Friday, August 13, 2021

Court Declines to Halt Nunes's Defamation Claim Against Washington Post

Judge Carl Nichols (D.D.C.) this week denied the Washington Post's motion to dismiss a defamation lawsuit by House Permanent Select Committee on Intelligence Ranking Member Devin Nunes. The ruling means that this portion of Nunes's case can move forward.

The case, Nunes v. WP Company, arose out of Washington Post reporting on Nunes's activities related to former President Trump's claims that President Obama ordered a wiretap of Trump Tower during the 2020 presidential campaign. The Post reported that Nunes "was given access at the White House to intelligence files that Nunes believed would buttress his baseless claims of the Obama administration spying on Trump Tower," and that Nunes saw the documents "reportedly late at night, earning the episode the nickname 'the midnight run.'"

But Nunes said around the time that there was no evidence of wiretaps of Trump Tower, even as he also expressed "concern[] that other surveillance activities were used against President Trump and his associates," and thought it was "very possible" that Trump and others might have been caught up in surveillance directed at others.

Nunes complained to the Post and, that same day, sued. The Post then printed revisions, saying that the timing of Nunes's visit to the White House was "unclear," and that Nunes himself never said that Trump Tower was wiretapped (instead, Trump did). But the revisions didn't take back the "baseless claims" language. Nunes amended his complaint to incorporate the revisions.

The Post moved to dismiss the complaint on the ground that its article was neither false nor defamatory, and that Nunes failed to sufficiently allege that the Post published the article with actual malice, among other reasons.

The court denied the motion. The court wrote that even the Post's revision said that Nunes made "baseless" claims, when he didn't: He only claimed that intelligence activities touched on the Trump campaign (of which there was evidence by November 2020, so this wasn't "baseless"), not that Trump Tower was wiretapped (which wasn't true, but Nunes didn't say it). Moreover, the court said that the Post's false claim could also be defamatory:

Taken as a whole, the article says (or at least a reasonable juror could understand the article to say) that Nunes had made baseless claims about spying on Trump Tower and then visited the White House to inspect documents that might support those baseless claims. And a reasonable juror could conclude that an elected official is ridiculous or unfit for office if he searched for evidence to support baseless claims.

The court ruled that Nunes sufficiently alleged actual malice, or reckless disregard of the truth, because the Post itself had previously reported that Nunes denied Trump's claims about a wiretap at Trump Tower.

The court noted, however, that Nunes now has "to establish by clear and convincing evidence that, even in light of the corrections the Post did issue, it published statements with actual malice."

https://lawprofessors.typepad.com/conlaw/2021/08/court-declines-to-halt-nuness-defamation-claim-against-washington-post.html

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