Devin Nunes Loses Defamation Appeal Against Ryan Lizza and Esquire
From Nunes v. Lizza, decided yesterday by Eighth Circuit Chief Judge Steven Colloton, joined by Judge James Loken and Bobby Shepherd:
Devin Nunes, a former Member of Congress from California, sued journalist Ryan Lizza and Hearst Magazine Media, Inc., for defamation…. On September 30, 2018, Esquire (then owned by Hearst) published an online article, written by Lizza, entitled “Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret.” Viewed in the light most favorable to the plaintiffs, the article implicitly accused Nunes and his family of conspiring to hide the fact that NuStar Farms employed undocumented labor. The article was republished in the November 2018 print edition of Esquire magazine, this time entitled “Milking the System.”
The article included statements about Nunes and his family hiding that the family farm moved from California to Iowa over a decade earlier. The article suggested that the family concealed the move in part because “Midwestern dairies tend to run on undocumented labor.”
The article quoted two sources asserting firsthand knowledge that NuStar farms hired undocumented labor. One source personally sent undocumented workers to the farm. The other source, an undocumented immigrant, claimed to have worked at NuStar. Viewed in the light most favorable to the plaintiffs, the article left the reader with the impression that Nunes and his family were conspiring to hide a “politically explosive secret” that the farm had moved to Iowa and employed undocumented labor….
Nunes sued Lizza and Hearst … alleg[ing] express defamation based on eleven assertedly false statements in the article. The lawsuit also claimed defamation by implication, alleging that the article falsely implies that Nunes “conspired or colluded with his family and with others to hide or cover-up” that NuStar Farms “employs undocumented labor.” … {This court [in 2021] affirmed the district court’s dismissal of the express defamation claim but reversed and remanded for further proceedings on the claim for defamation by implication. [See this post. -EV]}
[As to the implied defamation claim,] Nunes presented insufficient evidence that he is entitled to damages, so we need not address other elements of his claim.
A defamation claim under California law [which applies to Nunes’s claims -EV] requires a plaintiff to prove (1) a publication that is (2) false, (3) defamatory, (4) and unprivileged, and (5) that causes special damage. California Civil Code § 48a gov
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