Wednesday, September 23, 2020
Sept. 23, 2020

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Rep. Devin Nunes can’t sue Esquire magazine over Iowa dairy story, judge rules


WASHINGTON — Rep. Devin Nunes cannot sue Esquire magazine over a 2018 story that described his family’s farm in Iowa, a federal judge ruled Wednesday, marking the congressman’s second loss in the cluster of lawsuits he filed against news organizations and critics.

The ruling by Judge C.J. Williams of the Northern District of Iowa federal court centered on a story titled “Devin Nunes’ Family Farm Is Hiding a Politically Explosive Secret” by Ryan Lizza, who now is a political correspondent for Politico.

The so-called secret in the story was that the family had moved its dairy operation to Iowa in a community that relied on labor from undocumented immigrants. Nunes does not have a financial stake in the dairy, which is owned by his parents and brother.

Lizza and Hearst, the company that owns Esquire, had argued that Nunes failed to state a claim over which he could actually sue for defamation.

Williams agreed, saying the parts of the article that Nunes had specified were defamatory did not harm the congressman, were opinions or did not actually concern Nunes.

Even if the statements had been defamatory, Williams wrote, Nunes would have had to prove they had been made with “actual malice,” since he was a public figure suing a media company. He did not do so, Williams ruled.

“(Nunes’) complaint relies on ‘naked assertion(s)’ and ‘labels and conclusions’ which are devoid of ‘further factual enhancement,’ to establish actual malice,” Williams wrote. Nunes “cannot rely on general assertions and must plead facts to support a finding of actual malice. Although it is difficult for politicians like plaintiff to plead actual malice against the media … that is precisely the result the First Amendment requires.”

Nunes in his complaint against Esquire sought $75 million in damages, claiming the magazine “knowingly and recklessly injured (Nunes’) reputation with a scandalous hit piece that intentionally disparaged (Nunes) and his family, accused (Nunes) of dishonesty, deceit, conspiracy and unethical practices and impugned his integrity and skills as a United States Congressman.”

Williams rebuked Nunes and his lawyer, Steven Biss, regarding some of the language published in the congressman’s complaint. Nunes and Biss compared Lizza to a pedophile, bringing up a sexual misconduct allegation made against Lizza at another workplace.

Investigations by Lizza’s current employer, Politico, said they did their “due diligence” and “were comfortable bringing Ryan on board.”

Williams called the language “immaterial, impertinent, and scandalous. (Nunes’) personal attacks on Lizza have no bearing on this case. This is apparent because (Nunes) never refers to the challenged allegations in resisting defendants’ motion to dismiss. The allegations likewise are prejudicial to Lizza and have criminal overtones.”

Nunes began suing media organizations and critics a year ago, alleging in the cases that various organizations conspired to damage his reputation. In Virginia courts, he has sued CNN, The Washington Post and McClatchy the parent company of the largest newspaper in his district, The Fresno Bee.

He also sued Twitter in Virginia, alleging the company allowed anonymous critics to defame him under the fictional personas of his mother and his cow. The judge ruled in June that Nunes cannot sue Twitter for negligence in the case.

The news organizations are fighting the lawsuits and have moved to dismiss them. McClatchy has called Nunes’ lawsuit against the company a “baseless attack on local journalism.”

The Esquire case is the second of Nunes’ lawsuits dismissed by a judge. Nunes’ lawsuit against Fusion GPS, the investigative research firm that compiled the so-called “Steele dossier” of allegations concerning President Donald Trump and Russia, was dismissed by a judge earlier this year.

Nunes refiled that lawsuit, which is still pending in court, though Fusion GPS has moved to dismiss the new complaint as well.