The defamation lawsuit filed last month by Rep. Devin Nunes, R-Calif., was sketchy at best. But the one he filed yesterday is nonsense on a pogo stick. His absurd legal claims bounce up again and again without any firm grounding.
Ignoring decades of precedent placing a very high bar in the way of libel suits filed by public officials, Nunes filed suit in March against Twitter and political consultant Liz Mair for allowing, or promoting, what the congressman described as an “orchestrated defamation campaign of stunning breadth and scope.” As almost every legal expert I can find attests, the case against Twitter and Mair will be hard for Nunes to win.
The new suit, this time against the McClatchy newspaper company and, again, against Mair, is even worse. On its own, it is so absurd that one can only think its real purpose is to allow Nunes more legal “discovery” motions to fish for information potentially helpful not really for this suit, but instead for his first suit against Mair.
The suit says McClatchy, through the Sacramento Bee (one of its papers), schemed with its reporter MacKenzie Mays and with Mair to “defame [Nunes] and destroy his reputation.” It did so by publishing a story headlined “A yacht, cocaine, prostitutes: Winery partly owned by Nunes sued after fundraiser event.”
As headlines sometimes do, this one horribly oversimplified Nunes’ connection, which in truth appears quite tenuous, to the yacht party in question. The story’s full text, however, provides plenty of context. It makes abundantly clear that Nunes’ only known association with the allegedly cocaine-fueled night cruise was that he is apparently a small co-investor in the wine company, the charitable arm of which sponsored the auction through which the cruise was procured.
As Mays accurately reported, “Limited partners [such as Nunes] are only liable for the debts equal to their investment in the company, and typically have ‘little knowledge or participation in the activities of the partnership,’ according to the California Tax Service Center.”
The news article gave copious space to statements by the winery’s spokesperson, and the paper asked Nunes’ office for comments that were not granted. Other than some ongoing confusion about whether any investors in the winery actually were on the cruise, Nunes’ other allegations of “falsehoods” in the Bee’s reporting amount to mere quibbles over word use. At great length, for instance, Nunes’ suit says a sentence was blatantly false because it wrongly conflated the timing of a wine sale to Russian clients and the timing of the Nunes-led congressional investigation surrounding the Trump-Russia investigation.
Here’s the sentence: “While Nunes’ ties to Alpha Omega made national headlines last year because it was discovered the winery sold wine to Russian clients while the congressman was at the helm of a federal investigation of Russian meddling into the presidential election, there has been little mention of the lawsuit.”
That’s not libel; it’s bad writing. The second “while” is left dangling, unclear if it refers to when the sale was “discovered” or when Nunes was doing the investigation four years later. It hardly amounts to an obvious untruth.
Likewise, the headline, as many bad headlines are, is too sensationalistic. Its implication is that Nunes had direct involvement with the coke cruise. The implication was deeply unfair, but it’s also not an explicit claim.
That, however, is why headlines are followed by full, factual stories. If every oversimplified headline were grounds for a libel lawsuit, most newspapers would have been out of business long ago.
And for a story to libel a public figure — at least under existing Supreme Court precedent — it must be knowingly and recklessly untrue and must show evidence of “actual malice.” This story was neither; it was just sloppy.
Meanwhile, Nunes’ suit says Mair conspired with the Bee to see the story published. The supposed proof lies in the fact that Mair, a consultant who acknowledges she was paid to embarrass Nunes, enthusiastically retweeted the Bee’s story.
News for Nunes: Retweets of the work of others aren’t libel. If they were, hundreds of millions of people would be subject to expensive legal action.
In all, Nunes’ lawsuit reads like a right-wing mirror image of Hillary Clinton’s infamous, fevered warnings about a “vast right-wing conspiracy.” The suit claims that “the full scope of the conspiracy, including the names of all participants and the level of involvement of any agents or instrumentalities of foreign governments, is unknown at this time and will be the subject of discovery in this action.”
Nobody can doubt that Nunes was treated unfairly. But to suggest a worldwide cabal is trying to kneecap him is to exhibit a horrid delusion about collusion.
Memo to the congressman: You’re just not that important.
