Case Information
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DEVIN NUNES,
Plaintiff,
22-cv-1633 (PKC) -against- OPINION AND ORDER
NBCUNIVERSAL MEDIA, LLC, Defendant.
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CASTEL, U.S.D.J.
Plaintiff Devin Nunes, a former Member of the House of Representatives, alleges that he was defamed by defendant NBCUniversal Media, LLC. According to Nunes, statements made on the March 18, 2021 broadcast of The Rachel Maddow Show on MSNBC portrayed him in a false and defamatory light. The statements purported to describe Nunes’s conduct regarding a package addressed to him from Andriy Derkach, a Ukrainian legislator with ties to Russian officials and intelligence services.
Nunes brings a single state law claim of defamation against defendant
NBCUniversal Media, LLC in regard to three statements, each of which he asserts falsely accused him of serious wrongdoing and injured him in his profession and employment. (2nd Am. Compl’t ¶¶ 2-4.) NBCU moves to dismiss the Second Amended Complaint (the “Complaint”) under Rule 12(b)(6), Fed. R. Civ. P., urging that the statements are verifiably true, absolutely privileged under New York law as a fair and true report, protected opinion, and not were not made with actual malice.
As will be explained, NBCU’s motion will be granted in part and denied in part. Nunes has plausibly alleged a claim of defamation in regard to a factual assertion contained in one of the three statements. As for the other two statements, one is substantially true and does not plausibly have a defamatory meaning, and the second is privileged as non-actionable opinion.
BACKGROUND
The Court summarizes the Second Amended Complaint’s factual allegations, and,
for the purposes of the motion, accepts them as true, drawing all reasonable factual interferences
in favor of Nunes as the non-movant. In re Hain Celestial Grp., Inc. Sec. Litig.,
On December 11, 2019, a package was delivered to the House Permanent Select Committee on Intelligence (“Intelligence Committee” or the “Committee”), of which Nunes was Ranking Member. (2nd Am. Compl’t ¶ 13.) It was addressed to Nunes from Andriy Derkach and was handled solely by Nunes’ staff and delivered, unopened, to the offices of the FBI. (Id.) That same day, Nunes sent a letter to Attorney General William P. Barr advising him of the receipt of the package. (Id.)
On July 29, 2020, the Intelligence Committee held an open business meeting. (Id. at n.5.) During this meeting, Representative Sean Maloney asked Nunes two questions. (Id.) First, Maloney asked if Nunes had received materials from Derkach. (Id.) Second, Maloney asked if, in the event that Nunes had received materials, whether he was prepared to share them with the Committee. (Id.) When asked if he wished to respond to the questions, Nunes declined. (Id.)
On March 10, 2021, the National Intelligence Council declassified a report titled “Foreign Threats to the 2020 US Federal Elections” (the “DNI Report”). (Id. ¶ 3.) The report stated that Derkach and his associates sought to use prominent Americans to “launder their narratives to US officials and audiences.” (Id.) The report also stated that Derkach provided materials to individuals linked to the Trump administration and attempted to contact several senior U.S. officials. (Id.)
In the March 18, 2021 broadcast of The Rachel Maddow Show , host Rachel Maddow discussed the declassified DNI Report as part of a longer segment about Derkach, Russian disinformation and election interference. [1] (Id.) Maddow referred to the report and discussed the package addressed to Nunes, as well as the interaction between Nunes and Maloney at the Intelligence Committee meeting. (Id.) Maddow said that Nunes had accepted a package from Derkach and refused to answer questions about the package. (Id. ¶ 2.) Maddow also said that Nunes refused to hand the package to the FBI. (Id.)
The Complaint identifies three statements from the segment that purportedly show Nunes in a false and defamatory light. [2] (Id.) The Court will discuss each of these statements in detail, but Nunes alleges that the statements made by Maddow falsely accused him of criminal conduct, breaching the House Representatives Code of Conduct and violating House Intelligence Committee protocol. (Id. ¶ 4.) Nunes asserts that, in truth, the designated staff member in his office turned over the unopened package from Derkach to the FBI on the same day, as required by protocol. (Id. ¶ 13.) Further, he asserts that he and members of the Committee’s Republican staff “briefed the FBI about their concerns about the package.” (Id.)
Nunes alleges that the statements made in the broadcast caused him to be exposed to public ridicule, scorn, contempt, and censure and injured him in his employment as a member of Congress and the ranking member of the Committee. (Id. ¶ 4.) He also asserts that the statements were made with actual malice because the speaker knew that the statements were false or had reckless disregard for whether they were false. (Id. ¶ 25.) RULE 12(b)(6) STANDARD
To survive a motion to dismiss under Rule 12(b)6), “a complaint must contain
sufficient factual matter, accepted as true, ‘to state a claim to relief thаt is plausible on its face.’”
Ashcroft v. Iqbal,
“A motion brought under Rule 12(b)(6) challenges only the ‘legal feasibility’ of a
complaint.” Goel v. Bunge, Ltd.,
DISCUSSION
I. The Law of Defamation in New York.
A. The Allegedly Defamatory Statements.
The Complaint alleges that three statements from a segment of the March 18, 2021 episode of The Rachel Maddow Show are false and defamatory. (2d Am. Compl’t ¶ 2.) The statements are as follows:
Statement One: “Andriy Derkach is sanctioned by the U.S. government as a Russian agent. He is singled out by name by the Director of National Intelligence as someone under Vladimir Putin’s direct purview who helped run this organization targeting our election last year. Congressman Nunes accepted a package from him. What was in it?”
Statement Two : “Congressman Nunes has refused to answer questions about what he received from Andriy Derkach. He has refused to show the contents of the package to other members of the intelligence community. He has refused to hand it over to the FBI which is what you should do if you get something from somebody who is sanctioned by the U.S. as a Russian agent.”
Statement Three: “Still, the Republicans have kept Mr. Nunes on as the top Republican on the intelligence committee. How does that stand? How does that stay a thing?”
NBCU urges that the complaint fails to state a claim for defamation and that Nunes’ claim can therefore be dismissed as a matter of law. The parties do not dispute that New York law governs Nunes’s claims. [3]
B. Whether a Statement is Capable of Defamatory Meaning Is an Issue of Law for the Court.
“Allegations of defamation present, in the first instance, an issue of law for
judicial determination.” Dillon v. City of New York,
“A statement is defamatory on its face when it suggests improper performance of
one’s professional duties or unprofessional conduct.” Frechtman v. Gutterman,
A public official may not recover damages for defamation related to his official
conduct unless he proves “that the statement was made with ‘actual malice’ – that is, with
knowledge that it was false or with reckless disregard of whether it was false or not.” New York
Times Co. v. Sullivan,
C. The “Substantial Truth” Defense to Defamation
NBCU urges that Nunes’ claim should be dismissed because the statements are
substantially true. “Because the falsity of the statement is an element of the defamation claim,
the stаtement’s truth or substantial truth is an absolute defense.” Stepanov v. Dow Jones & Co.,
Inc.,
D. New York’s “Fair Report Privilege” Defense Against a Claim of Defamation.
NBCU also urges that the claim should dismissed because the statements are a
“fair and true” report of an official proceeding of the Intelligence Committee and are therefore
privileged. N.Y. Civ. Rights Law §74. The statute governing New York’s fair report privilege
states: “A civil action cannot be maintained against any person, firm, or corporation for the
publication of a fair and true report of any judicial proceeding, legislative proceeding, or other
official proceeding, or for any heading of the report which is a fair and true headnote of the
statement published.” Id. “Whether or not the fair reporting privilege applies requires a
determination of whether or not the report is ‘substantially accurate.’” Bilinski v. Keith Haring
Foundation, Inc.,
“A report is ‘substantially accurate’ if, despite minor inaccuracies, it does not
produce a different effect on the reader than would a report containing the precise truth.”
Karedes v. Ackerley Group, Inc.,
E. Statements of Pure Opinion Are Privileged Against a Claim of Defamation.
NBCU further urges that the claim should be dismissed because Nunes challenges
statements of pure opinion and the statements, therefore, are рrivileged against claims of
defamation. (Def. Mem. at 20-21.) “Expressions of opinion, as opposed to assertions of fact, are
deemed privileged and, no matter how offensive, cannot be the subject of an action for
defamation.” Mann v. Abel,
However, when a “statement of opinion implies that it is based upon facts which
justify the opinion but are unknown to those reading or hearing it, it is a ‘mixed opinion’ and is
actionable.” Steinhilber,
“Distinguishing between fact and opinion is a question of law for the courts, to be
decided based on ‘what the average person hearing or reading the communication would take it
to mean.’” Id. at 269 (quoting Steinhilber,
(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal . . .
readers or listeners that what is being read or heard is likely to be opinion, not fact.
Frechtman,
In weighing these factors, courts are required to consider “the content of the
whole communication, its tone and apparent purpose . . . .” Id. at 106. Courts must look to the
overall context, rather than focusing on the statements in isolation. Id. “[E]ven apparent
statements of fact may assume the character of statements of opinion, and thus be privileged,
when made in public debate . . . .” Steinhilber,
II. Whether the Complaint Plausibly Alleges a Defamatory Meaning to Statements.
A. The Statement that Nunes “Accepted” a Package Is Substantially True. The Complaint alleges that Statement One falsely accuses Nunes of accepting a package from Andriy Derkach. The complained-of statement was as follows: “Andriy Derkach is sanctioned by the U.S. government as a Russian agent. He is singled out by name by the Director of National Intelligence as someone under Vladimir Putin’s direct purview who helped run this organization targeting our election last year. Congressman Nunes accepted a package from him. What was in it?” NBCU urges that the statement is both substantially true and protected by the fair report privilege. (Def. Memo at 15.)
According to the Complaint, Nunes argues that he never personally accepted a package from Derkach, but instead that the package only came to the House Intelligence Committee addressed to Nunes. (2d Am. Compl’t ¶ 13.) The Complaint alleges that on the day the package arrived, a designated staff member in Nunes’s office delivered the package to the FBI. (Id.) It also states that the same day, Nunes personally wrote a letter to the Attorney General, advising him of the package. (Id.)
As noted, whether a statement is protected by the fair report privilege is
dependent on whether the statement is a substantially accurate report of the proceeding upon
which it was based. Bilinski,
Nunes asserts that he did not “accept” a package from Derkach. (2d Am. Compl’t
¶ 13.) In the open session of the House Intelligence Committee, Representative Maloney
discussed public reports that “minority members” had received materials from Derkach and
asked Nunes if he had received materials. (Chase Decl. Ex. D.) Nunes did not answer the
question. (Chase Dec. Ex. D at 19; 2d Am. Compl’t n.5.) The statement that Nunes “accepted”
a package from Derkach could plausibly produce a different effect in the mind of the reader than
the actual proceeding itself, and therefore does not fall under the fair report privilege. See
Karedes,
However, a statement is absolutely privileged against a defamation claim when
the statement is substantially true. See Stepanov,
Because the Complaint does not plausibly allege a defamatory meaning as to Nunes “accepting” a package from Derkach, the Complaint will be dismissed to the extent that it asserts defamation based on Statement One.
B. The Complaint Plausibly Alleges a Defamatory Meaning to Maddow’s Statement that Nunes “Refusеd” to Deliver the Package to the FBI.
MSNBCU urges that Statement Two is also protected by New York’s fair and true report privilege because it is a fair and true report of the House Intelligence Committee Hearing transcript. (Def. Memo 15-19.) Defendant argues that even if certain statements are not literally true, they are only minor factual inaccuracies that are nevertheless protected by the fair report privilege. (Id. at 18.)
Statement Two includes three assertions, and in moving to dismiss, NBCU urges that each is individually non-actionable. Statement Two states as follows: “Congressman Nunes has refused to answer questions about what he received from Andriy Derkach. He has refused to show the contents of the package to other members of the intelligence community. He has refused to hand it over to the FBI which is what you should do if you get something from somebody who is sanctioned by the U.S. as a Russian agent.” (2d Am. Compl’t ¶ 2.)
The first asserted fact, that Nunes “has refused to answer questions about what he received from Andriy Derkach,” is not actionable as defamation because it is substantially true. As described in the Complaint itself, during the House Intelligence Committee meeting of July 29, 2020, Nunes “stated that he did not wish to respond” to Maloney’s questions both because a response “risked disclosing classified information” and because the questions were a “completely out-of-order, coordinated stunt.” (2d Am. Compl’t ¶ 13 n.5.) A comparison between the complained-of language and the truth as described in Nunes’s complaint would not have a different effect in the mind of a reasonable viewеr. To the extent that Nunes asserts defamation based on the statement that he “has refused to answer questions about what he received from Andriy Derkach,” the claim will be dismissed.
The second and third sentences assert, respectively, that Nunes “refused to show the contents of the package to other members of the intelligence community” and “refused” to “hand over” the package to the FBI. NBCU urges that the second sentence’s description of Nunes’s refusal to the “intelligence community” is a fair report of the Committee proceeding because Nunes did not disclose the contents of the Derkach package when questioned by Maloney. (Def. Mem. at 15-16.) NBCU argues that in the mind of a reasonable viewer, the term “intelligence community” would include the Intelligence Cоmmittee, and the difference between “intelligence community” and “Intelligence Committee” would not change the statement’s effect on a reasonable viewer. (Id. at 16.)
The Complaint asserts that “intelligence community” is not a general label, but a specific term used within the federal government to denote branches of federal law enforcement, divisions of the armed forces, and certain departments of the executive branch, but that excludes the House Intelligence Committee, which oversees the “intelligence community” in a supervisory capacity. (2d Am. Compl’t ¶ 3 n.1; see also Pl. Mem. at 8-9 & n. 6.) The Court takes judicial notice that the website intelligence.gov identifies “the 18 organizations that make up the [intelligence community] and what they do,” and distinguishes them from “ovеrsight bodies,” such as the National Security Council and the Intelligence Committee. [4] The intelligence community includes the FBI, which intelligence.gov describes as “the principal investigative arm of the U.S. Department of Justice and a full member of the U.S. Intelligence Community.” [5] The FBI holds itself out as “the lead agency for exposing, preventing, and investigating intelligence activities in the U.S.” [6]
NBCU characterizes Nunes’s distinction between the “intelligence community” and the Intelligence Committee as “hyper-technical” and an attempt to “split[ ] hairs.” (Id. at 16.) NBCU also asserts that a “minor” factual inaccuracy should not remove the segment from the fair report privilege because the report accurately captured the “gist” of the Committee meeting, which was that Nunes withheld the packagе from “other intelligence community members.” (Def. Mem. at 18-19.) It therefore argues that because the statement accurately reports on the official committee proceeding, it has absolute privilege under section 74. (Id. at 15-16.)
The Court concludes that a reasonable viewer encountering the statement would
not understand the technical distinction between the government entities that formally comprise
the intelligence committee and the Intelligence Committee that is tasked with supervising those
entities. The speaker also asserted that Nunes “refused to show the contents of the package to
other members of the intelligence community.” (2d Am Compl’t ¶ 2; emphasis added.) A
reasonable viewer would understand the speaker to be asserting that Nunes himself is pеrsonally
a “member” of the intelligence community and that the “other members” included his
Congressional colleagues. This description is consistent with the events of the Intelligence
Committee proceeding. And while the Intelligence Committee is not technically part of the
intelligence community, it performs a formal oversight role, and minor inaccuracies are “not
serious enough to remove a party’s reportage from the protection of Civil Rights Law §74.”
Misek-Falkoff,
The third sentence of Statement Two does not fall within the fair report privilege
and the Complaint has plausibly alleged that it is not substantially true. That sentence asserted:
“He has refused to hand it [e.g., the Derkach package] over to the FBI which is what you should
do if you get something from somebody who is sanctioned by the U.S. as a Russian agent.” (2d
Am. Compl’t ¶ 2.) The application of the fair report privilege is inappropriate at the motion to
dismiss stage “if a reasonable jury could conclude the report suggested more serious conduct
than actually suggested at the proceeding.” Bilinski,
A reasonable viewer could plausibly understand the speaker to assert that Nunes
“refused” turn over the Derkach package to the FBI. A reasonable viewer could conclude that
such conduct is significantly more serious than what was suggested in the Committee
proceeding. Bilinski,
NBCU also relies on the then-newly declassified DNI Report stating that Derkach and his associates sought to use prominent Americans to “launder their narratives to US officials and audiences” and that Derkach both provided materials to individuals linked to the Trump administrаtion and attempted to contact senior U.S. officials. Had Statement Two merely reported on the DNI Report and noted that Nunes did not answer questions about receipt of package from Derkach, it is doubtful that it would have been actionable. But the Statement also focuses on Nunes’ refusal to turn the material over to the FBI. The Statement in this respect was false, not just technically but also in substance and meaning, and capable of injuring Nunes in his profession.
NBCU’s motion to dismiss will therefore be granted as to the first and second sentences of Statement Two but denied as to the third sentence.
C. The Complaint Does Not Plausibly Allege a Defamatory Meaning to Rhetorical Questions.
The Complaint alleges that the Third Statement was defamatory and accused the рlaintiff of wrongdoing. Statement Three is as follows: “Still, the Republicans have kept Mr. Nunes on as the top Republican on the intelligence committee. How does that stand? How does that stay a thing?”
The Complaint alleges that because Nunes did not violate any rule with regard to the Derkach package, there was no basis to question his position as Ranking Member of the House Intelligence Committee and, therefore, the statements are defamatory. (2d Am. Compl’t ¶ 13.) Nunes argues that the rhetorical questions were defamatory as they were accusations of wrongdoing intended to raise questions about his activities. (Reply at 22-23.)
NBCU asserts that the questions and statements are non-actionable opinion. (Def.
Mem. at 20-21.) As noted, statements of pure opinion are non-actionable, and the distinction
between statements of fact and opinion is an issue of law for the Court to be decided based on
“what the average person hearing or reading the communication would take it to mean.” Davis,
Statement Three cannot be classified as actionable statements of fact or actionable mixed opinion. When weighing the factors, the specific language does not have a precise meaning, is not capable of being proved or disproved, and when considering the context, the average viewer would not reasonably believe the statements to be based on undisclosed facts. See id. at 105. Considering the immediate context of the questions, of political commentary on a political program, such statements and rhetorical questions would not be viewed by a reasonable person as expressing or implying facts about the plaintiff. The Court therefore concludes that Statement Three is privileged as pure opinion and not actionable.
III. The Complaint Plausibly Alleges Actual Malice as to the Statement
that Nunes Refused to Deliver the Derkach Package to the FBI.
NBCU separately urges that the statement that Nunes refused to hand the Derkach package over to the FBI is non-actionable because the Complaint fails to allege actual malice. NBCU’s argument about actual malice relies on factual inferences thаt go beyond the pleadings and the segment. The motion to dismiss for failure to allege actual malice will therefore be denied.
A public figure alleging defamation must “prove that an allegedly libelous
statement was made with actual malice, that is, made with knowledge that it was false or with
reckless disregard of whether it was false or not.” Palin v. New York Times Co.,
“The hurdles to plausibly pleading actual malice, though significant given the
First Amendment interests at stake, are by no means insurmountable.” Biro,
The Complaint asserts that NBCU and Maddow had knowledge that the Derkach package had in truth been given to the FBI, based on a July 29, 2020 article published on the Breitbart website. (2d Am. Compl’t ¶ 16 & Chase Dec. Ex. F.) The Breitbart article quotes Rick Crawford, a Republican member of Congress, as stating in part:
Here’s the thing: it’s standard practice that if you get a package from unknown source in a foreign country, it’s probably a good idea to call the FBI and let them handle it and not handle those packages and don’t open them and go, ‘Hey I wonder what this is? I guess it’s Christmas came early this year.’ No, you follow the protocol, which is you turn that over to the FBI. That’s what happened.
(Id.; emphasis added.)
After quoting this passage, the Complaint states: “MSNBC and Maddow had no source that had told them prior to publication of the Statements that Plaintiff had ‘refused’ to turn over the Derkach package to the FBI.” (2d Am. Compl’t ¶ 16.) It states that Maddow “provided no source for the defamatory Statements about Plaintiff because, in truth, Maddow fabricated the Statements, including the story that Plaintiff ‘refused’ to turn over the package to the FBI.” (Id. ¶ 25(a).) It further asserts that other reports reviewed by Maddow and her producers “confirmed the package had been turned over to the FBI” but that they “purposefully evaded the truth” and “chose not to interview important witnesses . . . .” (Id. ¶¶ 25(b), (c).) [7] NBCU рoints to a July 23, 2020 article published in Politico with the headline, “Democrats: Packets sent to Trump allies are part of foreign plot to damage Biden.” [8] (Chase Dec. Ex. E.) The article described “concerns” of “[t]op congressional Democrats” that packets were “mailed to prominent allies of President Donald Trump,” including Nunes and then-White House chief of staff Mick Mulvaney. (Id.) The article included the following passage:
The packets, described to POLITICO by two people who have seen the classified portion of the Democrats’ letter, were sent late last year to Rep. Devin Nunes (R-Calif.), Sens. Lindsey Graham (R- S.C.) and Chuck Grassley (R-Iowa), and then-White House chief of staff Mick Mulvaney.
The packets were sent amid a Democratic push to impeach Trump over his effort to pressure Ukraine’s president to investigate Biden and his son Hunter the sources said. Graham and Grassley denied having received the material, and Mulvaney and Nunes declined repeated requests for comment. One person familiar with the matter said the information was not turned over to the FBI. The FBI declined to comment.
(Id.; emphasis added.)
This Politico article is not cited or referenced in the Complaint, nor is it cited or
referenced in the segment. Because the article goes beyond the pleadings and the materials
integral thereto, it is not properly considered on a motion to dismiss. Goel,
The broadcast segment included a screenshot of a July 31, 2020 headline from a CNN website, which states, “Dеvine Nunes declines to say whether he received foreign information meant to damage Biden,” and screenshots of an excerpt from that article, which states: “The information in question pertained to packets reportedly sent to GOP members of Congress, including Nunes, by Ukranian [sic] lawmaker Andrii Derkach . . . Nunes . . . declined to say at a close-door meeting this week whether he had received foreign information[.]” (ellipsis in original) [9] The full CNN article, which has been submitted by NBCU, does not address the issue of whether Nunes gave the Derkach package to the FBI. (Chase Dec. Ex. H.) [10]
Drawing every reasonable inference in favor of the plaintiff as the non-movant,
the facts alleged in the Complaint plausibly allege actual malice as to the assertion that Nunes
“has refused to hand it [e.g., the Derkach package] over to the FBI . . . .” The speaker did not
attribute the statement to any source, including the Politico article submitted by NBCU on this
motion. The CNN article shown and cited onscreen did not speak to the issue of whether Nunes
refused to give the Derkach package to the FBI. At the Rule 12(b)(6) stage, the Court cannot
draw the factual inference that the speaker or others responsible for the segment had knowledge
of the Politico article and based the statement on its contents. While it is plausible that the
statement was made with knowledge of that article, the Complaint also describes why the
statement plausibly could have been made with knowledge of falsity or reckless disregard as to
the same. A court does not weigh competing, plausible thеories of actual malice on a motion to
dismiss. See Palin,
NBCU’s motion to dismiss the defamation claim as to the final sentence of Statement Two will therefore be denied.
CONCLUSION
NBCU’ motion to dismiss is GRANTED as to Statements One and Three and the first two sentences of Statement Two, and DENIED as to the third sentence of Statement Two. The Clerk shall terminate the motion and the related letter-motion. (Doc. 44, 47.)
SO ORDERED.
Dated: New York, New York
November 28, 2022
Notes
[1] NBCU submitted video of the segment in connection with its motion and the segment is publicly available at https://www.youtube.com/watch?v=kQZqqkNiAsA. The Complaint cites to this url, and the video is integral to the Complaint. It is therefore properly considered without converting the motion into a motiоn for summary judgment. See, e.g., Tannerite Sports, LLC v. NBCUniversal News Grp., a division of NBCUniversal Media, LLC, 864 F.3d 236, 247 (2d Cir. 2017).
[2] The Complaint alleges that three statements are defamatory. There is a fourth statement, a tweet, that is also alleged to be defamatory, but that tweet is cited by Nunes as an example of NBCU repeating and republishing one of the three allegedly defamatory statements. The Court thus confines its analysis to the three statements.
[3] The parties’ agreement that a particular jurisdiction’s law governs a claim is generally a sufficient basis for that
jurisdiction’s law to apply. See, e.g., Photopaint Techs., LLC v. Smartlens Corp.,
[4] https://www.intelligence.gov/how-the-ic-works
[5] https://www.intelligence.gov/how-the-ic-works/our-organizations/422-fbi
[6] https://www.fbi.gov/investigate/counterintelligence
[7] The Complaint proposes other theories of actual malice, including the speaker’s “pre-determinеd agenda,” “hatred” of Nunes, and the assertion that it is “inherently improbable” that a person of Nunes’s stature would refuse to deliver the Derkach package to the FBI. (Id. ¶¶ 25(d)-(g).)
[8] Available at https://www.politico.com/news/2020/07/23/democrats-letters-to-trump-allies-are-foreign-plot-to- damage-biden-380217
[9] See https://www.youtube.com/watch?v=kQZqqkNiAsA, at 3:50
[10] In contrast to the Politico article, which is not referenced in the Complaint or in the broadcast, the headline of the CNN article and the excerpt of its text were displayed onscreen during the broadcast. Because the CNN article does not address whether Nunes delivered the package to the FBI, the contents of the article do not affect the Court’s analysis of whether the Complaint plausibly alleges actual malice. Accordingly, the Court need not ultimately determine whether the article’s full text is properly considered on a Rule 12(b)(6) motion.