Second Circuit shreds Nunes defamation claims against CNN

MANHATTAN (CN) — Devin Nunes hit a dead end Thursday in his defamation suit against CNN.

Back when he was a Republican congressman representing a rural swathe of central California, Nunes sued CNN for nearly half a million dollars in 2019, saying the network sought to harm his reputation when it ran a story quoting indicted Rudy Giuliani associate Lev Parnas that implicated Nunes in former President Donald Trump's efforts to look in Ukraine for dirt on Joe Biden ahead of the 2020 election.

Nunes originally brought the suit in Virginia, hoping to reap the benefits of the state’s weak anti-SLAPP laws, short for strategic lawsuit against public participation, but CNN had it moved to New York when a judge found the case had nothing to do with Virginia. 

A federal judge in New York dismissed his claims last February, finding he failed to plead that he suffered special damages. The judge leaned on California law, which set a high threshold for press defamation suits. To be eligible for damages, Nunes would have needed to demand that CNN retract or correct its report within 20 days, which he did not do.

Steven Biss, attorney for Nunes, argued to the Second Circuit last November that California law should not apply because it is not the “place of wrong,” or lex loci delicti, in this case.

The Second Circuit disagreed Thursday, however, in a 2-1 decision, finding that Nunes did indeed suffer the most harm in California, as well as some harm in his workplace of Washington, D.C., but not nearly as much as in his home state.

“These allegations are insufficient to overcome the presumption that Nunes suffered the greatest harm in his home state of California among those constituents who were responsible for sending him to Washington, D.C., in the first place,” U.S. Circuit Judge William Nardini wrote for the majority. “Nunes was domiciled in California and, as one of California’s representatives in Congress, was accountable to his constituents there.”

Nardini, a Trump appointee, relied on the Virginia Supreme Court rule of lex loci delicti in reaching the decision, noting that, while Virginia never explicitly said how the rule would apply to a defamation suit like this, the court thinks it would still focus on the place the claimant suffered the most reputational harm.

Writing in dissent, U.S. Circuit Judge Steven Menashi, a Trump appointee, took issue with the Virginia rule, saying this case is too broad to have one place of wrong and that he would have instead applied New York law where CNN made the report.

“The place of the wrong in a defamation case is where the defamatory statement was published, meaning the place in which a third party first receives it,” said Menashi. “With a nationwide broadcast, it is not possible to identify one such place.”

Menashi also parted with the majority on its finding that Nunes suffered the greatest harm in California, saying instead Nunes suffered more in Washington, D.C.

“The district court simply asserted that he must have suffered ‘a greater injury … in the home state that sends him to Congress as the representative of his district’,” said Menashi. “That conclusion is not so obvious that it can be asserted with no analysis of the factual allegations. Those allegations indicate that Nunes was a high-profile figure in the impeachment proceedings in Washington, and CNN’s statements about his involvement in the subject matter of those proceedings affected his role.”

Nunes has brought several defamation suits over the years, including against Twitter, The Esquire and The Washington Post. An appeals court in Washington, D.C., dismissed the claims against the Washington Post earlier this month, and the Eighth Circuit dismissed most of his claims, but revived some, against The Esquire in August of 2020.

Nunes stepped down from his congressional seat at the end of last year to take on a new role as chief executive of the social media venture Trump Media & Technology Group.

All three judges on the case that the Second Circuit decided Thursday are Trump appointees. U.S. Circuit Judge Michael Park joined Nardini in the majority.

Neither Biss nor Stephen Fuzesi, an attorney for CNN with the firm Williams & Connolly, immediately responded to requests for comment. 

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