The U.S. Circuit Court of Appeals for the Eighth Circuit this week revived part of a previously-dismissed defamation lawsuit from Rep. Devin Nunes (R-CA) against now-Politico reporter Ryan Lizza, a decision that Nunes told Breitbart News he expects will lead to a trial by jury against the establishment media figure.
“I’m happy with the decision, which predictably, the mainstream media is vehemently denouncing,” Nunes said in a statement provided exclusively to Breitbart News in response. “All I hoped for was to have a jury of my peers decide this case, and it now appears that I’ll get my day in court. This reporter stalked my family at their homes and then published an utterly false hit piece making wild accusations against me and my family. I don’t think any of that is acceptable, and I hope a jury will agree.”
The decision from the Eighth Circuit to revive the suit, written by Judge Steve Colloton, breathes new life in Nunes’s increasingly successful strategy of suing anyone in establishment media who prints what he says is inaccurate information about him. It comes on the heels of another recent development in a separate lawsuit against the Washington Post and its reporter Ellen Nakashima, where a federal judge in Washington, DC, gave a green light for the suit to proceed to discovery.
Politico, where Lizza is now employed, admitted in a Wednesday evening newsletter that the Eighth Circuit opinion “has wide implications for the actual malice standard, but it also has immediate implications for how reporters talk about Nunes on social media.”
This particular suit against Lizza and Hearst Magazines—the publisher of Esquire—was originally filed in federal court in Iowa’s Northern District in September 2019, about a September 2018 Esquire magazine article from Lizza about Nunes. A district court judge in Iowa dismissed the Nunes case against Lizza and Hearst Magazines in August 2020, but Nunes appealed the dismissal and the Eighth Circuit Court of Appeals on Wednesday overturned it–at least in part—allowing the lawsuit to proceed to discovery and potentially a trial by jury unless it is resolved before it gets to that point.
The 2018 article from Lizza, published in Esquire, made admittedly explosive claims and insinuations against Nunes. “Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret,” was the headline, followed by this subheading: “Rep. Devin Nunes is head of the House Intelligence Committee and one of President Trump’s biggest defenders. For years, he’s spun himself as a straight talker whose no-BS values are rooted in his family’s California dairy farm. So why did his parents and brother cover their tracks after quietly moving the farm to Iowa? Are they hiding something politically explosive? On the ground in Iowa, Esquire searched for the truth—and discovered a lot of paranoia and hypocrisy.”
Throughout the Esquire article, Lizza repeatedly claims that Nunes, his family, and now former Rep. Steve King (R-IA) were keeping a “secret” that some members of his family had moved from California to Iowa to farm.
“The false claim that Plaintiff ‘conspired’ with his own family, Congressman King, and an Iowa dairy publication to ‘hide’ his family’s ‘secret’ move to Iowa is utterly unsupported by any evidence,” the lawsuit from Nunes states. “It is a malicious lie made out of whole cloth that spread like wildfire throughout mainstream media and on social media as a result of publication of the Lizza Hit Piece.”
The Federalist’s Mollie Hemingway published a point-by-point takedown of the hit piece against Nunes in October 2018, an article referenced by Nunes in his lawsuit. In it, she addresses Lizza’s claim that Nunes, King, and Nunes’s family were keeping this a “secret.”:
Lizza admits that Nunes’s parents farmed in California until 2006 and that ‘Devin’s uncle Gerald still owns a dairy back in Tulare, [California],’” Hemingway wrote. “In fact, the family farm referenced in various media outlets is still run by family members. Lizza may be unaware that Nunes’s parents spend time in both Iowa and California and own property in both locations, although why any of that is relevant to Nunes is unclear. The Fresno Bee, which is well known for its anti-Nunes crusades, has reported on both the Nunes farm in Iowa and the Nunes farms in California. Just last August it noted that ‘Nunes Jr. sold his 5,000-acre ‘cropping and custom farming operation’ in Tulare County before moving to Iowa. Nunes’ uncle, Gerald, remains in charge of the Tulare County dairy operation previously ran by Nunes’ grandfather.’ No one is alleging that Nunes claimed to be running his own farm, even if MSNBC mocks him as ‘a former dairy farmer.’ To buttress his claim of secrecy, Lizza digs up an August 2010 press release from Rep. Steve King, R-Iowa, that announced Nunes would be at a town-hall event near the small town where his parents had purchased a farm. Yet ‘[t]here was no mention that the Nunes family actually lived up the road in Sibley, where they operated a dairy. Strange.’ Well, sources close to the King staffer who wrote the release say he was not part of an elaborate global conspiracy of silence but that he simply pulled the biographical information off of Nunes’ district web site. What’s more, the conspiracy theory fails to note that Nunes’s family ties were mentioned at the event.
Hemingway then quoted King—who she interviewed for her piece—noting that at that 2010 event in his district he actually publicly from the podium mentioned that Nunes’s family has a farm in his district.
“When I introduced Devin, I made a point to say that his brother and his family are my constituents. I have been to visit their dairy farm. They have been to political events with me. As everyone in the area knows, there is no secret dairy farm,” King said in his interview with Hemingway.
Hemingway’s article goes much more in depth on several other elements of the Lizza story that are problematic and concerning, and her story seems to serve as a framework of sorts for the eventual 2019 lawsuit by Nunes against Lizza and Esquire’s publisher Hearst Magazines.
Lizza, who was previously a correspondent for The New Yorker magazine before his termination over allegations of sexual misconduct that he denies, was hired in June 2018 by Esquire as the magazine’s chief political correspondent. Lizza has since gone on to become Politico’s “Chief Washington Correspondent,” and a co-author of the Washington, DC, insider publication’s landmark morning newsletter “Politico Playbook.”
In his brief stint at Esquire, Lizza—per Nunes’s lawsuit—“stalked” his elementary school-aged nieces and other family members who lived in northwestern Iowa in the district of then-Rep. King.
“Lizza only lasted a short time at Esquire. During his brief tenure, however, he physically traveled to Sibley, Iowa, where he lurked around Plaintiff’s grammar-school aged nieces and stalked members of Plaintiff’s family, reducing Plaintiff’s sister-in-law to tears,” Nunes’s original September 2019 lawsuit states.
The appellate court’s decision to revive the case in part is based on two facets in particular. First was the question of whether Lizza and Hearst engaged in defamation by implication against Nunes, on which the appellate court wrote that it disagreed with the district court. Secondly, the appellate court decision said it felt that a tweet Lizza sent out in November 2019 with the original 2018 article potentially rose to the standard, by republication of a story that may have harmed Nunes with defamation by implication, of meeting the high burden of actual malice needed for a successful defamation lawsuit from a public figure like Nunes.
In August 2020, U.S. District Judge C.J. Williams for the Northern District of Iowa dismissed Nunes’s suit, arguing that Nunes’s lawsuit failed to meet the standards for defamation by implication under the law. “Plaintiff fails to state a claim for defamation by implication for two reasons,” Williams wrote in dismissing the suit. “First, no reasonable person could draw plaintiff’s asserted implication from the Article. Second, even if a reasonable person could draw the implication, there is no indication that defendants intended or endorsed the implication.”
Upon appeal of that decision, the Circuit Court of Appeals overturned that finding.
Noting that Nunes “contends that his complaint states a plausible claim for defamation by implication,” the three-judge panel’s opinion summarizes Nunes’s argument as that the 2018 Lizza article “implies the existence of a ‘politically explosive secret’ that he ‘conspired with others’ to hide the farm’s use of undocumented labor” and that Nunes “alleges that implication is false because he was not involved in the farm’s operations, and ‘had no knowledge of who the dairy farm hired.’”
“The district court concluded that ‘no reasonable reader’ could draw that implication from the article,” the St. Louis-based court’s opinion states. “We respectfully disagree.”
Later in the opinion, when addressing the second point—the question of republication of the allegedly defamatory article—the appellate court again says Nunes’s lawsuit “plausibly alleges that” Lizza’s “article defames Nunes by implication.”
The appellate court addresses how later, in November 2019—after Nunes filed his initial complaint in September 2019—Lizza again tweeted the article. The appellate court opinion reads:
The complaint here adequately alleges that Lizza intended to reach and actually reached a new audience by publishing a tweet about Nunes and a link to the article. In November 2019, Lizza was on notice of the article’s alleged defamatory implication by virtue of this lawsuit. The complaint alleges that he then consciously presented the material to a new audience by encouraging readers to peruse his ‘strange tale’ about ‘immigration policy,’ and promoting that ‘I’ve got a story for you.’ Under those circumstances, the complaint sufficiently alleges that Lizza republished the article after he knew that the Congressman denied knowledge of undocumented labor on the farm or participation in any conspiracy to hide it.
This development where the appellate court revived this lawsuit where it now heads to discovery and potentially to trial by jury comes as a separate lawsuit from Nunes’s family members against Lizza and Hearst Magazines for the same story is also likely proceeding forward to a trial soon. That suit is through discovery, and has a trial date set for early next year.
The case is Nunes v. Lizza, No. 20-2710 in the U.S. Court of Appeals for the Eighth Circuit.
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