RICHMOND, Va. (CN) — A Virginia defamation lawyer appeared unlikely to convince the Fourth Circuit Wednesday afternoon that a handful of the country’s largest media companies were behind a conspiracy to snatch a book deal away from a woman adjacent to General Michael Flynn and the Russian investigation.
“These allegations are extremely defamatory and they were made intentionally to destroy the reputation of General Flynn and plaintiff,” argued Charlottesville-based attorney Steven Biss, who represented Congressman Devin Nunes in several failed defamation claims in the state.
During Wednesday’s digital hearing before the Fourth Circuit Court of Appeals, he represented Svetlana Lokhova, a Russian academic who said she was the victim of a conspiracy to link her to a non-existent sexual relationship with Flynn with the intention of destroying her image.
A federal judge dismissed the case for failure to state a claim, and comments made by the three-member panel Wednesday suggest Lokhova will face a similar uphill battle on appeal.
“When we talk about Russian collusion in this complaint, any mention of Russian involvement is about my client and Halper was the source,” Biss argued in the dispute against American foreign policy scholar Stefan Halper, The Washington Post, The New York Times, Wall Street Journal, MSNBC and all the outlets’ parent companies.
Biss argued the lower court failed to give his client a proper chance to link the allegations in the complaint with facts that would prove him correct.
“Four years after the fact we now know through classified material that Halper was the source,” he said.
But pushback on the lawyer’s request came swift with the appeals panel asking him to cite facts in the complaint that back up the allegations being made.
“Can you back up and identify what the defamation is?” asked U.S. Circuit Judge Stephanie Thacker.
“That my client had an affair with my client Michael Flynn,” Biss replied.
“Where does it say that in the record that your client had a sexual relationship with anybody?” the Barack Obama appointee fired back.
Biss then pointed to several paragraphs throughout the complaint, noting all the allegations put together show that Halper, through stories written by the defendant media outlets, knew about a book deal Lokhova had nearly secured and, using their great academic and media resources, destroyed their client’s chances of publication.
“It says your client had expectations of book deal and employment and then defendants had knowledge of those dependencies. Do you have anything with more factual specificity?” asked U.S. Circuit Judge A. Marvin Quattlebaum, a Donald Trump appointee. “Some might say that’s a bit conclusory. Do you have anything with facts that he actually knew about them?”
“Halper was the convener of these intelligence meetings,” Biss responded. “As a result of his position and his interactions, he was aware of her book deals and business expectancies.”
A team of lawyers representing each defendant had limited response time but almost all pointed to Virginia statute of limitations law they argued should end the disputes.
Seth Berlin, with the DC-based Ballard Spahr who represented Dow Jones as publisher of the Wall Street Journal, noted the articles which made up the basis of Lokhova’s filing were over two years old when the complaint was filed, well outside of the state’s one-year limit.
“The plaintiff sat on her hands on it and should be barred,” he said.
Laura Handman, with the DC-based Davis Wright Tremaine, defended the Washington Post and MSNBC in the dispute. She said the tweets and broadcasts mentioned in the plaintiff’s lawsuit, published in 2018, should similarly be time barred.
“You can just get where you need to go with Virginia law,” responded U.S. Circuit Judge James Wynn, another Obama appointee. But he still pressed her on on-air contributor Malcolm Nance, whom Biss tried to link to the network.
“Mr. Nance was never served after being added in the amended complaint,” she responded, before noting he’s also not an employee of the company, but rather a freelancer. She also pointed to a tweet from Nance which Biss argued furthered the conspiracy.
“His July tweet was from his personal account,” she said. “Yes, he’s an expert, that’s why he's on TV. But he’s not doing the business of NBC on his personal account.”
Biss pushed back on the statute of limitations concerns by arguing every time a tweet with a link to one of the offending articles, or another article was published with a hyperlink to the offending coverage, was published it should restart the clock.
“These hyperlinks are per se republication,” he said. “When they put the hyperlink in the article they intend to republish it.”
“Under your theory of republication, when does the statute of limitations ever end?” Thacker asked. “Doesn’t it run afoul of single publication rules that aim to avoid an overwhelming multiplicity of lawsuits especially in the age of the internet?”
But Biss suggested the court adopt a new republication rule which would bring Lokhova’s complaint in line with the law.
“It’s a question of who's responsible for putting it into the stream of commerce,” he said. “They should be the ones responsible.”
Notably Philadelphia Newspapers v. Vahan H. Gureghian, a 2012 case decided by the Third Circuit, found hyperlinks couldn’t be used in such a manner.
“Websites are constantly linked and updated. If each link or technical change were an act of republication, the statute of limitations would be retriggered endlessly and its effectiveness essentially eliminated,” wrote U.S. Circuit Judge Thomas Ambro, a Bill Clinton appointee, in a dispute that also aimed to extend the clock on a defamation claim.
Terrance Reed, with the Alexandria, Virginia-based Lankford & Reed, argued for Halper along the same lines as the Philadelphia case when Biss tried to pin retweets on his client.
“There’s no allegation that Halper controls a media company, let alone down stream media chatter,” he said. “The idea that someone could write a tweet in response to an article that could trigger internet chatter for decades; that could keep the statute of limitations going forever.”
Reed also pointed to other problematic lines from the complaint, including a line that calls Halper a “ratfuck” and “a spy.”
“It’s also arguably defamatory,” Thacker asked.
“Yes, as to my client,” Reed responded. “But that’s not an issue for this court.”
The judges did not say when they intended to rule on the dispute.Follow @@BradKutner
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