steven Menashi and William Nardini rounded out the panel.
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