WASHINGTON — A federal appeals court is allowing Rep. Devin Nunes to sue a journalist over a tweet linking to a magazine story he wrote about the congressman, reversing part of a lower court ruling that had dismissed the case entirely.
The 8th Circuit Court of Appeals on Wednesday upheld a lower court’s finding that the article, published in 2018 by Esquire, did not defame Nunes, a California Republican.
But the appeals court is allowing Nunes to sue the story’s author, Ryan Lizza, over a social media post that linked to the piece after Nunes initially filed the lawsuit.
Lizza posted a link to the story, which suggested that Nunes’ family’s farm in Iowa employed undocumented immigrants, in November 2019. By then, the judges found, Lizza should have known that Nunes was contesting the story and should not have continued to promote it.
A three-judge panel ruled that, in doing so, Lizza essentially republished the story as a means to reach a new audience. Nunes sued over the story in September 2019, claiming it defamed him.
The appeals court agreed that the story was not outright defamatory, but that tweeting the story once more could be interpreted as republication with actual malice, even though the story itself was unchanged.
“The pleaded facts are suggestive enough to render it plausible that Lizza, at that point, engaged in ‘the purposeful avoidance of the truth,’” wrote Judge Steven Colloton in the 8th Circuit Court of Appeals’ opinion. Colloton was joined by Judges Lavenski Smith and Ralph Erickson.
Lizza, who now works for Politico, declined to comment. An attorney for him did not respond to a request for comment. Nunes’ team and two of his lawyers did not respond to a request for comment.
Nunes first sued Lizza and his former employer, Hearst, which owns Esquire, in the Northern District of Iowa, claiming that he was defamed by the story suggesting that the farm owned by Nunes’ brother and parents had employed undocumented immigrants. He sought $75 million in damages from the magazine publisher.
Judge C.J. Williams in the Northern District of Iowa dismissed the suit in August 2020, saying that statements Nunes’ lawyers cited did not harm the congressman, were opinions or did not actually concern him. The judge also wrote even if statements in the story were defamatory, Nunes failed to prove that they were made with “actual malice,” which he would need to do as a public figure.
Nunes has previously claimed that posting articles that he claims are defamatory to social media is also defamatory. His legal team has used reporters’ and news organizations’ tweets and follower counts as a means to demonstrate how wide of an audience news stories that he claims defamed him reach.
First Amendment experts and lawyers have questioned the appeals court’s ruling, citing problems for journalists.
“This might be the worst part of the 8th Circuit decisions,” Ari Cohn, a First Amendment lawyer, wrote on Twitter. “Drawing attention to an already-published article just is not a republication, period. There has been no additional copy of the material created, and it is available to the exact same audience as it always has been.”
This case is one of 10 lawsuits Nunes has filed against people and organizations who have criticized him since 2019, including McClatchy, which publishes The Fresno Bee; The Washington Post; CNN and an investigative research firm known for the so-called Steele dossier. Some defendants in lawsuits filed by Nunes have been dropped or dismissed. Nunes has refiled cases or appealed several of those decisions.
Nunes’ family and its farm, NuStar Farms, are also suing Lizza in a separate case in Iowa.
