12 F.4th 890
8th Cir.2021Background
- Devin Nunes, a U.S. Representative and public figure, was the subject of a 2018 Esquire article by Ryan Lizza (published by Hearst) about his family’s dairy farm and immigration issues.
- The article claimed the Nunes family moved the farm to Iowa and presented allegations and sources suggesting the farm used undocumented labor; it framed the move as a "politically explosive secret."
- Nunes sued Lizza and Hearst for libel: alleging eleven specific false statements (express defamation) and a defamation-by-implication claim that the article implied he conspired to hide the farm’s use of undocumented labor.
- The district court dismissed the complaint for failure to state a claim and for lack of plausible actual malice; it also dismissed the related conspiracy claim.
- The Eighth Circuit affirmed dismissal of the express-defamation claims, reversed as to defamation by implication for the November 20, 2019 republication (a tweet linking the article), and remanded for further proceedings on that implication and related conspiracy claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Express defamation based on statements about Nunes' conduct as committee chair | Article falsely asserts Nunes abused his office; these statements are defamatory of Nunes | Statements are non-actionable political commentary or insufficiently defamatory | Affirmed: complaint fails to plead express defamation as to those statements |
| Defamation by implication that Nunes conspired to hide farm's use of undocumented labor | Article implies a conspiracy by juxtaposing the secret, local undocumented-labor allegations, and Nunes' immigration positions | Facts are scattered; no reasonable reader would draw that implication; if implied, it’s protected opinion | Reversed: complaint plausibly alleges a defamatory implication a reasonable reader could draw |
| First Amendment defenses (opinion and intent to imply) | Nunes: implication is factual and provable; complaint alleges defendants intended/endorsed the implication | Defendants: implication is rhetorical opinion; plaintiff must plead subjective intent to imply | Held: implication is sufficiently factual (not protected opinion); assuming an intent requirement, complaint plausibly alleges intent/endorsement |
| Actual malice and republication (tweet linking article after suit filed) | Republication after notice and a link tweet can show actual malice; tweet targeted a new audience after Nunes’ denial | Defendants: mere hyperlink or reference is not republication; plaintiff’s prepublication denial is insufficient to plead actual malice | Reversed as to republication: complaint plausibly alleges republication by tweet and raises factual inference of actual malice for that republication; original publication still lacks adequate actual malice pleading |
Key Cases Cited
- New York Times Co. v. Sullivan, 376 U.S. 254 (U.S. 1964) (public-figure actual malice standard)
- Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657 (U.S. 1989) (reckless disregard and deliberate avoidance of truth)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (opinion vs. provably false factual statements)
- Stevens v. Iowa Newspapers, Inc., 728 N.W.2d 823 (Iowa 2007) (defamation by implication doctrine)
- Manzari v. Associated Newspapers Ltd., 830 F.3d 881 (9th Cir. 2016) (reasonable-reader test for implied defamation)
- Elias v. Rolling Stone LLC, 872 F.3d 97 (2d Cir. 2017) ("connecting the dots" implication analysis)
- Nelson Auto Ctr., Inc. v. Multimedia Holdings Corp., 951 F.3d 952 (8th Cir. 2020) (pleading facts sufficient to infer actual malice)
- Edwards v. National Audubon Soc'y, Inc., 556 F.2d 113 (2d Cir. 1977) (plaintiff's prepublication denial, standing alone, insufficient to prove actual malice at trial)