(CN) — A federal appeals court on Wednesday kept alive California Congressman Devin Nunes’ defamation suit against Esquire magazine and political writer Ryan Lizza, finding that while the publication is partly protected under the First Amendment, Nunes made related defamation claims that should be reconsidered by the trial court.
Nunes, a Republican who has represented California’s 22nd Congressional District since 2003, accused Lizza and Esquire of publishing false and defamatory statements about him in a 2018 article saying he was hiding a “politically explosive secret” involving his family’s dairy farm in northwest Iowa. The congressman asked for $75 million in compensatory damages and $2.5 million in punitive damages in the complaint filed in Sioux City federal court in 2019.
Nunes claimed the Esquire story, headlined “Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret,” was filled with errors. The complaint, which repeatedly referred to the article as “the Lizza hit piece,” called it a “legion of lies” that “falsely states or implies that plaintiff owned an interest in his family’s farm in Sibley, Iowa, and that plaintiff was involved in hiding a ‘politically explosive secret.’”
The article questioned why the Nuneses and others would “conspire to hide the fact” that the family had sold its farm in California and moved to Iowa. Lizza, who is now Politico’s chief Washington correspondent, also described being followed by members of Nunes’ family and says two sources told him that the dairy — called NuStar Farms — relied partly upon undocumented labor.
U.S. District Judge C.J. Williams dismissed all of Nunes' claims in an August 2020 ruling saying the allegedly defamatory statements in the Esquire article were either admittedly true, opinion, did not directly concern Nunes or were protected by the First Amendment.
The St. Louis-based Eighth Circuit on Wednesday affirmed that ruling in part, reversed it in part and sent the case back to the district court for further proceedings.
The three-judge panel ruled unanimously that the district court correctly dismissed Nunes’ claim that Lizza story defamed him by alleging Nunes improperly used his position as chairman of the House Permanent Select Committee on Intelligence. But the panel disagreed with the trial court on two other claims by Nunes.
Nunes claimed the story’s assertions regarding the Nuneses’ Iowa dairy farm’s alleged use of undocumented workers amounted to “defamation by implication” because the story suggested Nunes conspired with others to hide this “politically explosive secret.” The trial court said “no reasonable reader” could draw that implication from the article.
The Eighth Circuit disagreed.
“A reasonable reader could conclude, from reading the article as a whole, that the identified ‘secret’ is ‘politically explosive’ because Nunes knew about his family’s employment of undocumented labor,” U.S. Circuit Judge Steven Colloton, a George W. Bush appointee, wrote for the panel. “And revelation of that fact could be politically damaging to a member of Congress who demonstrates ‘unwavering support for ICE’ and who is among the ‘allies’ of President Trump who have denounced ‘amnesty’ for undocumented workers.”
The appeals court, however, agreed with the trial court that Lizza and Esquire are protected under the First Amendment by the U.S. Supreme Court’s “actual malice” standard established in the 1964 decision New York Times v. Sullivan. Actual malice under Sullivan means a statement is made “with knowledge that it was false or with reckless disregard of whether it was false or not.”
While Nunes invited the Eighth Circuit to reconsider that standard, the court said, “but of course we are bound to apply it.”
Still, the panel said Nunes makes a “plausible allegation” that Lizza acted with actual malice by republishing the article on his Twitter account after Nunes’ lawsuit was filed.
“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,” Colloton wrote.
He added, “In November 2019, Lizza was on notice of the article’s alleged defamatory implication by virtue of this lawsuit. The complaint alleges that he then consciously presented the material to a new audience by encouraging readers to peruse his ‘strange tale’ about ‘immigration policy,’ and promoting that ‘I’ve got a story for you.’ Under those circumstances, the complaint sufficiently alleges that Lizza republished the article after he knew that the congressman denied knowledge of undocumented labor on the farm or participation in any conspiracy to hide it.”
The court sent the case back to the district court for further proceedings on Nunes' claims of defamation by implication and republication.
Colloton was joined on the panel by U.S. Circuit Judges Lavenski Smith, a George W. Bush appointee, and Ralph Erickson, a Donald Trump appointee.
Neither Nunes’ lawyer, Steven Biss of Charlottesville, Virginia, nor Jonathan Donnellan, counsel for Lizza and Esquire, responded to a request for comment Wednesday.
The Nunes family filed a separate suit in Iowa federal court last year making similar claims on behalf of the congressman’s father and brothers. The trial judge dismissed all but one of the Nunes family's claims in September 2020, keeping in place the allegation that the defendants defamed them by falsely stating they knowingly employed undocumented workers. A trial on that issue is scheduled for February 2022.
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