Federal Judge Asked to Toss Devin Nunes Defamation Case

Rep. Devin Nunes, R-Calif., at a March 2018 hearing. (AP Photo/Jose Luis Magana, File)

DES MOINES, Iowa (CN) — Lawyers for Hearst Magazines and journalist Ryan Lizza on Friday urged an Iowa federal judge to dismiss defamation claims filed against them by California Congressman Devin Nunes and his family over an article about their family farm.

After two hours of oral argument conducted by phone, U.S. District Judge C.J. Williams, appointed by President Donald Trump, told the lawyers he would take the matter under advisement and rule later.

Nunes, a Republican representing California’s 22nd congressional district, sued Hearst and Lizza last September over a 2018 article Lizza wrote for Esquire magazine about how Nunes’ family moved its dairy farm from California to northwest Iowa. The story – headlined “Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret” – suggested there was a scandal involved and that Nunes attempted to hide the Iowa move.

Nunes’ father and brother, who operate the Iowa dairy farm they purchased in 2007 after selling the family farm in California, filed a separate suit in January making many of the same allegations. The two cases were combined for Friday’s oral argument.

Nunes’s suit asks for $77.5 million in damages and the Nunes family seeks $25 million.

Esquire’s story suggested the “politically explosive secret” was that the Nunes farm in Iowa uses undocumented labor, suggesting apparent hypocrisy on the part of the congressman in light of his support for President Trump’s attacks on undocumented immigrants.

Hearst attorney Jonathan R. Donnellan told Judge Williams that the Esquire article “is core political speech protected by the First Amendment” because it focused on a high-profile and powerful member of Congress. Donnellan argued that Nunes’ lawsuit aims to “weaponize libel law” to attack his critics and prevent Esquire and other publications from criticizing the congressman.

In response, Nunes’ lawyer, Steven S. Biss of Charlottesville, Virginia, said there is a corresponding interest to the interest in protecting free speech, and that is Nunes’ “liberty interest in protecting his reputation.”

Biss said Esquire’s story juxtaposed Nunes’ alleged “secret” with an alleged conspiracy by Nunes and others to conceal the fact that the Iowa dairy farm uses undocumented labor.

“That is the defamatory gist of this article,” Biss said.

Hearst and Lizza argued in briefs filed with the court that the Nunes suits should be dismissed because the plaintiffs failed to plead facts that support a defamation claim, that they cannot state a claim for defamation as a matter of law, and that if not dismissed the plaintiffs should resubmit their complaint with a more definite statement.

Biss argued a jury should decide the case.

Nunes’ 2019 complaint alleges that the defendants’ intent was to defame him because of his role as then-chairman of the House Intelligence Committee and strong defender of President Trump.

Referring to the story as “the Lizza Hit Piece,” the complaint said it was “a deeply flawed and desperate attempt by the defendants (a) to intentionally target plaintiff and disparage him approximately one month ahead of the November 2018 congressional election, (b) to undermine confidence in plaintiff and interfere with his official duties as chairman of the House Intelligence Committee to investigate Russian interference in the 2016 presidential election, and (c) to retaliate against plaintiff for exposing corruption, including, without limitation, the [Democratic National Committee] and [Hillary] Clinton campaign’s role in funding the salacious ‘Steele dossier.’”

Nunes’ complaint states that Lizza and Hearst “acted with actual malice and reckless disregard for the truth,” and their statements, published in the magazine and widely repeated on social media, caused the congressman to “suffer loss of standing in his professional field, insult, pain, embarrassment, humiliation, and mental suffering, harm to his name and reputation, out-of-pocket loss and other actual damages.

University of Iowa law professor Todd Pettys said a public figure such as Nunes has a hard time succeeding in a defamation suit.

“Because of the Supreme Court’s finding that the First Amendment ensures we can write and speak about our elected leaders in ways that are ‘uninhibited, robust, and wide open,’ the odds of Congressman Nunes ultimately prevailing in this suit are very, very low,” he said in an email Friday.  “He will have to show by ‘clear and convincing evidence’ that Lizza and Hearst Magazines either knew their statements were false or subjectively ‘entertained serious doubts’ about the truth of their statements.”

Pettys continued, “It’s not enough for the congressman to show that the statements were indeed false – he has to show that the defendants either knew the statements were false or knew there was a good likelihood that the statements were false and yet published them anyway.”

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