643 F.Supp.3d 403
S.D.N.Y.2022Background
- Plaintiff Devin Nunes (former U.S. Representative, Ranking Member of House Intelligence Committee) sued NBCUniversal for defamation based on a March 18, 2021 Rachel Maddow Show segment about a package from Ukrainian lawmaker Andriy Derkach.
- The package was delivered December 11, 2019 addressed to Nunes, handled by his staff, and (per the complaint) turned over unopened to the FBI the same day; Nunes also sent a letter to AG Barr notifying him.
- At a July 29, 2020 open Intelligence Committee meeting Rep. Maloney asked whether Nunes had received materials from Derkach; Nunes declined to answer.
- Three contested statements: (1) that Nunes “accepted a package” from Derkach; (2) that Nunes “refused to answer questions,” “refused to show the contents to other members of the intelligence community,” and “refused to hand it over to the FBI”; and (3) rhetorical questions about keeping Nunes as top Republican on the Committee.
- NBCU moved to dismiss under Rule 12(b)(6), arguing substantial truth, New York’s fair-report and opinion privileges, and lack of actual malice; the court granted dismissal as to Statement One and Statement Three and the first two sentences of Statement Two, but denied dismissal as to the third sentence of Statement Two (the alleged refusal to hand the package to the FBI) and found actual malice plausibly alleged as to that sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Statement One (Nunes “accepted” the package) is defamatory/substantially true | Nunes: he never personally accepted it; staff handled and delivered it to FBI | NBCU: wording is substantially true and/or a fair report of proceedings | Held: Substantially true on complaint facts; claim dismissed as to Statement One |
| Whether first part of Statement Two (Nunes “refused to answer questions”) is actionable | Nunes: phrase suggests wrongdoing | NBCU: accurate reflection of committee exchange; fair report/substantially true | Held: Substantially true (Nunes declined to answer); claim dismissed as to this sentence |
| Whether second part of Statement Two (Nunes “refused to show contents to other members of the intelligence community”) is actionable | Nunes: misuse of term "intelligence community" and misleading | NBCU: minor inaccuracy; gist matches committee proceedings; fair report privilege | Held: Court views term as not materially different for reasonable viewers; dismissed as to this sentence under privilege |
| Whether third part of Statement Two (Nunes “refused to hand it over to the FBI”) is actionable and whether actual malice is plausibly alleged | Nunes: he and staff did deliver package to FBI; defendants fabricated/failed to investigate; Breitbart article (and other facts) support actual malice inference | NBCU: segment was fair report or based on available reporting; no basis to infer actual malice | Held: Statement not within fair-report privilege and could be understood to allege more serious misconduct; dismissal denied as to this sentence; actual malice plausibly pleaded as to this assertion |
| Whether Statement Three (rhetorical questions about Nunes’s committee role) is defamatory | Nunes: rhetorical questions implied wrongdoing and damaged reputation | NBCU: political commentary/rhetorical opinion, non-actionable | Held: Treated as rhetorical/pure opinion in context; non-actionable; claim dismissed as to Statement Three |
Key Cases Cited
- New York Times Co. v. Sullivan, 376 U.S. 254 (establishes actual malice standard for public officials)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard under Rule 12(b)(6))
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for complaints)
- Biro v. Condé Nast, 807 F.3d 541 (standards for pleading actual malice for public-figure plaintiffs)
- Palin v. New York Times Co., 940 F.3d 804 (actual malice evidence and inference discussion)
- Stepanov v. Dow Jones & Co., 120 A.D.3d 28 (substantial truth as absolute defense in NY defamation law)
- Karedes v. Ackerley Group, 423 F.3d 107 (scope of New York fair report privilege)
- Davis v. Boeheim, 24 N.Y.3d 262 (distinguishing opinion, mixed opinion, and provable fact)