Another Day, Another Devin Nunes Defamation Suit Gets Ground Into Hamburger

Legal

Pour one out for Congressman Cowpoke as another of his lawsuits goes udders up, this time in the green pastures of Iowa's federal court. Last fall, Rep. Devin Nunes and his razzledazzle libelslander lawyer Steven Biss splatted out this cowpie of a defamation suit on Ryan Lizza over an article he'd written about the congressman's family.

See, back in 2006, Nunes's parents and his brother decided that Californy was not the place to be, so they loaded up the truck and moved to Sibley. Iowa, that is. Cows. And undocumented immigrants.

Nevertheless, Nunes continued to describe himself as a dairy farmer, despite the fact that he no longer owned a stake in the business, and seems to have taken some pains to hide the fact that his family was no longer farming in California. For instance, Nunes appeared with Rep. Steve "What's So Offensive About White Nationalism?" King just 50 miles away from his family's farm in Iowa, but the press release made no mention of it, instead saying that his "family has operated a dairy farm in Tulare County, California for three generations." Which certainly made it sound like an ongoing concern in the Golden State.


Lizza's Esquire article was a firsthand account of showing up in Sibley to write about undocumented farmworkers generally and the Nunes farm in particular, only to be chased around town and threatened by what appeared to be Nunes family members and their allies. It was a terrific read, but apparently the congressional cowpoke didn't think so, since he sued Lizza and Hearst Media for defamation and civil conspiracy.

That suit came to an ignominious end yesterday, when US District Judge C.J. Williams, a Trump appointee, dropkicked it and granted the defendants' motion to dismiss with prejudice. And while he declined to impose the requested SLAPP penalties (if you file a Strategic Lawsuit Against Public Participation as a means of shutting someone up, the courts can make you pay their lawyer fees and more), the opinion makes it clear that His Honor was none too impressed with the lawyering in this case.

For instance, Nunes's complaint opened with a charge that "Lizza is a high-profile, left-wing political journalist, well-known for his extreme bias towards Plaintiff." But if the court accepts that as factually true — as it must when determining whether to grant a motion for summary judgment — then that weakens the claim of defamation, since "any reasonable reader would construe the Article in light of Lizza's well known political bias. Thus, any reasonable reader would understand defendants' use of terms like 'secret' or 'conspired' as the type of hyperbole that is to be expected in the political arena rather than an insinuation of fact." Womp womp!

The court notes that "The Article is written in a first-person perspective and includes numerous instances of Lizza's subjective mental impressions. This weighs against the statements being reasonably construed as statements of fact as opposed to Lizza's characterizations or opinions." Besides which, most of what Nunes characterizes as "defamatory" describes Nunes's family and their farm, a business in which Nunes holds no stake, and therefore cannot be harmed. Oopsie!

Nunes's esteemed counsel argued in court that Lizza's description of the family "conspiring" to hide the fact that they no longer farm in California implies criminal conduct. Except pretending that your wayward son is actually a farmer is not a crime, and neither is conspiring with other people to keep up the charade.

The object of the "conspiracy" at issue was hiding plaintiff's family's move. Moving or concealing a move is not a crime. Because the object of the "conspiracy" is harmless, no reasonable reader could interpret the term "conspiracy" to imply criminal conduct in this context.

D'oh!

Although we simply can't agree with this part of the opinion, at least when that son is Devin Nunes.

[T]he statement "[plaintiff's] mom, who co-owns the Sibley dairy, is also the treasurer of [plaintiff's] campaign" is not actionable. Plaintiff does not allege the statement is false, and regardless, being the treasurer of one's own son's campaign does not tend to harm one's reputation. No aspect of this statement is actionable.

There's also the small matter that "Defamation per se is inapplicable against media defendants and thus irrelevant here," i.e. you can't just say "he called me a crook with venereal disease" and collect damages. (Okay, it's a little more complicated than that, but just trust me one this one.)

Because Nunes is a public figure, he has to prove actual malice. That is, he has to demonstrate — or at least credibly allege for the purposes of surviving a motion for summary judgment — that Lizza either knew his article contained false statements, or that he published them with reckless disregard for their falsehood. Nunes attempts to satisfy this requirement by citing to a mean tweet as evidence of bias. Which is very much not how this goes.

Plaintiff cites to one previous article by Lizza and a tweet by Lizza as evidence of Lizza's "extreme bias toward Plaintiff." Plaintiff does not argue that this unrelated article or tweet are evidence of actual malice, and it is not the Court's job to construct plaintiff's argument for him. In any event, the Court has reviewed the cited article and tweet. Even drawing all inferences in plaintiff's favor, the Court finds the cited items do not show an "extreme bias" toward plaintiff, and regardless, shed no light on whether defendants subjectively doubted the truth of the Article. [Citations omitted.]

Does "bias" equal "malice" in the eyes of the law? It does not! Is this the opinion of a judge who is impressed with the quality of lawyering in his courtroom? It is not!

Nunes took another stab at the "malice" requirement by pointing to all the times Lizza and the Enquirer retweeted the story, which went about as well as you'd expect. Biss and Nunes had a chance to correct their homework and amend the complaint to satisfy the legal requirements for a claim of defamation against a public figure, and they "still failed to plausibly plead actual malice." So the whole thing is being dismissed with prejudice. Buh bye!

The judge didn't even call the undocumented immigrants who may or may not work on the Nunes family farm "illegal aliens." Which is NO FAIR! But not as unfair as the fact that Nunes and Biss probably forced Hearst to spend upwards of $100,000 on legal fees to deal with this steaming turd of a lawsuit because we have no federal SLAPP law.

But if judicial shade is your kink, you might want to retire to your bunk with this opinion.

LOLOLOL!

[Nunes v. Lizza, Memorandum Opinion and Order]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.

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