{"id":21508,"date":"2022-12-07T00:17:19","date_gmt":"2022-12-07T00:17:19","guid":{"rendered":"https:\/\/mailinvest.blog\/index.php\/2022\/12\/07\/devin-nunes-gets-small-most-likely-temporary-victory-against-msnbc-while-also-suing-cnn-again\/"},"modified":"2022-12-07T00:17:19","modified_gmt":"2022-12-07T00:17:19","slug":"devin-nunes-gets-small-most-likely-temporary-victory-against-msnbc-while-also-suing-cnn-again","status":"publish","type":"post","link":"https:\/\/mailinvest.blog\/index.php\/2022\/12\/07\/devin-nunes-gets-small-most-likely-temporary-victory-against-msnbc-while-also-suing-cnn-again\/","title":{"rendered":"Devin Nunes Gets Small, Most Likely Temporary, Victory Against MSNBC, While Also Suing CNN Again"},"content":{"rendered":"

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<\/p>\n

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from the you-don’t-need-to-sue-them-all,-devin<\/i> dept<\/h3>\n

You might have seen some headlines <\/a>recently suggesting that former congressional representative and current flailing social media CEO (and serial suer<\/a> of the media) Devin Nunes had some sort of legal victory over Rachel Maddow and MSNBC. And he did get a very, very small victory while piling up more losses at the same time. Law & Crime (which consistently does excellent work) had a much more accurate headline noting that the court actually dismissed all but one claim<\/a> in his lawsuit. And you could actually go beyond that. There were three separate statements that were claimed to be defamatory, and two were dismissed outright, and the third actually consisted of three separate factual claims, two of which were also dismissed. So it was basically just one-third of one claim that survived.<\/p>\n

And, even that oversells the victory, because the court basically let the case move forward because<\/em> the one remaining statement of fact wasn\u2019t backed up by a source, even though MSNBC has one. But, the problem was that MSNBC didn\u2019t cite that source in Maddow\u2019s report. And, at this stage of the case, MSNBC can\u2019t bring in additional evidence like that. So, the case moves forward on one tiny part where Maddow\/MSNBC could potentially still prevail on a failure to show actual malice. And, even if actual malice was shown, Nunes would still have to show damages caused by this one statement, and, uh, how is he gonna do that? He still got his CEO gig.<\/p>\n

Meanwhile, a week and a half earlier, Nunes also sued CNN (again) and Jake Tapper<\/a>. Remember, Nunes just recently lost<\/a> another lawsuit against CNN, over a different defamation claim. But apparently he and his lawyer, Steven Biss, believe in a \u201cif at first you don\u2019t succeed, try, try again\u201d strategy. The lawsuit is pretty ridiculous, but we\u2019ll get there.<\/p>\n

First, let\u2019s go over the ruling in the MSNBC case<\/a>. I highly recommend reading the ruling, which is well written, and much more clearly (and concisely!) explained than many other rulings we see. I\u2019ll quote directly from it summarizing the key events at issue:<\/p>\n

\n


\nOn December 11, 2019, a package was delivered to the House Permanent Select
\nCommittee on Intelligence (\u201cIntelligence Committee\u201d or the \u201cCommittee\u201d), of which Nunes was
\nRanking Member. (2nd Am. Compl\u2019t \u00b6 13.) It was addressed to Nunes from Andriy Derkach
\nand was handled solely by Nunes\u2019 staff and delivered, unopened, to the offices of the FBI. (Id.)
\nThat same day, Nunes sent a letter to Attorney General William P. Barr advising him of the
\nreceipt of the package. (Id.)<\/em><\/p>\n

On July 29, 2020, the Intelligence Committee held an open business meeting. (Id.
\nat n.5.) During this meeting, Representative Sean Maloney asked Nunes two questions. (Id.)
\nFirst, Maloney asked if Nunes had received materials from Derkach. (Id.) Second, Maloney
\nasked if, in the event that Nunes had received materials, whether he was prepared to share them
\nwith the Committee. (Id.) When asked if he wished to respond to the questions, Nunes declined<\/p>\n<\/blockquote>\n

In early 2021, the National Intelligence Council then declassified a report that included some of these details, specifically around the packages being sent to Nunes and others. Maddow\u2019s report, in somewhat typical overstated fashion, covered this and made some statements about Nunes:<\/p>\n

\n


\nIn the March 18, 2021 broadcast of The Rachel Maddow Show, host Rachel
\nMaddow discussed the declassified DNI Report as part of a longer segment about Derkach,
\nRussian disinformation and election interference.1
\n(Id.) Maddow referred to the report and
\ndiscussed the package addressed to Nunes, as well as the interaction between Nunes and
\nMaloney at the Intelligence Committee meeting. (Id.) Maddow said that Nunes had accepted a
\npackage from Derkach and refused to answer questions about the package. (Id. \u00b6 2.) Maddow
\nalso said that Nunes refused to hand the package to the FBI. (Id.) <\/em><\/p>\n<\/blockquote>\n

Now, you\u2019ll probably immediately spot the problem. From all reports, Nunes\u2019s staff did immediately hand over the package to the FBI (and Nunes separately alerted to the Attorney General to it). So, that does seem like a false statement of fact, which could (in theory) be defamatory.<\/p>\n

Of course, this is a Nunes\/Biss production, so they overclaimed other stuff that they also said was defamatory:<\/p>\n

\n


\nThe Complaint alleges that three statements from a segment of the March 18,
\n2021 episode of The Rachel Maddow Show are false and defamatory. (2d Am. Compl\u2019t \u00b6 2.)
\nThe statements are as follows:<\/em><\/p>\n

Statement One: \u201cAndriy Derkach is sanctioned by the U.S. government as a
\nRussian agent. He is singled out by name by the Director of National Intelligence as someone
\nunder Vladimir Putin\u2019s direct purview who helped run this organization targeting our election
\nlast year. Congressman Nunes accepted a package from him. What was in it?\u201d<\/p>\n

Statement Two: \u201cCongressman Nunes has refused to answer questions about
\nwhat he received from Andriy Derkach. He has refused to show the contents of the package to
\nother members of the intelligence community. He has refused to hand it over to the FBI which is
\nwhat you should do if you get something from somebody who is sanctioned by the U.S. as a
\nRussian agent.\u201d<\/p>\n

Statement Three: \u201cStill, the Republicans have kept Mr. Nunes on as the top
\nRepublican on the intelligence committee. How does that stand? How does that stay a thing?\u201d<\/p>\n<\/blockquote>\n

So, right. Statement one is substantially true. Nunes tried to argue that it wasn\u2019t accurate to say he \u201caccepted\u201d the package, but the judge isn\u2019t having it.<\/p>\n

\n

In the Complaint, Nunes confirms that the package was both
\naddressed to him and received by his staff members. (2d Am. Compl\u2019t \u00b6 13.) His staff member
\ndelivered the package to the FBI. (Id.) And Nunes personally wrote to the Attorney General to
\nadvise him of the receipt of the package. (Id.) The statement that Nunes \u201caccepted\u201d a package
\nfrom Derkach compared with the actual truth as stated in Nunes\u2019s complaint would not have a
\ndifferent effect on the mind of a viewer. Therefore, Statement One is privileged against a
\ndefamation claim because, based on the Complaint\u2019s own allegations, it is substantially true.\n<\/p>\n<\/blockquote>\n

Statement three is not defamatory. I mean, what even is the false statement of fact in there?<\/p>\n

\n

Statement Three cannot be classified as actionable statements of fact or actionable
\nmixed opinion. When weighing the factors, the specific language does not have a precise
\nmeaning, is not capable of being proved or disproved, and when considering the context, the
\naverage viewer would not reasonably believe the statements to be based on undisclosed facts.
\nSee id. at 105. Considering the immediate context of the questions, of political commentary on a
\npolitical program, such statements and rhetorical questions would not be viewed by a reasonable
\nperson as expressing or implying facts about the plaintiff. The Court therefore concludes that
\nStatement Three is privileged as pure opinion and not actionable.\n<\/p>\n<\/blockquote>\n

That leaves statement two which the court breaks down into the three separate claims, find that two of them are also substantially true.<\/p>\n

\n

The first asserted fact, that Nunes \u201chas refused to answer questions about what
\nhe received from Andriy Derkach,\u201d is not actionable as defamation because it is substantially
\ntrue. As described in the Complaint itself, during the House Intelligence Committee meeting of
\nJuly 29, 2020, Nunes \u201cstated that he did not wish to respond\u201d to Maloney\u2019s questions both
\nbecause a response \u201crisked disclosing classified information\u201d and because the questions were a
\n\u201ccompletely out-of-order, coordinated stunt.\u201d (2d Am. Compl\u2019t \u00b6 13 n.5.) A comparison
\nbetween the complained-of language and the truth as described in Nunes\u2019s complaint would not
\nhave a different effect in the mind of a reasonable viewer. To the extent that Nunes asserts
\ndefamation based on the statement that he \u201chas refused to answer questions about what he
\nreceived from Andriy Derkach,\u201d the claim will be dismissed\n<\/p>\n<\/blockquote>\n

And, while Nunes argues that claiming he wouldn\u2019t share the contents with the \u201cintelligence community\u201d is false because it was referencing the House Intelligence Committee<\/em>, which is technically<\/em> not the intelligence \u201ccommunity\u201d (but rather its overseer), this slight misstatement by Maddow certainly doesn\u2019t rise to the level of defamation:<\/p>\n

\n

The Court concludes that a reasonable viewer encountering the statement would
\nnot understand the technical distinction between the government entities that formally comprise
\nthe intelligence committee and the Intelligence Committee that is tasked with supervising those
\nentities. The speaker also asserted that Nunes \u201crefused to show the contents of the package to
\nother members of the intelligence community.\u201d (2d Am Compl\u2019t \u00b6 2; emphasis added.) A
\nreasonable viewer would understand the speaker to be asserting that Nunes himself is personally
\na \u201cmember\u201d of the intelligence community and that the \u201cother members\u201d included his
\nCongressional colleagues. This description is consistent with the events of the Intelligence
\nCommittee proceeding. And while the Intelligence Committee is not technically part of the
\nintelligence community, it performs a formal oversight role, and minor inaccuracies are \u201cnot
\nserious enough to remove a party\u2019s reportage from the protection of Civil Rights Law \u00a774.\u201d
\nMisek-Falkoff, 300 A.D.2d at 216\n<\/p>\n<\/blockquote>\n

So, that\u2019s a lot of dismissed supposedly defamatory statements. All that leaves is the statement about not handing over the info to the FBI. Which, again, is false. But for it to be defamatory against a public figure, Nunes has to show actual malice, which (I will explain yet again) does not just mean that Maddow\/MSNBC \u201cdislike\u201d Nunes, but rather they knew that the info was false, or had strong evidence suggesting it was false. This is a high bar, and frankly, I have trouble believing that Nunes clears it. He claims that Maddow\/MSNBC knew it was false because there had been a Breitbart report<\/a> that quoted another congressional representative claiming that Nunes had in fact turned it over to the FBI.<\/p>\n

But that supposes that Maddow was familiar with the specifics of the Breitbart report (which is buried in the 18th paragraph). Seems difficult to argue that Maddow had knowledge of falsity based on that, but the court says, at this stage of the game it\u2019s enough to move to the next stage and not dismiss the claim.<\/p>\n

MSNBC argued that Maddow\u2019s report was based on a Politico story<\/a> that quotes an anonymous source saying that the package had not been handed over to the FBI. Notably, that Breitbart article is actually mostly about Republicans claiming that the Politico article in question was the result of a potentially illegal leak from the Democrats about this classified meeting. But, as the court notes, because Maddow didn\u2019t specifically cite the Politico report, it can\u2019t be used, at this stage, to argue against actual malice:<\/p>\n

\n


\nThis Politico article is not cited or referenced in the Complaint, nor is it cited or
\nreferenced in the segment. Because the article goes beyond the pleadings and the materials
\nintegral thereto, it is not properly considered on a motion to dismiss. Goel, 820 F.3d at 559. On
\nthis bare record, the Court declines to convert the motion to one for summary judgment. <\/em><\/p>\n<\/blockquote>\n

And, remember, the key difference between the motion to dismiss stage and the summary judgment stage is that with an MSJ, evidence can be submitted. So, this \u201cvictory\u201d may not last long at all. <\/p>\n

But, this should be a reminder to all journalists: when making statement of fact claims, cite your sources.<\/strong> Turns out it can be the difference between winning a motion to dismiss and a (much more costly) motion for summary judgment.<\/p>\n

Anyway, now let\u2019s move on to the Tapper\/CNN suit. It\u2019s\u2026 strange. It\u2019s about a segment Tapper did about the attack on Paul Pelosi, and the Republicans\u2019 response to the attack, which sometimes included spreading baseless conspiracy theories about it. Incredibly, the complaint lists five statements that it claims are defamatory, and ONLY ONE even mentions Nunes:<\/p>\n

\n


\n1 \u201cHe [referring to President Donald Trump], at least, did condemn the attack on Paul
\nPelosi, as did House Republican Leader Kevin McCarthy, as did Senate Minority
\nLeader Mitch McConnell\u201d<\/em><\/p>\n

2 \u201cBut you know what, far too many other Republicans and Conservative leaders are
\nout there instead spreading insane, offensive and false conspiracy theories, such as
\nthe complete and utter lie, the deranged smear that Paul Pelosi and the attacker, the
\nman who hit him in the head with a hammer, were in a sexual relationship\u201d<\/p>\n

3 \u201cIt\u2019s hard to fathom the kind of mind that hears of a tragedy, like what happened to
\n82 year-old Paul Pelosi, and decides to traffic in this filth. But, sadly, Donald
\nTrump Jr. is hardly alone. Former Republican Congressman and Chairman of the
\nHouse Intelligence Committee, Devin Nunes, who now runs Trump\u2019s social media
\ncompany, Truth Social, shared this Halloween image [link to truth] with the words,
\n\u2018at least this guy has his clothes on.\u2019 Nunes also reposted this meme [link to
\nretruth], using a poster for the gay romantic comedy Bros, twisting it into a smear
\nof Paul Pelosi. And, again, the man who tried to bash Paul Pelosi\u2019s head in with a
\nhammer. Words fail.\u201d<\/p>\n

4 \u201cWhat is wrong with these people?\u201d<\/p>\n

5 \u201cIn addition to being an inhuman and inhumane response to a tragedy, it\u2019s a lie \u2026
\nPelosi did not know the suspect.\u201d <\/p>\n<\/blockquote>\n

I mean, point one: I\u2019m impressed at the sheer chutzpah of arguing \u201cwhat is wrong with these people\u201d is somehow a defamatory statement of fact about Devin Nunes. I mean, Biss\u2019 lawsuits often have these nutty claims of how clear statements of opinion are defamatory, but this one is really up there on the list of most egregious.<\/p>\n

And, even the one statement that does mention Nunes, only includes a statement about what Nunes shared on Truth Social. As far as I can tell, Nunes does not deny sharing the material Tapper claims he shared. Instead, Nunes argues that the episode \u201cas a whole\u201d subjected him to ridicule through \u201cjuxtaposition and omission of material facts,\u201d but uh, dude, you still need to highlight actual false statements of fact, and the complaint does not get there.<\/p>\n

Honestly, this complaint is so bad that it seems like the kind of thing that could lead to sanctions. <\/p>\n

Meanwhile, it remains ironic that Nunes leads a social media site that claims to be all about \u201cfree speech\u201d while he repeatedly sues critics and commentators for their free speech. <\/p>\n