Originally published in Bloomberg Law, September 20, 2021, 5:00 AM; Updated: September 21, 2021, 4:06 PM
The revival of Rep. Devin Nunes’ libel lawsuit over an Esquire article raises new questions about how the Supreme Court’s half-century-old “actual malice” standard for public figure defamation liability applies in the digital age.
The U.S. Court of Appeals for the Eighth Circuit ruled Nunes (R-Calif.) failed to plausibly allege that writer Ryan Lizza and publisher Hearst Magazine Media Inc. recklessly disregarded the truth when it first published Lizza’s article about Nunes. But it added that Lizza may have crossed the line when he sent a tweet linking to his 2018 Esquire article after he was sued for defamation over it.
That put the court into a contested area of First Amendment and defamation law: how to apply print-publication definitions to social media, where a single tweet can instantly put an old article in front of a new audience of millions. If posting an old link or retweeting can be considered a new publication, it could create new liability for defamation if what the poster knows or should know has evolved since something was first published.
Rep. Devin Nunes (R-Calif.) shows documents that he wants Fiona Hill, former top Russia advisor to the White House, and David Holmes, political counselor, to receive before they provide testimony in the impeachment inquiry of President Donald Trump on November 21, 2019.
(Photo by Bonnie Jo Mount/The Washington Post via Getty Images)
“This is not the final ruling in this case. But it is saying that, as a matter of law, the court is not buying the idea that a retweet is not a new publication,” said Jane Kirtley, a media ethics and law professor at the University of Minnesota. “It is a very very tricky area and not very well parsed in the law at this point.”
Kirtley said old guidelines for what constitutes a new publication may not make as much sense in the context of social media.
The Eighth Circuit noted that courts have ruled that certain references or links to old articles didn’t constitute republication, but the decisions “do not hold categorically that hyperlinking to an original publication never constitutes republication.” It said, for example, that an evening edition of a morning newspaper is a new publication that reaches a new audience.
The court stopped short of taking up Nunes’ request to flout the “actual malice” standard from the Supreme Court’s 1964 decision in NY Times v. Sullivan, which has increasingly come under fire, Kirtley said. Still, she said the finding concerned her, as news organizations should get “the broadest possible latitude” for this kind of reporting.
I actually applaud the court for saying we need to reinstall the guardrails. Generally courts have treated the political domain as a wild west of ‘shoot first ask questions later, don’t worry about the truth because it’s a rough and tumble world.’ — Lee Plakas
“I actually applaud the court for saying we need to reinstall the guardrails,” Plakas said. “Generally courts have treated the political domain as a wild west of ‘shoot first ask questions later, don’t worry about the truth because it’s a rough and tumble political world.’”
The reinstatement of the lawsuit against Esquire and Lizza was a rare win for Nunes, who since 2019 has also sued CNN, the Washington Post, and research firm GPS Fusion for defamation. He’s also sued Twitter in a bid to learn the identities of anonymous parody accounts @DevinCow and the defunct @DevinNunesMom while alleging Twitter facilitated their defamation. District courts ultimately dismissed all of those bids; appeals in some are pending.
Nunes sued Lizza and Hearst in September 2019, a year after publication of Lizza’s article “Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret.” The article cited anonymous sources saying Nunes’ family’s farm’s used undocumented immigrant labor as he supported anti-immigration President Donald Trump. The Third Circuit also determined that the article implied Nunes conspired to conceal the “politically explosive secret.” Nunes said he didn’t manage the farm, or know of any undocumented labor.
Nearly two months after the complaint was filed, Lizza sent a tweet noting Nunes “is in the news” and linking his 2018 article.
The appeals court said the lawsuit had put Lizza on notice that Nunes denied the allegations, plausibly meeting Sullivan’s “actual malice” standard: at least a reckless disregard for truth.
Public figures would get too much leverage if disregarding mere allegations cleared the bar of what’s actual malice, Freedom of the Press Foundation spokesperson Parker Higgins said.
“Filing a frivolous lawsuit shouldn’t give you new rights, and it shouldn’t give you more power to suppress speech and control what others are saying about you,” Higgins said. “In a situation where this wasn’t Devin Nunes, maybe you could say allegations in the underlying suit are credible. But at a certain point, you have to recognize when someone is routinely a bad actor.”
Most states have adopted the so-called single-publication rule to prevent a barrage of lawsuits over the same libel in a single publication. The Eighth Circuit opinion “seems to admit many cases go the opposite way” on republication, Media Law Resource Center executive director George Freeman said.
He also criticized the court’s taking Nunes’ complaint as a plausible basis for establishing that Lizza acted with actual malice, saying that people alleging defamation always deny claims about them.
“That makes no sense in 50 years of libel law practice. What it’s saying is if you get a general denial from the person you’re attacking, that’s actual malice,” Freeman said. “If that were true, 95% of cases that were dismissed for actual malice were wrongly dismissed.”
But putting the claim in a lawsuit raises the stakes, Plakas said.
He dismissed the notion that the opinion would invite lawsuits attempting to freeze publishers from retweeting and sharing their stories. Lizza and Hearst could quickly turn around and move for summary judgment, which would force Nunes to make his case with evidence, he said.
He said he hopes the decision drives entities to be more accountable, and “pulls us back into the center of intellectual honesty.“ Jurors of defamation law may scratch their heads in trying to understand the definitions, he said, but the bottom line is “retweeting someone else’s falsehoods, you can’t do that with impunity.”
Retweeting someone else’s falsehoods, you can’t do that with impunity. — Lee Plakas
The proliferation of fake news from the internet and social media eliminating editorial barriers doesn’t justify overturning Sullivan, Kirtley said. She said libel lawsuits are generally a “poor approach” to addressing unaccountable publication.
“They’re not designed to produce truth. They’re designed to address harm from untruths,” Kirtley said. “If people want ‘truth tribunals,’ we can talk about that, but I don’t think libel cases are the way.”
(Updated with additional reporting. Earlier version corrected attribution in second and third sentences of 10th paragraph to court opinion, rather than article itself.)
To contact the reporter on this story: Kyle Jahner in Washington at kjahner@bloomberglaw.com
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