Devin Nunes lost in court against a magazine. Now he wants to change US libel law
President Donald Trump frequently argues that libel laws should be changed so media companies can more easily be sued over stories about public figures like politicians.
Rep. Devin Nunes, a close Trump ally, is now making that case in court.
In a new legal brief, the California Republican is urging a federal appeals court to reconsider a 1964 Supreme Court case that’s considered the bedrock of U.S. libel law. That case, known as New York Times vs. Sullivan, holds that public officials can successfully sue news organizations only if they can prove that journalists act with “actual malice” in publishing false information.
It’s a high bar that Nunes so far has not been able to clear in the five lawsuits he’s filed against media companies since 2019.
The new brief is an appeal to an August decision by a federal judge in Iowa dismissing Nunes’ lawsuit against Esquire Magazine, which in 2018 published a story about the congressman’s family moving its dairy from California to Iowa and suggested that the operation likely relies on undocumented immigrants for farm labor.
In dismissing the case, Judge C.J. Williams wrote Nunes ‘complaint relies on ‘naked assertion[s]’ and ‘labels and conclusions’ which are devoid of ‘further factual enhancement,’ to establish actual malice.”
The judge continued, Nunes “cannot rely on general assertions and must plead facts to support a finding of actual malice. Although it is difficult for politicians like plaintiff to plead actual malice against the media ... that is precisely the result the First Amendment requires.”
Nunes is appealing that decision to the United States Court of Appeals for the Eighth Circuit, saying the current standard for defamation of a public figure should be thrown out, arguing it is “outdated” in the era of mass communication and social media.
“Continuing to apply the rule subverts personal liberty and human dignity,” Nunes’ attorney Steven Biss wrote in the appeal. “The rule poses a substantial risk to our democracy because it discourages qualified otherwise qualified candidates from seeking public office, and it facilitates the proliferation of false information, which has no First Amendment value.”
This is the first time Nunes has argued in court that longstanding case law on defamation should be overturned, but it echoes what President Donald Trump has said many times. Trump and Nunes have been close allies since Trump’s election in 2016. In one example, in September 2018, after a book was published about Trump that contained unflattering details, Trump tweeted that it was a “shame” that “someone can totally make up stories.”
“Don’t know why Washington politicians don’t change libel laws?” he tweeted.
But Congress did not establish any federal libel law; the Supreme Court set that legal standard in Times vs. Sullivan. That means the “only way” that law would change is if the Supreme Court overturns that precedent, according to Lee Levine, senior counsel at Ballard Spahr specializing in libel law.
“Nunes and his lawyer are not the first people to do this in the past few years,” Levine said. “It’s become a standard practice for lawyers in defamation cases like this to include in their briefs that Sullivan should be overruled.”
Levine said that was spurred by a concurring opinion written by Justice Clarence Thomas in 2019 — and joined by no other justices — which said that Thomas thought the court should revisit the Sullivan standard. But despite that opinion, Levine said he believed it was highly unlikely the Court would be overturning that standard anytime soon, even if the Court added another conservative justice with nominee Amy Coney Barrett.
“The Supreme Court taking a case on whether Sullivan should be overruled has the same chance of them taking a case on whether Brown vs. Board of Education should be overruled,” Levine said, citing the 1954 cases that ended segregation in public schools. “They’re both pillars of law.”
Nunes would also likely have a procedural issue that bars him from making this argument. Biss does not mention the Sullivan case in his previously dismissed complaint, which Levine said could prevent him from being able to make the argument in an appeal.
Nunes since March 2019 has filed seven lawsuits against media companies, political groups, anonymous users on Twitter and one of his own constituents claiming they defamed him.
Four of those lawsuits have been either partially or entirely dismissed, but Nunes has either appealed or re-filed in each of those cases. His campaign ended one of the cases when it voluntarily withdrew a lawsuit against critics who challenged Nunes’ description of himself as a farmer in materials sent to voters before the 2018 election.
Others he is suing, including McClatchy, the parent company of The Fresno Bee, are arguing to dismiss cases against them. McClatchy has called Nunes’ lawsuit against the company a “baseless attack on local journalism.”
This story was originally published October 7, 2020 at 1:35 PM with the headline "Devin Nunes lost in court against a magazine. Now he wants to change US libel law."
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