Devin Nunes Sues Again; He REALLY Doesn't Want You To Read This Article About His Family's Cow Farm In Iowa

from the really,-don't-read-it dept

Devin Nunes is on quite a roll with stifling free speech. The Congressman, who once co-sponsored a bill discouraging frivolous lawsuits and also voted for a House Amendment saying that free speech should be protected, has been filing a whole bunch of lawsuits that appear to serve no purpose other than to stifle free speech -- mainly free speech that criticizes Devin Nunes. Back when he filed the first of these suits (against satirical Twitter accounts, among others), we noted that he seemed particularly mad about an article by Ryan Lizza in Esquire trying to track down details about the Nunes' family's dairy farm, which is not in California where Nunes' Congressional district is, but in Iowa. Lizza noticed that Nunes appeared to go to great lengths to not have the public realize that his family's dairy farm (which is a big part of his bio) up and left California. The article is entitled Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret and it is absolutely worth reading, in part because Devin Nunes really doesn't want you to read it. But also, in part, because it had paragraphs like this:

Nunes grew up in a family of dairy farmers in Tulare, California, and as long as he has been in politics, his family dairy has been central to his identity and a feature of every major political profile written about him. A March story in National Review is emblematic. It describes how Nunes’s family emigrated from the Azores in Portugal to California’s Central Valley, “a fertile, sunny Eden,” and how the family “worked and saved enough money to buy a 640-acre farm outside Tulare.” The soil of the Central Valley is depicted as almost sacred in these articles. National Review quotes a 1912 Portuguese immigrant farmer who wrote that when he grabs a clump of dirt, “I feel as if I had just shaken hands with all my ancestors.” As recently as July 27, the lead of a Wall Street Journal editorial-page piece about Nunes, which featured a Tulare dateline, emphasized the dairy: “It’s 105 degrees as I stand with Rep. Devin Nunes on his family’s dairy farm.” Last year, Nunes noted in an interview with the Daily Beast—headline: “The Dairy Farmer Overseeing U. S. Spies and the Russia Hack Investigation”—“I’m pretty simple. I like agriculture.” The Daily Beast noted, “The cows are not far from his mind. He keeps in regular contact with his brother and father about their dairy farm.”

So 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. Devin; his brother, Anthony III; and his parents, Anthony Jr. and Toni Dian, sold their California farmland in 2006. Anthony Jr. and Toni Dian, who has also been the treasurer of every one of Devin’s campaigns since 2001, used their cash from the sale to buy a dairy eighteen hundred miles away in Sibley, a small town in northwest Iowa where they—as well as Anthony III, Devin’s only sibling, and his wife, Lori—have lived since 2007. Devin’s uncle Gerald still owns a dairy back in Tulare, which is presumably where The Wall Street Journal’s reporter talked to Devin, and Devin is an investor in a Napa Valley winery, Alpha Omega, but his immediate family’s farm—as well as his family—is long gone.

Much of the article actually focuses on the fact that many of the farms in and around Sibley, Iowa employ undocumented workers, which seems just a wee bit hypocritical considering the strong support in the area for a President who is desperately trying to kick undocumented people out of the country, and Nunes himself, who has been a stalwart support of the Trump agenda. Lizza spends a lot of time trying to track down if the Nunes farm employs undocumented workers, and is followed around town by various Nunes family members. Other strange things happen as well, including the local newspaper suddenly disappearing a nearly decade old story after Lizza showed up in town (in part because he'd read that now gone article).

As I noted above, the original lawsuit mentions this article in passing, and the fact that some people were discussing it on Twitter, but now he's actually sued Lizza and Esquire's publisher, Hearst Magazines for $75 million. The lawsuit is filed in federal court in Iowa, with the same Virginia-based lawyer that Nunes has used in all of the other lawsuits he's been filing against journalists and critics lately, and with local representation from lawyer Joseph Feller in Sibley, Iowa, whose legal practice seems to focus mostly on estate planning and agriculture law -- not defamation.

Notably, Iowa has no anti-SLAPP law.

Also notably, none of the parties reside in or near Iowa. Sure, the article is about Iowa. And Nunes' family (as we now know) lives in Iowa. But they're not the plaintiffs. There is some argument that if there were defamation (and that seems unlikely) the "harm" to Nunes' reputation would happen in Iowa because of this article, but it seems pretty damn clear from the article, at least, that at least most of the Iowans profiled are on Nunes' side. It seems like there's a much stronger case that if (again, which is unlikely) there is any actual reputational harm, it's to those outside of Iowa. Such as Nunes' constituents. In California.

But, notably, California has a strong anti-SLAPP law.

As for the filing itself, well, it's about as ridiculous as you can imagine. Very little in Lizza's Esquire piece actually talks about Devin Nunes. It focuses much more on his family and the town where his family lives. As with past Nunes lawsuits, it seems more performative for a, well, certain audience, than for actually convincing a judge. In the very first line it calls Lizza "a left-wing political journalist, well-known for his extreme bias towards Plaintiff," highlights that Lizza lost a job at the New Yorker in a #MeToo situation, and uses that to at least, bizarrely, imply that Lizza's trip to Sibley was to stalk female members of Nunes' family.

Lizza was a fixture of the main stream media until December 2017, when his then-employer – The New Yorker magazine – summarily severed all ties and publicly terminated Lizza because of “improper sexual conduct”.... Lizza’s name had been included in the “Shitty Media Men” list that circulated in response to allegations published about Harvey Weinstein.... In June 2018, Esquire announced that it had hired Lizza as the magazine’s chief political correspondent.... Lizza only lasted a short time at Esquire. During his brief tenure, however, he physically traveled to Sibley, Iowa, where he lurked around Plaintiff’s grammar-school aged nieces and stalked members of Plaintiff’s family, reducing Plaintiff’s sister-in-law to tears.

Later in the complaint, it literally says:

... while he was in Sibley, Lizza stalked Plaintiff’s grammar-school aged nieces, behaved like a sex offender or pedophile cruising the local neighborhood for victims, frightened a family member to tears, and exploited a grieving mother.

Not that you can claim defamation based on what's filed in a lawsuit, but those suggestions seem to toe much closer to the defamation line than anything in Lizza's article.

It takes a while for the complaint to actually get around to listing what statements it believes are defamatory (spending a bunch of time pretending that each time someone linked to Lizza's piece on Twitter it meant the story was being "republished" which is... uh... not how it works). But here's what the complaint claims is defamatory:

The Lizza Hit Piece falsely accuses Plaintiff, the “head of the House Intelligence Committee and one of President Trump’s biggest defenders”, of being involved in covering-up a “secret”, to wit:

• “Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret”.
• “So why did [Plaintiff’s] parents and brother cover their tracks after quietly moving the farm to Iowa? Are they hiding something politically explosive?”
• “Devin Nunes has a secret”.
• “Which brings us back to Nunes’s secret”.
• “So 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”.
• “There’s nothing particularly strange about a congressman’s family moving. But what is strange is that the family has apparently tried to conceal the move from the public—for more than a decade”.
• “Why would the Nuneses, Steve King, and an obscure dairy publication all conspire to hide the fact that the congressman’s family sold its farm and moved to Iowa?”
• “On the other hand, [Plaintiff] and his parents seemed to have concealed basic facts about the family’s move to Iowa. It was suspicious”.

Later on, the complaint lists out some other "false and defamatory statements:"

a. “Devin Nunes has a secret”.

b. Plaintiff used his position as Chairman of the House Intelligence Committee as a “battering ram to discredit the Russia investigation and protect Donald Trump at all costs, even if it means shredding his own reputation and the independence of the historically nonpartisan committee in the process”. c. Plaintiff “used the Intelligence Committee to spin a baroque theory about alleged surveillance of the Trump campaign that began with a made-up Trump tweet about how ‘Obama had my ‘wires tapped’ in Trump Tower’”.

d. “Devin; his brother, Anthony III; and his parents, Anthony Jr. and Toni Dian, sold their California farmland in 2006. Anthony Jr. and Toni Dian, who has also been the treasurer of every one of Devin’s campaigns since 2001, used their cash from the sale to buy a dairy eighteen hundred miles away in Sibley, a small town in northwest Iowa where they—as well as Anthony III, Devin’s only sibling, and his wife, Lori—have lived since 2007 … [W]hat is strange is that the family has apparently tried to conceal the move from the public—for more than a decade”.

e. “Why would the Nuneses, Steve King, and an obscure dairy publication all conspire to hide the fact that the congressman’s family sold its farm and moved to Iowa?”

f. “Devin Nunes was the public figure at the heart of this, and he had no financial interest in his parents’ Iowa dairy operation. On the other hand, he and his parents seemed to have concealed basic facts about the family’s move to Iowa. It was suspicious. And his mom, who co-owns the Sibley dairy, is also the treasurer of his campaign”.

g. “I laid out the facts I had uncovered in Sibley, including the intimidation of sources and the Devin Nunes angle, and asked him for advice. ‘I’d tell that story,’ he said. He paused and added, ‘We’re a sanctuary church, if you need a place to stay. You’re safe here!’”

h. “Is it possible the Nuneses have nothing to be seriously concerned about? Of course, but I never got the chance to ask because Anthony Jr. and Representative Nunes did not respond to numerous requests for interviews.”

At least here there are some statements of fact -- but it's difficult to see how any of them are even remotely defamatory. Unless Nunes' family didn't sell their farm and didn't move to Iowa, but so far no one has denied that. Statement (e) is a question and is about Steve King and "an obscure dairy publication," not Nunes. How is that defamatory towards Nunes? Statement (g) is even less about Nunes because it's just a quote from someone else offering to protect Lizza! And is Nunes really claiming that saying he did not respond to numerous requests for interviews is defamatory? Because... that's not how it works.

Let's be clear: none of that comes anywhere even remotely in the same vicinity as a legitimate defamation claim. It all seems to center around the question of whether or not Devin Nunes has a "secret." And is he really going to argue in court that he has no secrets? And arguing over whether or not he's kept his family moving their farm from California to Iowa a secret is not defamation either. It is broadly either opinion, opinion based on disclosed facts, or substantially true. Words like "conspire" are, at worst, rhetorical hyperbole.

In other words, this is not defamatory. This is yet another SLAPP suit by Devin Nunes, who wants to claim to be a free speech supporter while suing multiple different critics over their free speech. What a hypocrite. Yet, here we are, and because Iowa has no anti-SLAPP statute, no matter what, this is going to cost at least Hearst (and possibly Lizza) a bunch of time and money.

This is why every state needs an anti-SLAPP law and why we need a federal anti-SLAPP law. If Nunes keeps filing these bullshit lawsuits against his critics, don't be surprised if other politicians decide that they too want to scare off critics with burdensome, if frivolous, lawsuits like this.

Filed Under: 1st amendment, anti-slapp, criticism, defamation, devin nunes, farms, free speech, iowa, ryan lizza, slapp
Companies: hearst magazines

Anti-Whistleblower 'Ag-Gag' Law Ruled Unconstitutional

from the go-free-speech! dept

We've written a few times about the ridiculousness of so-called ag-gag laws, that prohibit photographing or videotaping farms (sometimes even from public land). These laws were pushed for heavily by large industrial farmers who were sick of animal rights advocates getting images and videos of the conditions in farms and slaughterhouses that were questionable. Whatever you might think of the practices of those advocates, banning taking photographs or videos seemed like a really questionable move -- which would have a chilling effect on whistleblowers of all kinds. It seemed like it had to be unconstitutional -- and a court in Idaho agrees, declaring that state's law unconstitutional.

The court does not mince words, noting that under this law, Upton Sinclair's The Jungle would likely have been illegal:

The story of Upton Sinclair provides a clear illustration of how the First Amendment is implicated by the statute. Sinclair, in order to gather material for his novel, The Jungle, misrepresented his identity so he could get a job at a meat-packing plant in Chicago. William A. Bloodworth, Jr., UPTON SINCLAIR 45–48 (1977). Sinclair’s novel, a devastating expose of the meat-packing industry that revealed the intolerable labor conditions and unsanitary working conditions in the Chicago stockyards in the early 20th century, “sparked an uproar” and led to the passage of the Federal Meat Inspection Act, as well as the Pure Food and Drug Act.... Today, however, Upton Sinclair’s conduct would expose him to criminal prosecution under § 18-7042.

The State responds that § 18-7042 is not designed to suppress speech critical of certain agricultural operations but instead is intended to protect private property and the privacy of agricultural facility owners. But, as the story of Upton Sinclair illustrates, an agricultural facility’s operations that affect food and worker safety are not exclusively a private matter. Food and worker safety are matters of public concern. Moreover, laws against trespass, fraud, theft, and defamation already exist. These types of laws serve the property and privacy interests the State professes to protect through the passage of § 18- 7042, but without infringing on free speech rights.

With this background and context, the Court finds that § 18-7042 violates the First Amendment right to free speech. In addition, the Court finds that § 18-7042 violates the Equal Protection Clause because it was motivated in substantial part by animus towards animal welfare groups, and because it impinges on free speech, a fundamental right.

The ruling also highlights how the politicians behind this bill barely hid their desire to shut up those darn animal rights activists, who they sometimes referred to as "terrorists" in explaining why this bill was necessary.

A review of the legislative record in search of a legitimate purpose does nothing to help the State’s cause.... The overwhelming evidence gleaned from the legislative history indicates that § 18-7042 was intended to silence animal welfare activists, or other whistleblowers, who seek to publish speech critical of the agricultural production industry. Many legislators made their intent crystal clear by comparing animal rights activists to terrorists, persecutors, vigilantes, blackmailers, and invading marauders who swarm into foreign territory and destroy crops to starve foes into submission. Other legislators accused animal rights groups of being extreme activists who contrive issues solely to bring in donations or to purposely defame agricultural facilities.

As the Supreme Court has repeatedly said, “a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest if equal protection of the laws is to mean anything.” ... As a result, a purpose to discriminate and silence animal welfare groups in an effort to protect a powerful industry cannot justify the passage of § 18-7042.

It also points out that, for all the talk of animal rights advocates "misrepresenting" things on farms, there's a perfectly good solution to that: counterspeech.

The State has not shown why counterspeech would not suffice to achieve its interest of protecting agricultural production facilities from interference by wrongful conduct.... If an undercover investigator “staged a video” at an agricultural production facility, as some Idaho legislators fear, ... not only could the facility owner sue the investigator for fraud or defamation, but the facility owner could launch its own public relations campaign to refute the video.

The remedy for misleading speech, or speech we do not like, is more speech, not enforced silence....

The court also laughs off the idea that the bill was narrowly tailored or that this particular law was necessary. In fact, the court points out ridiculous things that are illegal under the law:

Indeed, § 18-7042 not only restricts more speech than necessary, it poses a particularly serious threat to whistleblowers’ free speech rights. To convict a whistleblower under the statute, the State does not need to prove that the whistleblower entered a production facility under false pretenses or trespass. Thus, as discussed above, if a diligent and trusted longtime employee witnesses animal abuse or life-threatening safety violations and records it without authorization, the employee could face up to a year in jail and be forced to pay damages to agricultural production facility owner for “twice” the economic loss the owner suffers because of the employee’s whistleblowing activity, even if everything depicted on the video is true and accurate.... In other words, the statute circumvents long-established defamation law and whistleblowing statutes by punishing employees for publishing true and accurate recordings on matters of public concern. The expansive reach of this statute is hard to reconcile with basic speech, whistleblower, and press rights.

And finally, with all the questionable reasons for this bill to exist, one of the least commented on is the fact that this is clearly the state picking industries to give special protections to -- and the court doesn't even let that point slide:

Likewise, the State fails to provide a legitimate explanation for why agricultural production facilities deserve more protection from these crimes than other private businesses. The State argues that agricultural production facilities deserve more protection because agriculture plays such a central role in Idaho’s economy and culture and because animal production facilities are more often targets of undercover investigations. The State’s logic is perverse—in essence the State says that (1) powerful industries deserve more government protection than smaller industries, and (2) the more attention and criticism an industry draws, the more the government should protect that industry from negative publicity or other harms. Protecting the private interests of a powerful industry, which produces the public’s food supply, against public scrutiny is not a legitimate government interest.

Of course, there are still seven other states with ag-gag laws on the books, and hopefully they're about to go down as well. There is still a decent chance that the state will appeal and waste more taxpayer money defending an unconstitutional bill that spits on the First Amendment, but it's difficult to see how the courts could come to any conclusion different than the one here by Judge Lynn Winmill.

Filed Under: activists, ag gag, ag-gag, farms, first amendment, idaho, upton sinclair, whistleblowers

Using Drones To Soar Above 'Ag-Gag' Laws

from the we-have-the-technology dept

Back in March, we wrote about Idaho's new "ag-gag" law that made it illegal to expose animal cruelty on factory farms and slaughterhouses in that state. The post quoted a couple of stories by Will Potter on his "Green is the New Red" Web site. @AbbyMartin tweets that Potter now wants to expose factory farm horrors without breaking those ag-gag laws by using a Kickstarter project to fund aerial photography carried out by drones:

The latest trend is that the agriculture industry is even trying to ban photographs of farms taken from the air. It is unlikely that aerial photography can document animal abuse, but these industries are clearly concerned. So what are factory farms trying to hide? Will a drone allow us to see the scope of pollution caused by these industrial operations? I'm going to find out...

As Potter notes, it's not clear what evidence of animal abuse a drone will be able to gather, but it's both an interesting attempt to circumvent ag-gag laws that seem to have no rationale other than covering up abuses, and another example of drones being used in innovative -- and peaceful -- ways.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: ag gag, drones, farms, journalism, reporting, will potter

States Continue To Make Photographing Or Taping Farms A Crime

from the because-farmers dept

Over two years ago, we wrote about an absolutely insane proposal in Florida that sought to make it a felony to photograph farms without permission. The bill tried to position it as "protecting farm intellectual property," but everyone knew the real reason: farmers were upset about animal rights activists photographing and videotaping animal cruelty and revealing it to the world. We hadn't heard much more about that until just recently. A month and a half ago, On the Media had a segment about how these kinds of bills were showing up in more states, and now the NY Times has done a big article on how these "ag-gag" laws are being pushed by lobbyists heavily influenced by big farm groups.

It appears that the positioning of these bills has moved away from "protecting farmer IP" and over to claiming that animal rights activists are involved in terrorism for exposing animal cruelty. Now, we certainly believe that some animal rights groups go way overboard in their campaigns, though they often just make themselves look silly when they do so. But these laws just seem crazy, and a clear restriction on First Amendment rights.

But a dozen or so state legislatures have had a different reaction: They proposed or enacted bills that would make it illegal to covertly videotape livestock farms, or apply for a job at one without disclosing ties to animal rights groups. They have also drafted measures to require such videos to be given to the authorities almost immediately, which activists say would thwart any meaningful undercover investigation of large factory farms.

ALEC (the American Legislative Exchange Council), a group famous for writing legislation for members of Congress, has a "draft bill" along these lines, which argues that the effort is to prevent attempts to use images and video to "defame the facility or its owner." That's insulting. First off, we already have defamation laws. If farm owners are defamed, let them use those laws. Second, truth is an absolute defense to defamation, and if they're taking a picture that accurately represents what's going on, it's difficult to see how that could, in any way, be any form of defamation. Third, and most importantly, just because one might use some tactic to defame someone (even if it's highly unlikely) that's no excuse, at all, for seeking to ban the activity entirely.

In the end, it's legal efforts like this that make people especially cynical about the political process. It's pretty clear that there's no good reason for such laws. Rather, the entire purpose is to protect some farmers who don't want their practices exposed.

Filed Under: activists, ag gag, farms, free speech, photographs, videos

New Legislation 'To Protect Farmer IP' Would Make It A Felony To Photograph Farms

from the oh-come-on dept

An awful lot of you sent in this story about a proposed law in Florida that could put people in jail for taking a photograph of a farm without permission. Seriously. Not surprisingly, the "excuse" for this is that it is "needed to protect the property rights of farmers and the "intellectual property" involving farm operations." I'm not kidding. The bill was introduced by Florida State Senator Jim Norman from Tampa. It's apparently targeted at animal rights activists, who have been known to photograph questionable conditions of animals on farms. In other words, it has nothing to do with "protecting intellectual property." It's to avoid criticism for treating animals poorly. And, of course, if animal activists are trespassing to get these photos, there are already laws against that. But this is what you get in this kind of society, where people seem to project the idea that anything can be redefined as "property" and locked up -- people use "intellectual property" as an excuse for simply ridiculous legislative proposals such as this one. Even if such a law passes, it won't take long for it to be declared unconstitutional, but it could waste Florida taxpayer money to fight this in court.

Filed Under: farms, florida, intellectual property, photographs