Devin Nunes Is Still Suing A Satirical Cow & A Political Consultant, But Judge Rejects Attempt To Bring Twitter Back

from the will-it-ever-end? dept

Back in June, we wrote about how a judge had sided with Twitter in the very first of Rep. Devin Nunes' long series of frivolous SLAPP suits, saying that the company was clearly protected from lawsuit by Section 230 and that it did not need to reveal the identity of the two satirical Twitter accounts who had mocked Devin Nunes so mercilessly that he decided to ignore his oath to protect the Constitution (which, last I checked, still includes the 1st Amendment) and sued.

Some assumed that this was the end of the lawsuit. It was not. First of all, the lawsuit against the two satirical accounts (one claiming to be Devin Nunes' cow and one claiming to be Devin Nunes' Mom) along with political consultant Liz Mair, were still alive and kicking unfortunately. But also, Nunes is still attempting to bring Twitter back into the case. He has filed a proposed amended complaint that his lawyer -- the ever ridiculous Steven Biss -- argues should get around Section 230 and make Twitter a party to the lawsuit. And... just as I originally finished writing this story, Judge John Marshall rejected that attempt. At around the same time, Liz Mair has filed her attempt to get the case against her dismissed in both this case, as well as in the second case Nunes filed against her.

Let's start by looking at the proposed amended complaint. As "amended complaints" go, following a judge completely dismantling your legal arguments, this is... not very amended. Indeed, I scrolled through both the original and the amended complaint and they appear to be identical, page for page (if there are any changes, they are so minor as to be cosmetic, and I couldn't see any), right up until the very, very end. While the original complaint had five claims (negligence, defamation per se, insulting words, common law conspiracy, and injunction), the new one has... six. After it includes the identical (as far as I can tell) first five claims, it adds in a sixth: "aiding and abetting." This is Biss's weak ass attempt to bring Twitter back into the case and get around Section 230:

Twitter aided and abetted the defamation of Nunes, the violations of § 8.01-45 of the Code, and the conspiracy by Mair, Mair Strategies, @DevinNunesMom and @DevinCow. It is, therefore, jointly liable for those torts....

Twitter actively participated in, aided and abetted Mair, Mair Strategies, @DevinNunesMom and @DevinCow’s intentional torts by (a) knowingly hosting and monetizing the abusive, hateful and defamatory content – providing both a voice, exposure to a massive audience and financial incentive to the defamers – thereby material contributing to the defamation, (b) using its algorithms and targeting capabilities to surreptitiously and deceptively shadow-ban Nunes, impeding his speech, and, thereby, amplifying the defamation of Mair, Mair Strategies, @DevinNunesMom, @DevinCow and others, (c) intentionally abandoning and refusing to enforce its Terms of Service and Twitter Rules against Mair, Mair Strategies, @DevinNunesMom, @DevinCow and others who post defamatory statements about Nunes with the express purpose to facilitate the defamation, (d) completely ignoring lawful complaints about offensive content and by allowing that content to remain accessible to the public and to be republished, (e) by permitting its platform to be populated and used by bots whose sole purpose it was/is to republish the false and defamatory statements by Mair, Mair Strategies, @DevinNunesMom, @DevinCow and others who post defamatory statements about Nunes, (f) by selectively encouraging defamation of Nunes in order to further a left-wing political agenda, to undermine public confidence in Nunes and to benefit his opponents and opponents of the Republican Party. In this case, Twitter contributed materially to the illegal conduct of defamers Mair, @DevinNunesMom and @DevinCow. Twitter provided a “public square” for these Democratic political operatives. Twitter intended to generate and proliferate the false and defamatory statements about Nunes in order to influence the outcome of the 2018 Congressional election and to intimidate Nunes and interfere with his important investigation of Russian involvement in the 2016 Presidential Election. Twitter used its platform, including its proprietary algorithms, selectively to convey its corporate/institutional viewpoint, its position on issues and candidates for office, such as Nunes, to influence the outcome of elections, such as the 2018 election for California’s 22nd Congressional District, and as a dumping ground for opposition research.

This is... not how any of this works. At all. You can't just ignore Section 230 by claiming a website "aided and abetted" the bogus other claims you're arguing.

And thus it did not take long for Judge Marshall to reject this in a short letter -- not even getting at the ridiculous amended complaint, but rather pointing out that Biss is just bad at his job and filed his request for leave to amend way too late:

The Plaintiff in oral argument on the motion to dismiss referenced leave to amend to file an amended complaint even though there was no notice of hearing filed for that to be heard on June 12, 2020. The Plaintiff did not file a motion for leave to amend to add a count against Twitter until July 28 four days after the order had been entered dismissing Twitter from the case and over a month after Plaintiff had been notified of the dismissal of Twitter by the court's opinion letter.

The court denies Plaintiff's request for leave to amend as the dismissal of Twitter as a defendant occurred prior to the filing of a motion for leave to amend.

In other words, as will be no surprise to regular readers of this saga, Steven Biss is bad at his job.

As for Mair, she is trying to (quite rightly) get out of both of the nonsense SLAPP suits that Nunes has filed against her, and her arguments in both cases is the legal equivalent of "WTF is this, I don't even..." but in legalese.

First, many (if the "statements" addressed in the Complaint consist only of hyperlinks or editorialized descriptions, rather than the exact words of the alleged defamatory statement. Count II must be dismissed as to each and every one of these statements: "Good pleading requires that the exact words spoken or written must be set out in the declaration in knee verba. Indeed, the pleading must go further--that is, it must purport to give the exact words." ... Particularly in a case brought by an elected official against private citizens who dared to challenge his qualifications for office, the core requirements of defamation law must be respected.

Then her lawyer points out that even if Nunes had shown defamatory statements by Mair, which he has not, he hasn't shown actual malice (which means that Mair knew they were false, or said them with reckless disregard to whether or not they were true), which is the required standard for defamation of a public figure. The actual malice standard -- for very good reason -- is where many vexatious SLAPP suits go to die:

As the Virginia Supreme Court has recognized, "the burden of proving 'actual malice' is upon the plaintiff[,] who must demonstrate by clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubt as to the truth of his statement."... This demanding standard applies with full force even where criticism "include[s] vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."...

The Complaint fails that standard. Its allegations of "actual malice" are conclusory and thus inadequate.... This deficiency is not cured by Rep. Nunes's repeated allegations that Mair harbored "hate[]," "disdain," and "ill will" towards him...

In fact, the Complaint's non-conclusory allegations defeat an inference of actual malice.... Most of Mair's allegedly defamatory statements were based directly on news reports and court filings whose truth Mair had no reason to doubt.... There is thus no valid basis to infer that she acted with a "high degree of awareness of probable falsity."

And then, of course, there's the other reason why most SLAPP suits from angry, insecure, brats tend to fail: what they got mad about is usually someone's opinion. As it was here.

Here, many of the alleged defamatory statements by Mair rank as opinions. Those include (but are not limited to) declaring that Rep. Nunes is "a clown with big league ethical issues," calling him "Dirty Devin," deeming controversial use of PAC funds to be "a legal problem, not just an ethical or optics-related one," stating that Rep. Nunes should be held accountable for "having voted for warrantless wiretapping and unlimited surveillance of Americans' emails ([including] Carter Page's)," and stating that Congress should "prioritize review of Rep. Nunes' investment and involvement in the Alpha Omega Winery, and the facts reported by the Fresno Bee." None of these statements can be described as objectively "true" or "false." Each is a subjective opinion and thus shielded by the First Amendment.

That conclusion is confirmed by context. Mair was commenting in the political arena about the news of the day, and "[p]otentially defamatory statements" that are "made during the course of an ongoing public controversy" are "likely to be understood to be rhetorical opinion" rather than "assertions of fact." Judge Robert D. Sack, 1 Sack on Defamation: Libel, Slander, and Related Problems.... If Rep. Nunes is allowed to hold citizens liable for expressing political opinions, then Americans throughout the Nation will face legal peril as they engage in democracy.

There's a lot more in the response but those are the key points on the defamation claims. The other claims are just silly add-ons that are just attempts to add emphasis and try to get around the obviously bogus defamation claims. I will note the dismantling of the "conspiracy" claims is particularly fun:

In his efforts to establish a conspiratorial agreement, Rep. Nunes relies mainly on allegations that three of the Defendants tweeted about similar subjects and occasionally retweeted or liked each other's tweets.... But if that were the standard, millions of Americans would be shocked to learn that they are enmeshed in all manner of conspiracies. It would not comport with the First Amendment of the US. Constitution--or Article I, Section 12 of the Virginia Constitution--to treat routine political speech on social media as a coordinated plot.

Mair does try to make use of Virginia's (unfortunately weak, though hopefully soon to change) anti-SLAPP law. The argument in the satirical tweets lawsuit also includes the fact that Nunes appears to have sued Mair over the same basic points in his second SLAPP lawsuit (the one against McClatchy and Mair) saying that he's trying to get two shots at this same issue in separate courts -- and says it's "improper claim splitting."

In the filing to get out of that other case, Mair notes that this time she's only being sued for an alleged conspiracy, which is also utter nonsense:

This lawsuit is a direct assault on the freedom of speech. Devin Nunes (a Member of Congress) has sued Liz Mair (a private citizen) for tweeting articles critical of his conduct while in public office--and for sharing an opinion critical of him with a reporter at McClatchy.

Nunes does not allege in this case that Mair committed defamation. Instead, he seeks to hold Mair liable for allegedly defamatory statements published by McClatchy. To do so, he posits that Mair somehow entered into an illegal conspiracy with McClatchy. But the most essential element of any conspiracy claim is an agreement--a meeting of the minds--to carry out unlawful acts together. And the Complaint comes nowhere close to adequately alleging the existence of such a conspiratorial agreement: it fails to allege the requisite details about when, where, and how this agreement supposedly came into being; it papers over those defects with conclusory assertions; and it resorts to exceedingly unreasonable inferences from a mere handful of factual allegations. Simply put, sharing political opinions with a newspaper--and then tweeting, retweeting, and liking relevant articles by that newspaper--do not suggest the existence of an illegal conspiracy. They are signs that we live in a democracy where people can express political opinions and criticize elected officials on social media platforms. For good reason, no court has ever upheld a conspiracy theory--based mainly on tweets and retweets--like the one that Nunes has advanced here.

That is reason enough to dismiss the Complaint. Yet there is more: in order to impose liability on Mair for allegedly conspiring with McClatchy to defame him, Nunes must adequately allege that McClatchy actually defamed him. None of the alleged defamatory statements described in the Complaint, however, are actually defamatory: most of them are not pleaded with their exact words and so must be dismissed; Nunes has failed to allege that any of them was published with actual malice; and most of them are categorically non-actionable as a matter of law.

It is ridiculous that these cases have gone on this long and are still continuing. For what it's worth the @DevinCow account has a GoFundMe campaign set up for its legal fees, and Mair is accepting funds via her Swamp Accountability Project page.

One hopes the judges in these two cases recognizes how insane all this is and benchslaps Nunes and Biss.

Filed Under: 1st amendment, anti-slapp, defamation, devin nunes, devin's cow, free speech, liz mair, satire, section 230, slapp, steven biss
Companies: twitter

Judge Rejects Devin Nunes' SLAPP Suit Over The Esquire Article He Really, Really Doesn't Want You To Read

from the have-you-read-it-yet? dept

A federal judge has happily dismissed one of Devin Nunes' many SLAPP suits. This isn't much of a surprise given what the judge had said back in May regarding Nunes' Iowa-based SLAPP suit (reminder: Iowa has no anti-SLAPP law) against Esquire Magazine and reporter Ryan Lizza. The lawsuit was over this article that Devin Nunes really, really doesn't want you to read: Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret. Reading that will make Rep. Devin Nunes very, very sad.

Back in May, the judge made it clear that he didn't think there was much of a case here, but gave Nunes a chance to try to save the lawsuit. As you can already tell, his lawyer, Stephen Biss, has come up empty in his attempt. The court easily dismisses the case with prejudice. First, the judge goes through the various statements that Nunes/Biss claim are defamatory and says "lol, no, none of those are defamatory."

The statements at issue also do not assert provably false facts, nor do they imply the existence of undisclosed facts. The statements that plaintiff has a secret, hid or concealed his family’s move, or conspired with others to hide the move do not have “precise core meaning for which a consensus of understanding exists.” ... There is no precise meaning for how many people can know a fact for it to remain a “secret” nor is there an accepted line between “hiding” or “concealing” a fact and simply declining to publicize it. Likewise, in this context there is no precise meaning of “conspiracy.” For the same reasons, the challenged statements are not “objectively capable of proof or disproof[.]”...

The context of defendants’ statements also weighs in favor of being protected opinions. The context of the publication includes the “social context” of the publication, which includes the style of writing and the intended audience.... The Article is written in a first-person perspective and includes numerous instances of Lizza’s subjective mental impressions. This weighs against the statements being reasonably construed as statements of fact as opposed to Lizza’s characterizations or opinions.

Incredibly, the ridiculous, performative, hyperbolic language that Biss employed in the lawsuit -- calling Lizza a "left-wing political journalist, well known for his extreme bias towards Plaintiff" comes back to bite Nunes in this case:

The context also includes “public context or political arena in which the statements were made.”... Plaintiff alleges that Lizza is a “left-wing political journalist, well known for his extreme bias towards [p]laintiff.” .... At the time defendants published the Article, plaintiff was a sitting Republican congressman running for re-election.... In this public context, the Court must construe the Article in light of this nation’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” ... Accepting plaintiff’s allegations as true, any reasonable reader would construe the Article in light of Lizza’s well know political bias. Thus, any reasonable reader would understand defendants’ use of terms like “secret” or “conspired” as the type of hyperbole that is to be expected in the political arena rather than an insinuation of fact.... In this public context, no reasonable reader could construe Lizza’s statements as facts rather than opinions.

Nunes would have lost either way, but it's hilarious to see the ridiculous, over-the-top language his lawyer used come back directly to bite him.

Also, the judge points out that Lizza's articles support the conjecture that Nunes is so upset about all this pretty strongly:

Finally, the statements at issue cannot be construed as implying undisclosed defamatory facts because Lizza disclosed the basis for his conclusions. As to the statements that plaintiff’s family’s move was a “secret” or was “concealed,” the Article states that Lizza was unable to find any mention from plaintiff or the press in plaintiff’s district mentioning the move.... The Article also mentions a Wall Street Journal editorial which discussed plaintiff’s family’s dairy farm and featured a Tulare, California dateline.... Nothing in the context of the Article otherwise implies that defendants’ characterization is based on any other undisclosed facts.

Similarly, as to the conclusion that plaintiff and others conspired to hide the move, the Article points to two specific instances that support the statement. First, the Article notes that plaintiff appeared at a town hall with Congressman King in a town fifty miles from Sibley. The press release for the event did not mention plaintiff’s family ties to the district, and instead stated that plaintiff’s “family has operated a dairy farm in Tulare County, California for three generations.” ... Second, the Article discusses how the Dairy Star article about NuStar mentioned several members of the Nunes family, but omitted plaintiff.... Nelson told Lizza he omitted plaintiff at plaintiff’s family’s request.... These facts show the basis for defendants’ conclusion that plaintiff and others “conspired” to hide plaintiff’s family’s move, but do not imply the existence of other facts. The reader is “free to accept or reject [defendants’] opinion based on their own independent evaluation of the facts.”

As for the statement in the article about Nunes trying to discredit the Russia investigation and "protect[ing] Donald Trump at all costs, even if it means shredding his own reputation and the independence of the historically nonpartisan committee in the process" is deemed rhetorical hyperbole:

This statement is a protected opinion for two reasons. First, the statement is “rhetorical hyperbole” and is thus protected by the First Amendment. In, Adelson v. Harris, 774 F.3d 803, 807 (2d Cir. 2014), the court held that statements that plaintiff’s money was “dirty” and “tainted” was non-actionable rhetorical hyperbole protected by the First Amendment. Terms like “battering ram,” “at all costs,” and “shredding” are similar rhetorical hyperbole as well.

Second, this statement also has no “precise core of meaning for which a consensus of understanding exists” and thus is not objectively capable of proof or disproof..... There is no core meaning about what it means to use a committee as a battering ram, protect someone at all costs, or shred one’s own reputation. Even if these terms had a precise meaning, plaintiff has not explained how such statements could be proved or disproved. Plaintiff argues these statements “accuse Plaintiff of abusing his position as Chairman of the House Intelligence Committee, obstruction of the Russia investigation, prejudice, impartiality and unethical behavior.” .... Plaintiff fails, however, to identify any provably false facts implied by the Article that would lead to these conclusions. Also, for the same reasons discussed in the previous section, the context of defendants’ statements, particularly these statements about issues of fundamental public importance, must be construed as opinions entitled to protection in the context of political debate concerning a public official.

Another statement -- regarding Nunes' family selling their California dairy farm and moving to Iowa for a new farm -- the judge notes that Nunes made no effort to claim that this statement is false, even though it was listed as one of the defamatory statements in the lawsuit:

Plaintiff has not alleged that any aspect of this statement is false, nor does plaintiff’s brief articulate how this statement is defamatory. Plaintiff appears to admit the statements to the extent it alleges that plaintiff’s parents, brother, and sister-in-law currently live and work in Sibley, Iowa.... Regardless, nothing about this statement is defamatory. None of the facts about plaintiff’s relation to various individuals and their real estate transactions tends to harm plaintiff’s reputation. As a matter of law this statement is not defamatory.

One by one the judge rejects each and every claimed defamatory statement for reasons like these. Another one gets rejected because it's about Nunes' family, not himself. Another for being "substantially true." Basically just as we said when this suit was filed, none of this is even remotely defamatory.

Biss tried to get around the fact that none of the actual statements are defamatory by arguing that the article as a whole implied defamatory things and... that's not how any of this works. And the judge knows that.

Plaintiff fails to state a claim for defamation by implication for two reasons. First, no reasonable person could draw plaintiff’s asserted implication from the Article. Second, even if a reasonable person could draw the implication, there is no indication that defendants intended or endorsed the implication.

He also suggests there are "defamatory inferences," and again, the judge points out that the article does not support this claim:

Reading the entire Article in context, no reasonable reader could reach plaintiff’s alleged implication because the Article negates those implications. The Article states that plaintiff “has no financial interest” in NuStar. ... The Article also makes clear plaintiff is not involved in managing NuStar. ... (noting that the Dairy Star article stated that NuStar was managed by Anthony Jr. “with his son and wife” and noting in the next paragraph plaintiff is not mentioned anywhere in the Dairy Star article). No reasonable reader could understand the Article to imply the exact opposite of its text, i.e. that plaintiff had some financial or managerial interest in NuStar.

Likewise, no reasonable reader could read the Article to imply plaintiff conspired with others to hide NuStar’s use of undocumented labor. The Article is clear the conspiracy was “to hide the fact that [plaintiff]’s family sold its farm and moved to Iowa[.]” .... Similarly, no reasonable reader could find the “politically explosive secret” referenced in the title of the Article is NuStar’s use of undocumented labor. The Article states “[s]o here’s the secret: The Nunes family dairy of political lore—the one where his brother and parents work—isn’t in California. It’s in Iowa.” ... Given these express statements, no reasonable reader could infer that plaintiff was involved in a conspiracy to hide NuStar’s use of undocumented labor.

Then after all of that, the court also notes that Nunes failed to show actual malice, which, of course, is necessary in defamation cases involving public figures. And, as a reminder, "actual malice" does not mean "he didn't like the guy." It has a very specific meaning: that the statements were made knowing they were false or with reckless disregard for whether it was false or not. And, as the judge notes, there was no evidence to support this at all.

The cases plaintiff cites in support of his argument highlight the factual insufficiency of his complaint. For example, plaintiff asserts defendants acted with actual malice because they failed to observe journalistic standards, conceived of a storyline in advance and sought to find evidence to confirm that story, and relied on unreliable or biased sources in researching the Article.... These allegations, however, are “naked assertion[s]” devoid of “further factual enhancement,” and “labels and conclusions,” that fail to plausibly assert actual malice....

[....]

The Court will not reiterate every factual deficiency in the amended complaint, but some examples are illustrative. Plaintiff alleges defendants “relied on sources, including anonymous and unnamed persons, they knew were wholly unreliable and had an axe to grind against Plaintiff and his family.”... Plaintiff does not identify the sources, what axe the sources had to grind with plaintiff, or any factual basis from which the Court could plausibly find that defendants’ sources were unreliable or that defendants knew or should have known they were unreliable. To the contrary, the Article itself refers to two unnamed, but not anonymous, sources who had firsthand knowledge of NuStar’s use of undocumented labor.... This is fundamentally different than the cases upon which plaintiff relies. See Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 315 n.10 (5th Cir. 1995) (noting that evidence of an ulterior motive can “bolster an inference of actual malice,” and citing specific facts about the relationship between the parties from which the jury could have found that defendant made defamatory statements with actual malice); AdvanFort Co. v. Mar. Exec., LLC, No. 1:15-cv-220, 2015 WL 4603090, at *8 (E.D. Va. July 28, 2015) (finding that plaintiff could plausibly allege actual malice if plaintiff specifically asserted that defendant knew the author’s relationship with plaintiffs had “gone sour” after their past “unsuccessful business relationship”); Barreca, 683 N.W.2d at 123 (reversing summary judgment when record established defendant made defamatory statement based on one anonymous and unverified phone call, and portions of the statement at issue arguably showed defendant “entertained serious doubts about the truth of the phone call”).

Similarly, plaintiff alleges defendants acted with actual malice because they republished the Article.... The amended complaint asserts defendants republished the Article by tweeting links to it.... This argument fails both factually and as a matter of law. Publishing a link to an existing story is not a republication of the story.... Even if tweeting links to the Article constitutes republication, the cases plaintiff cites are inapposite here.

For what it's worth, the judge also makes a brief mention of the language that Biss used in the lawsuit to smear Lizza, regarding some rumors that went around about him. We had pointed out earlier that these claims seemed much more "defamatory" than anything Lizza wrote about Nunes. Lizza's lawyers had asked the court to strike those statements from the motion, which the court denies as moot (since the whole case is being tossed) but does note:

The Court notes, however, the material identified by defendants ... is immaterial, impertinent, and scandalous. Plaintiff’s personal attacks on Lizza have no bearing on this case. This is apparent because plaintiff never refers to the challenged allegations in resisting defendants’ motion to dismiss. The allegations likewise are prejudicial to Lizza and have criminal overtones.

The one annoying part of the ruling has to do with anti-SLAPP laws. Even though, as noted, Iowa has no anti-SLAPP law, Lizza and Hearst sought to say that California's strong anti-SLAPP law should apply (seeing as any reputational damage to Nunes would occur in California). The court rejects that on procedural grounds, saying that standard 12(b)(6) motion to dismiss procedures (and other rules of federal civil procedure) "pre-empt" California's anti-SLAPP law, since they grant the same basic protections in getting cases tossed out early. That's an argument that comes up frequently in anti-SLAPP cases. And while it's true that a motion to dismiss can -- at times -- serve a similar purpose to an anti-SLAPP motion to strike, there are important procedural differences that protect free speech, including the attorney's fees award that goes along with most anti-SLAPP laws, including California's. Unfortunately, here, the court says that cannot apply.

This is yet another reason why we absolutely need a federal anti-SLAPP law with fee shifting as part of it. Still, overall, this is a good, clean ruling rejecting one of Nunes' silly SLAPP suits. This result was inevitable, but still created a nuisance -- which likely was the intent all along.

Filed Under: 1st amendment, anti-slapp, california, defamation, devin nunes, esquire, free speech, iowa, opinion, ryan lizza, slapp, slapp suit, steven biss

About Time: New York Finally Passes Anti-SLAPP Bill

from the crazy-that-it-took-this-long dept

It's been truly amazing that, for years, despite being the heart of the media business in the US, New York state had a pathetically weak anti-SLAPP bill. It only applied to issues related to petitioning the government. So you were protected from lawsuit if you were complaining about a law or zoning issues, but these days most SLAPP suits are unrelated to such things. So it's exciting to find out that the New York legislature has finally passed a real anti-SLAPP law. The actual bill expands the coverage of NY's anti-SLAPP law to include:

Any communication in a place open to the public or a public forum in connection with an issue of public interest; or ii. Any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furth- erance of the exercise of the constitutional right of petition. The bill also specifies that "public interest" should be broadly construed.

That's... great. Like many other anti-SLAPP laws, this one seeks to stop expensive discovery early on until the plaintiff can prove their case has a chance, and expands the situations in which attorneys' fees will be awarded to the defendant who was victimized by a SLAPP suit. The new law says that such costs and fees:

"shall be recovered upon a demonstration that a SLAPP suit was commenced or continued without a substantial basis in fact or law and could not be supported by a substantial argument for the extension, modification, or reversal of existing law."

NY Senator Brad Hoylman took a well deserved victory lap for getting this bill through (it still needs to be signed by Governor Cuomo):

Of course, given that we were just talking about how the 2nd Circuit (which covers NY), has decided that state anti-SLAPP laws don't apply in federal court, that still means that those wishing to bring SLAPP suits there can get around the law by coming up with some federal cause of action. This is yet another reminder of why we need a federal anti-SLAPP law already and it's a travesty we don't have one yet.

Filed Under: anti-slapp, chilling effects, defamation, free speech, new york, slapp

Anti-SLAPP Law Turns Bogus Defamation Lawsuit Into A $26,500 Legal Bill For The Plaintiff

from the federal-law-sure-would-be-nice-tho dept

Tennessee's new anti-SLAPP law has resulted in another bogus defamation lawsuit being dumped by a plaintiff before it could do any more damage… to the plaintiff. The great thing about anti-SLAPP laws is they shift the financial burden to the person bringing the lawsuit. If the lawsuit is completely without merit -- like many of those filed in Tennessee before the new law -- the plaintiff pays the defendant's legal bills.

The new law appears to have slowed the flow of vexatiously bullshit lawsuits into Tennessee courts. But there are some brave, but mostly stupid, plaintiffs willing to take the new law out for a spin. Carl Vonhartman is probably more stupid than brave. He sued Kortni Butterton for defamation after she wrote a Facebook post (on a private, invite-only page) about her experience with Vonhartman after she rejected him on a dating app.

“His Instagram is full of him being a d*****bag a****** making fun of people and generally just being a d***,” Butterton wrote.

On January 29, Butterton said the man from the dating app showed up at her door.

“I'm locked in my bathroom,” she can be heard saying to a 911 operator. “Oh my God, he's banging on my f****** house right now. He is consistently ringing my doorbell right now.”

Before police arrived, the man left.

[...]

Butterton was so frightened by the experience, she filed for a temporary order of protection, learning that the man she had rejected on the dating app’s name was actually Carl Vonhartman.

At the hearing to extend the order, Butterton explained that when she rejected Vonhartman through the app, he did not take the rejection well, asking for an explanation as to why.

Vonhartman sued [PDF], claiming he was defamed by all of this, including Butterhorn's critique of his Instagram page. Daniel Horwitz -- well-known here for his fierce defense of Tennessee residents hit with bogus libel lawsuits -- fired back [PDF], pointing out Vonhartman's defamation claims were ridiculous for a number of reasons.

[T]he Plaintiff’s claim for slander based on Ms. Butterton’s “testi[mony] in court on February 10, 2020,” during her order of protection hearing in Davidson County General Sessions Court Case No. 20OP250 is barred by Tennessee’s absolute testimonial privilege, which affords witnesses like Ms. Butterton absolute immunity for testimony given during a judicial proceeding.

[...]

[T]he Plaintiff’s claim for libel based on Ms. Butterton’s “swor[n ] allegations in her Petition for [an] Order of Protection” in Davidson County General Sessions Case No. 20OP25024 is barred not only by the absolute testimonial privilege noted above, see id.—it is also barred by the absolute litigation privilege, which guarantees all litigants “the freedom to institute an action without fear of being sued based on statements made in the course of the proceeding[.]”

[...]

[T]he Plaintiff’s claim for slander based on “false statements” that the Plaintiff alleges Ms. Butterton made to the police when she “called 911 on January 29, 2020,” is barred—as an initial matter—by the aforementioned absolute litigation privilege that extends to communications preliminary to litigation… It is also barred, independently, by the conditional public interest and common interest privileges, which immunize from defamation liability good-faith reports to law enforcement…

And here's the knockout punch:

[G]iven his abysmal reputation for both criminality and terrorizing women, the Plaintiff is libel-proof.

Along with a DUI arrest, there's the simple assault charge brought against Vonhartman, which contains this telling bit of narrative in the police report:

[The victim] advised that she told carl [Vonhartman] she was going to call the police due to the assault. she advised that carl told her "if you call the police i am going to post naked pictures of you on the internet". jennifer advised she changed her mind at that time about calling the police.

[...]

Jennifer also advised police that she has numerous text messages from carl saved that state he will post pictures of her online and also get her fired from her job.

Also included in the filing's exhibits are some Facebook Messenger chats in which Vonhartman threatens the Facebook page administrator with lawsuits, a "war," and getting her… fired from her job.

The judge overseeing the case never got a chance to address Horwitz's motion to dismiss. It must have been enough for Vonhartman that his lawyer read it. As Horwitz reports, the lawsuit has been settled and his client is the recipient of the largest fee award in the state's short history under a new anti-SLAPP law.

From the order [PDF]:

As evidenced by the signatures of adversary counsel below, all matters in controversy between the Parties have been settled and compromised, and subject to the Court’s approval, the Parties have agreed to the following conclusive resolution of this action:

1. The Plaintiff stipulates that his Complaint failed to state any cognizable claim for relief against the Defendant, and that for the reasons set forth in the Defendant’s Memorandum of Law in support of her petition to dismiss this action pursuant to the Tennessee Public Participation Act (Doc. #12), the Defendant’s Tenn. Code Ann. § 20-17- 104(a) Petition to Dismiss the Plaintiff’s Complaint Pursuant to the Tennessee Public Participation Act (Doc. #11) should be and is hereby GRANTED. Accordingly, the Plaintiff’s Complaint, and all causes of action asserted within it, shall be DISMISSED WITH PREJUDICE.

2. Upon entry of this Order, judgment shall be ENTERED in favor of the Defendant against the Plaintiff in the amount of twenty-six thousand and five hundred dollars ($26,500.00)—inclusive of all available claims for attorney’s fees, discretionary costs, and sanctions…

With a plaintiff opening with a lot of bluster and non-actionable claims and leaving $26k lighter, perhaps other litigation hopefuls will decide they'd rather not risk their own cash on questionable legal arguments. Every loss is a deterrent, but one with a $26,500 price tag is especially effective.

Filed Under: anti-slapp, carl vonhartman, dating, defamation, kortni butterhorn, rejection, slapp, tennessee

SmileDirectClub Sues NBC For $2.85 Billion, Claims Factual Statements And Quotes From Customers Are Defamatory

from the litigating-market-cap-losses-as-a-service dept

SmileDirectClub -- maker of in-home dental appliances -- is back in the lawsuit business. A couple of years ago, the company sued Lifehacker over an article originally titled "You Could Fuck Up Your Mouth With SmileDirectClub." The company claimed any criticism of its products and techniques was defamatory. Despite the original inflammatory headline, the Lifehacker piece was even-handed, warning potential customers that semi-DIY dental work has some downsides. SmileDirect voluntarily dismissed the lawsuit a week later, perhaps sensing a judge -- even one in bogus lawsuit-friendly Tennessee -- might not agree that critical opinions, however harsh, were libelous.

Apparently hoping to undermine the "defamation" market, SmileDirectClub began tying refunds to gag orders, refusing to give unhappy customers back their money unless they signed a non-disparagement agreement. Now, SmileDirect is headed back to court to take on NBC for its critical news report. This time, SmileDirect has to talk its way past a revamped state anti-SLAPP law to get the $2.85 billion it's seeking in this lawsuit. (h/t Daniel Horwitz)

The lawsuit [PDF] appears to have been filed by lawyers being paid by the word. It's over 200 pages long and comes with a comprehensive table of contents. Longer does not mean better-developed. And it also doesn't mean the legal arguments are stronger than those found in more sensibly-sized filings.

SmileDirect says NBC's report did an incredible amount of damage to its business.

SDC’s stock price, which had been trending upward prior to the Reports, plummeted 15% the day after the Reports were published. Prospective patients cancelled their treatment. SDC’s revenue fell. And, SDC’s market capitalization dropped by over $950 million.

The company believes NBC's report (which was sensibly titled "SmileDirectClub Promises Easy Teeth Straightening. Some Patients Report Problems.") did all of this and more. The lawsuit accuses NBC of deliberately deploying lies because the reporters chose to ignore the documents and interviews SmileDirect offered when it found out this report was going to be aired. "For the clicks" is the argument SDC makes.

SDC’s employees and officers across the country, as well as SDC-affiliated doctors, witnessed their hard work being undermined by a news organization and reporter who cared more about ratings and making a splash than the truth.

However, the arguments made by the company while establishing jurisdiction seem to undercut SDC's narrative about NBC reporters deliberately avoiding contact with the company.

[N]BC knowingly and intentionally contacted SDC in Davidson County in connection with the Reports. NBC initiated, received, and responded to, communications (electronic and telephonic) with SDC employees located in Davidson County. And, NBC repeatedly solicited information from SDC employees located in Davidson County over the course of three months prior to the publication of the Reports.

[...]

NBC knowingly and intentionally traveled to Davidson County in connection with the Reports where it, among other things, interviewed an SDC officer. NBC requested an interview with an SDC officer. NBC voluntarily decided to travel to Davidson County to conduct the interview.

Here's as concise a summary of SDC's allegations as can be found in the sprawling lawsuit:

As discussed below, NBC’s online report was defamatory and disparaging because it: (a) falsely stated that treatment using SDC’s platform caused health and physical problems; (b) falsely stated that treatment using SDC’s platform can cause permanent injuries and omitted material facts to falsely imply that treatment using SDC’s platform can cause permanent injuries; (c) omitted material facts about the thoroughness and extensiveness of treatment received by patients from SDC-affiliated doctors using SDC’s platform; (d) falsely stated that treatment using SDC’s platform injured Female Patient; (e) falsely stated that treatment using SDC’s platform injured Male Patient; (f) falsely stated that patients must be protected from treatment using SDC’s platform; (g) omitted material facts to falsely imply that treatment using SDC’s platform violates government regulations; (h) falsely stated that treatment using SDC’s platform is “do it yourself” dentistry and omitted material facts to falsely imply that treatment using SDC’s platform is “do it yourself” dentistry; (i) falsely stated that SDC-affiliated doctors are not involved in treating patients and omitted material facts to falsely imply that SDC-affiliated doctors are not involved in treating patients; (j) falsely implied that treatment using SDC’s platform is not safe; (k) falsely implied that treatment using SDC’s platform is “do it yourself” dentistry; (l) falsely implied that treatment using SDC’s platform is not effective for patients; and (m) falsely implied that SDC is a dishonest company.

But SDC's allegations all seem to lead to statements that appear to be factual. The company complains about statements like "nine Congressmen also asked the FDA and FTC to investigate [Smile Direct]..." (which is factual) and "More than 1,800 complaints have been filed with the Better Business Bureau…" (also factual).

The other commentary SDC complains about comes from patients who discussed their experiences with the company's products. The lawsuit lists direct quotes from unhappy customers as defamatory statements made by NBC, conveniently ignoring the source of those quotes in favor of trying to hit a bigger target.

The other stuff listed falls into the category of protected opinion. NBC's assertion that "some" patients experienced problems is not only accurate, but it's the sort of conclusion anyone would have reached by speaking to unhappy customers or reading its BBB page. SmileDirect claims its Better Business Bureau rating makes NBC's conclusions and assertions maliciously false, but it's the sort of conclusion only a company filing a 200-page complaint could reach.

SDC’s overall score by the Better Business Bureau (“BBB”) is A+, the highest available rating. At the time of the Reports, the number of issues raised with the BBB by patients treated using SDC’s platform, including non-clinical issues, was less than 0.2%. The number of issues raised with the BBB—by patients or non-patients (i.e., people pretending to be patients)—regarding clinical issues was a small percentage of that infinitesimally small percentage, less than 0.001%.

Be that as it may, there are still more than 2,000 complaints listed on the BBB site and the site has noted the company is trying to get people to speak to a customer service rep before filing a complaint. Also, as was reported earlier this year, the company has been tying people to restrictive non-disparagement agreements before issuing refunds.

Making the lawsuit longer doesn't make it any better. The same points are rehashed repeatedly in an apparent effort to bludgeon the presiding judge into arriving at the conclusion that something this lengthy must contain viable legal arguments. But it doesn't. What's called defamation in this lawsuit is a collection of factual statements, supported opinions, and direct quotes from unhappy customers.

Tennessee's anti-SLAPP law may keep SDC from bleeding NBC for too long, but there's a good chance that law will never be tested. SDC may have wanted to keep this case at home, but suing a New York-based company for $2.85 billion means the lawsuit will have to be handled in a federal court. Tying in some state claims about alleged violations of Tennessee's Consumer Protection Act won't be enough to keep it local. Unfortunately, that may work out better for SmileDirect, which will be able to force NBC to defend itself from this lawsuit. Federal courts have been very hesitant to apply state anti-SLAPP laws to federal lawsuits, highlighting (once again) the need for a federal anti-SLAPP law.

Filed Under: criticism, defamation, gag order, slapp, slapps
Companies: nbc, smiledirectclub

Judge Sends Devin Nunes' SLAPP Suits Against CNN And Washington Post Off To Their Proper Venues

from the they-deserve-to-be-in-the-trash dept

It appears that at least one judge handling Devin Nunes' various SLAPP suits in Virginia has caught on to at least some of what's going on here. Judge Robert E. Payne has now transferred two of his lawsuits -- the ridiculous defamation filing against CNN and the even sillier SLAPP suit against the Washington Post -- to better venues. In both cases, the judge seems pretty fed up with Nunes' lawyer, Stephen Biss, opening both by quoting what was said to Biss in yet another one of his silly SLAPP suits:

It is with chagrin that [the] Court must begin to address this motion by observing that . . . Plaitiff[] engages in ad hominin attacks against [CNN and others in the Amended Complaint,] which the Court cannot tolerate. . . . The Court reminds Counsel for Plaintiff[] that, as an officer of the Court, he may be sanctioned for engaging in conduct unbefitting of this Court.

There's another version of this in the Washington Post transfer, but with the defendants there rather than CNN.

For the CNN case, here's the order shipping the case off to the Southern District of New York instead of Virginia.

The court went through various tests that all seemed to raise the question: why is Nunes filing this case in this court?

It is undisputed that the Eastern District of Virginia is not Nunes's home forum. (ECF No. 20 at 7 (Nunes stating that he "is a citizen of California").) That Nunes "works at the Capitol within a few minutes' drive of Virginia," (id.), and "participates in oversight of the U.S. national security apparatus, including the intelligence-related activities of seventeen agencies, departments, and other elements of the United States Government, most of which is located in Virginia,"... does not alter this fact. Additionally,... the offending act at issue--the publication of the Article--did not occur in Virginia. The Article was researched, written, and published in New York and, to some extent, Washington, D.C. Its subject matter has nothing to do with Virginia, and the Eastern District of Virginia is thus not the nucleus of operative facts.

The court brushes off the fact that the article could be read in Virginia, noting that if that were the deciding factor, cases could be brought anywhere. It also laughs off the idea that the venue might be appropriate because that's where Steven Biss resides, relegating that silly argument to a footnote: "convenience to counsel is not an appropriate consideration in resolving a motion to transfer venue."

The court then notes that NY is much more convenient for most material witnesses, and again brushes off Biss/Nunes' attempts to throw some "local to Virginia" witnesses into the stew to muddy things up:

CNN argues that the witness convenience factor "squarely supports transfer" because Ward, Cuomo, and Bondy all reside in New York.... That all three key witnesses reside in New York favors transfer.

The only witness Nunes has identified as residing in Virginia is Parnas's former attorney, Edward MacMahon, who was mentioned only once in the Article and who has not been shown to be a material witness.... Additionally, Nunes contends that Jake Tapper..., who resides in Washington, D.C., and Parnas and Igor Fruman--Parnas's business partner and co-defendant,... who reside in Florida, are "material witnesses." ... It is clear that Tapper is not a material witness.... With respect to Parnas and Fruman, even assuming that they are material witnesses, both of these witnesses would need to travel from Florida, and New York is likely to be more accessible than Richmond, Virginia. Additionally, as CNN notes, both Parnas and Fruman are under indictment in the SDNY.

One other interesting point: the court points out that the parties are debating whether or not California's or New York's laws should apply to the case, and that supports a transfer to SDNY, which obviously understands NY law. And, the court says, even if it turns out that California's laws will apply (in which case, California's anti-SLAPP could be applied...), the court says that the SDNY is readily familiar with California law.

Separately, though, it's pretty clear that the judge is not at all happy about how Biss handled the case, and his frustration is evident. He calls out the problem of forum shopping, and suggests that the court has previously warned Biss to knock it off:

... the Court has significant concerns about forum shopping. As the Court has explained to Plaintiff's on numerous occassions, the "Court cannot stand as a willing repository for cases which have no real nexus to this district. The 'rocket docket' certainly attracts plaintiff[s], but the Court must ensure that this attraction does not dull the ability of the Court to continue to act in an expeditions manner."...

The order to transfer the Washington Post case to DC is pretty similar:

The District of Columbia is also a proper venue for this action. Venue is proper... because a "substantial part of the events or omissions giving rise to the claims occurred" in Washington, D.C. Venue is also proper... because the Post "resides" in Washington, D.C., given that the Post is subject to personal jurisdiction there, and "all defendants are residents of the State in which the district is located." Consequently, because jurisdiction and venue would both be proper in the District of Columbia, Nunes could have brought this case there...

Also, there's the fact that Nunes' lives and works in DC:

That Nunes "works at the Capitol within a few minutes' drive of Virginia" and "oversees the intelligence community, including ODNI which is located in Virginia" does not alter this fact... Indeed, Nunes's assertion that he "works at the Capitol," which is located in Washington, D.C., acts to support transferring this action to the District of Columbia.

The fact that the Washington Post prints its print edition in Virginia is... not enough to make it the proper venue:

Moreover, the Eastern District of Virginia is not the nucleus of operative facts. The offending act at issue--the publication of the Article online--occurred in Washington, D.C. ... Additionally, the Article was researched, written, and edited in Washington, D.C. with assistance from a journalist located in Moscow, Russia, not Virginia... The only connection between this action and Virginia, besides the location of Plaintiff's counsel, is that the Article was printed in Springfield, Virginia. That tenuous connection is insufficient to give significant weight to Nunes' choice of forum.

As the judge later notes: "There is no logical connection between the events in this case and this district."

It seems clear that Judge Payne sees what Biss is trying to do here, and given that, Biss may actually be at least mildly relieved to have these cases out of this judge's courtroom.

Of course, in the CNN case, NY has a very weak anti-SLAPP law as well, so that part won't necessarily help CNN. However, if CNN can convince the court that California's anti-SLAPP law applies (which it might...), then Nunes could be on the hook for CNN's extensive legal costs. As for the Washington Post case, DC does have a good anti-SLAPP law, but it's been held not to be available in federal court there, meaning that might be limited too. Still, I really do wonder how much guidance Biss has given Nunes about the liability that he, himself, may end up facing in all of these lawsuits if California's anti-SLAPP law is applied?

Filed Under: anti-slapp, defamation, devin nunes, robert e. payne, slapp, slapp suits, steven biss, venue, virginia
Companies: cnn, washington post

Judge Tells Devin Nunes' Dad (And Lawyer Stephen Biss) To Put Up Or Shut Up In Defamation Lawsuit Over Esquire Article

from the the-article-they-don't-want-you-to-read dept

Remember, Rep. Devin Nunes really doesn't want you to read this Esquire article entitled, Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret. He'd be super duper upset if you read it. The article is about how Nunes, who frequently refers to his prior job as a "dairy farmer" in Tulare, California, probably doesn't want the world to know that his family up and left California to take their farm to Iowa. The article is a worthwhile read, detailing how the information about the location of the Nunes' family farm seems to stay hidden -- including how an article that reveals the Nunes' family presence in Iowa, published in the publication Dairy Star in 2009, suddenly disappeared from Dairy Star's website when Lizza showed up in Iowa asking questions. The article also discusses how many farms in the area employ undocumented workers, but that's almost a side plot.

Either way, last fall, we wrote about how Nunes sued over the article in Iowa which, notably, has no anti-SLAPP law. As we pointed out at the time, this seemed like a case that was ripe for Hearst (the publisher of the article) and Lizza to try to make use of California's anti-SLAPP law, even though the case was filed in Iowa, because any reputational harm to Nunes would have to come in California, not Iowa. And, indeed, Hearst's smart lawyers took my advice (just kidding, they knew it without me suggesting it) and have asked the court to use California's anti-SLAPP law:

Iowa choice of law rules dictate that California law supplies the rule of decision in this case. Congressman Nunes pleads that he is “a citizen of California.”... Purported harm to his reputation would be most severely felt in the 22nd Congressional District of California, where Congressman Nunes was, at the time of publication, running for re-election.... In fact, Congressman Nunes expressly alleges that the Article was published for the purpose of “influenc[ing] the 2018 Congressional election.”... And the Amended Complaint rejects the notion that Congressman Nunes has any ties to Iowa, or to the family farm in Sibley. (“Plaintiff does not own an interest in his family’s dairy farm in Iowa, never has, and is not involved in any way in its operations.”).

For what it's worth, the filing also makes standard 12(b)(6) arguments for why the case should be dismissed even absent the California anti-SLAPP motion to strike (which would force Nunes to pay Hearst's considerable legal fees), pointing out that none of the contested statements are actually defamatory, and the complaint comes nowhere near pleading the "actual malice" standard. The judge is still considering that request, but should be ruling shortly.

What I had missed, however, was that earlier this year (perhaps realizing the California exposure of the Devin Nunes' suit), Nunes' lawyer Steven Biss filed a separate lawsuit on behalf of Nunes' family (his father and his brother) and their Iowa farm, Nustar Farms. The complaint is also against Hearst and reporter Ryan Lizza over the same article and makes the same basic defamation claims. This one demanded $25 million (Devin's lawsuit demanded $77.5 million). The court, recognizing the connection between the cases, has consolidated the two cases late last month. At least the second lawsuit has less of an argument for why California's anti-SLAPP should apply, since the plaintiffs are actually in Iowa.

So, Hearst's motion to dismiss in this case merely points out that none of the statements labelled as defamatory in the complaint are... defamatory.

Plaintiffs’ Complaint follows the same cadence as that of Congressman Nunes: It is filled with bluster, hyperbole, and conclusory allegations of fabrication and misconduct, while summarily alleging that 16 statements in the Article are false. But Plaintiffs’ Complaint does not explain why or how any of the 16 challenged statements are actionable, beyond simply quoting them and declaring them “false and defamatory.” The Complaint does not provide any factual information as to what aspects of the statements—some of which are an entire paragraph in length—are false, and why that is so. Plaintiffs have therefore failed to carry their burden of pleading falsity with sufficient factual detail to make the allegation plausible, as required by Twombly and Iqbal. See Point I.A. (At a minimum, the Court should order that Plaintiffs plead a more definite statement, with details explaining precisely how and why they maintain that the challenged statements are false. See Point II.) Plaintiffs should not be permitted to subject Defendants to burdensome discovery that chills their and others’ First Amendment rights without specifying facts that would support their conclusory claims of falsity.

Notwithstanding Plaintiffs’ failure to satisfy Rule 8, every challenged statement is on its face not actionable for one or more reasons. Most are not statements “of and concerning” Plaintiffs. Most are not defamatory; that is, the statements would not tend to injure any of Plaintiffs’ reputations in the community. Several are actually or substantially true, as admitted in the Complaint. And others are nonactionable opinions, as evidenced by the literary journalism format of the Article and the overall context, and moreover such opinions are predicated on facts disclosed in the Article, and are therefore fair comment protected by the First Amendment....

In response Biss filed what strikes me as one of the weakest opposition motions I've seen. It's hand-wavey and misleading, but this post is long enough and I don't even need to dig into why, because, as first noted by Newsweek, Judge CJ Williams has already sided with Hearst, at least in following their "at a minimum" request that the judge make Biss and the Nunes family actually detail how the statements are false.

As you can see, Judge Williams is not convinced by Biss's hand-waving:

Defendants argue that plaintiffs’ complaint fails to identify “what aspect(s) of each statement is supposedly false and defamatory, and . . . what Plaintiffs allege the truth of the matter to be.”... Plaintiffs contend that it is enough for the complaint to simply allege that the statements are false, and defendants can seek the factual details they want through discovery.... As a preliminary matter, the Court finds that plaintiffs must allege facts that, if proven, would show the statements to be false.... It is not enough for plaintiffs to list a number of statements and generally declare them to be false without alleging facts which, if proven, would show them to be false.

The Court then points out that all the performative hyperbole so common in Biss defamation complaints isn't going to cut it:

The remainder of plaintiffs’ complaint is bereft of any factual allegations pertaining to the truth or falsity of the challenged statements. Rather, the remainder of plaintiffs’ complaint is conclusory in nature. Paragraph 15 includes the conclusory allegation that the article contains a “defamatory gist and false implication[s].” Paragraphs 16 through 18 allege defendants republished the article. Paragraph 19 asserts that the article was “knowingly and intentionally flawed,” that “Lizza came to Sibley with a preconceived storyline,” and that he “fabricated a ‘secret’ where none existed,” citing as authority the Federalist’s website that makes a personal attack on Lizza. Under the heading Count I – Defamation, paragraphs 21 through 29 make assertions of defamation, republication and damages, but do not contain any factual allegations pertaining to the truth or falsity of the statements.

As for the actual statements in the article that Biss did call out, the court points out that there's not nearly enough there for a defamation claim. I won't go through each and every one, but the judge's analysis of the very first alleged defamatory statement should give you the gist of all the rest:

1. “So why did [Devin Nunes’] parents and brother cover their tracks after quietly moving the farm to Iowa? Are they hiding something politically explosive? On the ground in Iowa, Esquire searched for the truth—and discovered a lot of paranoia and hypocrisy”.

The first two sentences in this bullet point are questions. Arguably, the first question asserts facts: Devin Nunes’ parents and brother covered their tracks and moved their farm to Iowa. The word “quietly” is an adjective arguably reflecting an opinion. The words “covered their tracks” could be an opinion, but implies facts, that is that the Nunes performed some act to conceal the move. The third sentence appears generally to assert an opinion: Esquire searched for the truth and discovered a lot of paranoia and hypocrisy. Whether Esquire searched for the truth seems a matter of opinion, as is whether Esquire discovered facts that led it or anyone else to conclude that there was some or a lot of something considered to be paranoia or hypocrisy. Plaintiffs’ complaint does not make it clear what it is in this bullet point they allege is false. In theory, plaintiffs could allege facts that would prove the first sentence to be false. That is, plaintiffs could allege that they did not move their farm to Iowa. Plaintiffs’ complaint does not make it clear at all which of these statements plaintiffs are alleging are false. Plaintiffs could be asserting that it is false that the Nunes concealed any move, or they could be asserting that Esquire did not discover paranoia or hypocrisy. Nor does the complaint allege facts showing that any of the statements are false or why they are false. How defendants’ answer the complaint or the defense they assert to the defamation claim turns on what it is that plaintiffs allege is false in this bullet point.

In other words, this is a classic SLAPP suit in which just quoting statements you dislike and declaring them defamatory is not nearly enough to plead a defamation claim. And each of the sixteen different statements laid out in the complaint gets similar treatment, leading to the following summary:

The tedious and laborious exercise of dissecting each of the sixteen bullet points illustrates the deficiency of plaintiffs’ complaint. The complaint is not at all clear as to which facts asserted in these bullet points plaintiffs allege are actually false. Knowing which assertions plaintiffs allege are false is necessary for defendants to be able to answer the complaint and assert a defense. As the Court pointed out as it addressed each bullet point, some of the alleged facts may be defended as opinions or conclusions, others may be defended as not concerning plaintiffs, and still others may be defended as being true. Without knowing which of the facts plaintiffs allege are actually false, defendants are left not knowing how to answer the complaint. The exercise also shows that the complaint fails to allege facts which, if proven, would show that any of the alleged facts are false.

However, rather than dismiss the complaint outright for a failure to state a claim, the Judge is willing to give Biss one more chance, though you can sense the doubt that anything will come of it:

Plaintiffs are granted 14 days to file an amended complaint specifically identifying the facts in the contested article they allege are false, and to allege facts which, if proven, would show those facts to be false. If plaintiffs do not file an amended complaint, the Court may dismiss this matter without further action by defendants.

It seems likely that Biss will file such an amended complaint. It seems unlikely that it will succeed in pleading defamation to a level that won't then be dismissed for failure to state a claim. But, of course, if the intention is just to SLAPP, then the goal is to just drag this out as long as possible anyway.

Once again, this is why Iowa needs an anti-SLAPP law, and we need a federal anti-SLAPP law as well.

Filed Under: anthony nunes, anti-slapp, california, defamation, devin nunes, iowa, ryan lizza, slapp, statements of fact, steven biss
Companies: hearst, nustar farms