Devin Nunes seeks revival of defamation case over Esquire article about his family farm

(CN) — Former California Representative Devin Nunes urged a federal appeals court panel Wednesday to revive defamation suits against political writer Ryan Lizza and Esquire magazine over a 2018 article he and his family argue falsely implied their Iowa dairy farm illegally employed undocumented immigrants — and that Nunes conspired to cover it up.

Nunes and his family, owners of NuStar Farms, say an Iowa federal court prematurely dismissed the case in a 2023 ruling granting summary judgment to Esquire publisher Hearst Magazines, which should be overturned by the St. Louis-based Eighth Circuit Court of Appeals.

“The vast summary judgment record in this case discloses numerous genuine issues of material fact such that Hearst and Lizza are not entitled to judgment as a matter of law,” Nunes and his family say in a brief filed with the court.

“There is a genuine issue of material fact as to whether the defamatory statements about the NuStar plaintiffs are false,” they wrote, including whether NuStar Farms knowingly employed undocumented workers and the implication that the NuStar plaintiffs conspired with Nunes to hide the story.

Nunes, a Republican who represented California in the U.S. House for 18 years and is now CEO of Trump Media & Technology Group, sued Lizza and Esquire in 2019. Nunes claims the September 2018 Esquire story, headlined “Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret,” was filled with errors, and falsely implied that Nunes conspired with his family and others to cover up charges that the farm employs undocumented workers.

He argues that Lizza’s article was a hit piece that unduly damaged Nunes’ reputation in Congress, and in turn asked the court to punish both Lizza and Hearst to the tune of $77 million.

Nunes’ family’s NuStar Farms dairy farm, based in Sibley, Iowa, filed a similar defamation action against Hearst and Lizza in January 2020. The two cases have been consolidated.

In the first appeal in the case in 2021, a different Eighth Circuit panel held that Nunes made related defamation by implication claims — that facts were omitted or juxtaposed in a way to imply a defamatory connection — that the trial court needed to reconsider.

U.S. District Judge C.J. Williams, a Donald Trump appointee, found for a second time in April 2023 that Nunes did not show he suffered any material harm as a result of the article, prompting the second appeal.

On Wednesday, U.S. Circuit Judge Bobby Shepherd, a George W. Bush appointee, asked Nunes’ attorney Jesse Binnall of the Binnall Law Group in Alexandria, Virginia, to confirm a statement in the court record: “There is no genuine dispute of material fact that it is substantially true that NuStar used undocumented labor.”

Binnall acknowledged the statement, but he added: “The phrase at issue is ‘knowingly.’ And why that’s so important is because there are federal laws that govern how you can ask somebody about their status. If a farm would have simply gone to people, based on the language they spoke, the color of their skin, anything else like that in trying to get more specific on whether or not they had legal status — they could have been sued. They could theoretically have been prosecuted. You cannot do that.”

U.S. Circuit Chief Judge Steven Colloton, also a George W. Bush appointee, asked Binnall to clarify the question around illegal hiring.

“The dispute,” Binnall replied, “is what NuStar knew and when they knew it.”

Hearst attorney Jonathan Donnellan urged the judges to focus on the constitutional question in the case, including the burden of proof for falsity and fault.

“The most demanding burden, of course, is to actual malice,” he said. In the first Nunes decision, “this court stated that the pleaded facts were suggestive enough to render a plausible case that Mr. Lizza engaged in avoidance of the truth. Discovery has answered this question of what the impact of the retraction letter and the complaint actually was on Mr. Lizza, and there’s no evidence in the record at all to lead Mr. Lizza to believe the challenged implication was false in any way.”

Also on the panel hearing Wednesday’s argument was U.S. Circuit Judge James Loken, a George H.W. Bush appointee. The court did not say when a ruling would be issued.

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