Nunes’s SLAPP Suit Over Forgotten Esquire Farm Story Crashes (Again)

Defamation

from the stop-the-slapps dept

You may recall a few years back that then Rep. Devin Nunes went on a SLAPPtastic suing spree, filing a bunch of highly questionable defamation lawsuits against a variety of people, including someone pretending to be a cow owned by Nunes.

The lawsuits, generally, have not gone well. One of the dumber lawsuits was the one he filed in 2019 against Hearst Magazine (publisher of Esquire Magazine) and reporter Ryan Lizza, over a 2018 story that Nunes absolutely doesn’t want you to read about his family’s farm: Devin Nunes’s Family Farm Is Hiding A Politically Explosive Secret.

If Nunes had just left it alone, basically everyone would have forgotten about the article. Instead, because he sued over it (and then, later, got his family to sue over it as well, which was eventually merged into a single case), the story has been in the news for more than six years now, providing a textbook example of the Streisand Effect.

We’ve covered many of the ins-and-outs and absolute nuttiness associated with the case for years, which got new life in 2021 when the Eighth Circuit rejuvenated the case that had been otherwise dead in the water. The rejuvenation was short-lived, though, as the case was a clunker from the start. All it really did was waste a lot more time and money for everyone involved to get to this point underscoring the need for stronger anti-SLAPP protections.

Because now, the Eighth Circuit has upheld the lower court’s ruling that this case is back to being totally dead on arrival. There could be many reasons why, but the appeals court went with the basics. Nunes can’t show any actual damages from the article. And, because of the terrible handling of the case by his then lawyer, Steven Biss, Nunes was backed into a corner such that he had to show special damages:

The district court correctly concluded that Nunes is eligible, at most, to recover only special damages. Nunes failed to follow California’s notice and demand statute for the recovery of general and exemplary damages. The article was published on September 30, 2018. Nunes sent a demand to Lizza and Hearst almost a year later, and there is no showing that he first discovered the article within twenty days before the demand. See id. § 48a(a). Therefore, Nunes may not recover general or exemplary damages, and the case turns on whether he suffered special damages.

And, there is not just no evidence that he suffered special damages, there’s no evidence of damages at all:

Nunes prevailed in his re-election campaign of 2018 and thus has not shown damage to his ability to secure re-election. He also has not presented sufficient evidence that his ability to raise funds was diminished as a result of the article. While he claims that two to three dozen companies declined to give money to his campaign, he produced no evidence to support this assertion—not even the names of the alleged companies. Instead, the evidence showed that Nunes’s campaign funding steadily increased each election cycle. From 2014 to 2016, Nunes received over $2 million in funding. From 2016 to 2018, he accumulated nearly $13 million. And from 2018 to 2020, he collected over $26 million. Nunes therefore did not produce evidence of his diminished ability to raise campaign funds.

Nunes also failed to present sufficient evidence that the article impaired his prospects for employment. He states that he should have enjoyed more employment opportunities as a former Member of Congress with attendant experience. But general allegations of loss of prospective employment are insufficient to prove special damages. Pridonoff, 228 P.2d at 8. Nunes did not produce evidence that he sought any particular position or present evidence of employment opportunities that were available to other former Members of Congress who were similarly situated. See id. The only evidence regarding Nunes’s employment shows that after he retired from Congress, he became the chief executive officer of Trump Media & Technology Group, Corp., with a starting salary of $750,000. The job, Nunes admits, was secured “based on the strength of Congressman Nunes’s reputation.” Nunes thus did not produce evidence to support his allegation that he suffered economic loss as a result of the article.

These guys are always the sorest of winners. By becoming a very Trumpy culture warrior, he was able to massively increase his campaign funds and then secure a sweet salaried job running Trump’s laughably terrible social media platform. The article and its allegations (which aren’t even particularly shocking) didn’t seem to do one bit of damage to him. At the very least, he failed to convince the court of any damages. These kinds of lawsuits are often more about intimidation and chilling speech than any real harm.

As for the Nunes family, represented as “NuStar,” their part of the case was under Iowa defamation law, but they also failed to show any damage:

The NuStar plaintiffs argue that their business suffered economic harm after the article was published. They claim that one person stopped doing business with NuStar Farms as a result of the article. But the NuStar plaintiffs failed to produce evidence that the suggested business relationship existed, let alone that the other party discontinued the association. This bare assertion of lost business is insufficient to establish a cognizable injury.

To counter the claim of injury, Lizza and Hearst produced evidence that NuStar’s revenues and profits increased after the article’s publication. Lizza and Hearst also produced an expert who determined that the NuStar plaintiffs did not suffer lost profits or diminution of business value. The NuStar plaintiffs respond that other factors contributed to the increases in revenues and profits. Once Lizza and Hearst produced evidence to support their motion, however, the NuStar plaintiffs were required to set forth specific facts to establish a genuine dispute for trial. Fed. R. Civ. P. 56(c)(1). They failed to do so, and the record is insufficient to support a finding that the NuStar plaintiffs suffered economic harm.

You see, in court, you’re supposed to present actual evidence that goes beyond “waaah, the coastal elite reporter was, like, really, really mean!”

NuStar also tried to claim “reputational” damage since they couldn’t show economic damages. But, there, they failed to show that they had much of a reputation at all:

To prove injury to reputation, however, a plaintiff must show that the plaintiff had a particular reputation before the article and that people thought worse of the plaintiff after reading the article….

…. the NuStar plaintiffs did not produce evidence of a good reputation before the article was published. While they presented testimony and documents showing that unidentified callers and social media users read the article and thought ill of NuStar, they did not present evidence that the company or its leaders enjoyed any particular reputation before the article was published. Because they presented no evidence of a preexisting good reputation that could have been damaged by the article, the NuStar plaintiffs failed to create a genuine dispute for trial about whether they suffered a cognizable injury

Again, all of this just goes to show how SLAPPy the lawsuit was in the first place, and it’s why the Eighth Circuit’s earlier ruling was so frustrating. Courts should dump frivolous lawsuits quickly, before they drag on and drag down defendants in costly and time-intensive efforts. The appeals process here wasted years and untold sums, all over a meritless case that never should have gotten this far.

This is why (yet again) we need better anti-SLAPP laws in every state, along with a federal anti-SLAPP law. Such laws would get cases like this dismissed quickly and might have even shifted the fees, such that Nunes would be covering the defendants’ legal fees. Stronger anti-SLAPP protections are essential to prevent the weaponization of the courts to attack and silence journalists, critics, and really anyone exercising their First Amendment rights. Cases like this show the real-world damage caused by the lack of robust anti-SLAPP laws nationwide.

Filed Under: 8th circuit, anti-slapp, damages, defamation, devin nunes, ryan lizza, slapp suit
Companies: hearst