Thanks to a legally incorrect and practically disastrous court decision in the latest installment of Rep. Devin Nunes, R-Calif., versus the media, it could soon be easier for public figures to file speech-chilling defamation suits.
The trial judge tossed Nunes’ conspiracy theory-laden suit because it was the legal equivalent of a lead balloon.
In 2019, Nunes sued journalist Ryan Lizza and Hearst Magazines for defamation in response to a 2018 article Lizza wrote for Esquire magazine called “Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret.” The article discussed the decision made by Nunes’ parents and his brother to move their family farm to Iowa, and it suggested that they employ undocumented workers.
Laws governing defamation vary by state, but they generally require proof that a defendant made a false statement of fact about the plaintiff and that the statement caused the plaintiff harm. The laws generally require that when a defamation claim involves a public figure such as Nunes, there must be proof that the statement was made with actual malice, meaning a defendant knew the statement was false or recklessly disregarded its falsity.
The trial judge, nominated by former President Donald Trump, tossed Nunes’ conspiracy theory-laden suit because it was the legal equivalent of a lead balloon. The judge dismissed the case with prejudice, meaning Nunes is prevented from re-filing his claims. We can take that to mean the judge looked at Nunes’ claim and concluded there was no “there there.” If a judge thinks a plaintiff might be able to come forward with additional facts or theories to prove a case, then that complaint will not be dismissed with prejudice. If you’re wondering what it looks like when a judge slaughters someone’s case, take a gander at this 2020 decision.
Nunes, unhappy with the trial court’s decision, appealed to the 8th Circuit Court of Appeals where, unfortunately, a three-judge panel recently brought the case back from the dead. The judges, all appointed by Republican presidents, concluded that when Lizza tweeted a link to the 2018 article months after Nunes sued him, that tweet could be viewed as “republication” of the article and could give rise to a claim of defamation.
How can tweeting an article that is not defamatory give rise to a claim for defamation? Why was this loser of a case resurrected? The court found that because Lizza had been sued for defamation and knew Nunes denied knowing of any undocumented workers on his family’s farm, Lizza could have acted with “actual malice.”
If all the legal problems in this ruling were in a suitcase, we’d be unpacking for days. First, it is not clear why the judges assumed that being sued would make Lizza think his reporting was or might have been false. Being sued by Nunes would only make Lizza aware that he was being sued by Nunes (who is no stranger to filing unsuccessful defamation cases), no more, no less. Second, retweets have not, and should not, be considered republication for purposes of defamation law. One can imagine the proverbial floodgates of litigation would be thrown open if merely linking to an article after it is subject to a defamation suit could give rise to a defamation claim. Third, when we evaluate a defamation claim, in part we judge the state of mind of the person who made the statement at the time they made the statement, not after they have been sued or circumstances have changed. If all the legal problems in this ruling were in a suitcase, we’d be unpacking for days. If the 8th Circuit’s ruling is allowed to stand, it spells bad news for reporters who use social media and, perhaps more broadly, for social media users in general. It is not illogical to conclude that the court’s ruling could extend to allowing defamation suits against social media users who retweet articles that they know are the subject of defamation suits. Nor is it illogical to imagine thin-skinned politicians taking that as an opportunity to chill the speech of their critics. Lizza and Hearst have asked that the entire 8th Circuit reconsider the three-judge panel’s ruling. Almost three dozen news organizations filed an amicus brief, supporting that request. If the 8th Circuit does not correct this ruling, reporters, and perhaps many other social media users, could face the threat of frivolous lawsuits. Lizza and Hearst have the resources to defend themselves. That is not true of every reporter or everybody who tweets. If the 8th Circuit does not reverse course, then we, the public, are the losers. The 8th Circuit’s decision to resurrect Nunes’ case could have a chilling effect on discourse, particularly discourse surrounding lawsuit-happy politicians who have a motive to chill uncomplimentary speech. Let’s remember, the role of the press is to help inform us and hold our elected officials accountable. The last thing we need is courts giving cover to politicians attempting to silence reporters or critics with costly defamation suits.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
