• by Wendy Davis  @wendyndavis, September 15, 2021

A federal appellate court on Wednesday revived Rep. Devin Nunes' claim that he was defamed by journalist Ryan Lizza in 2019, when he tweeted out a link to a year-old Esquire article he authored.  

While the court said Nunes couldn't proceed with allegations related to the initial publication of the article, the ruling allows him to sue over Lizza's "republication" of the piece on Twitter.

The dispute stemmed from Lizza's September 2018 Esquire article, titled “Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret.”

In September of 2019, Nunes sued Hearst Magazines and Lizza over the article, alleging it was defamatory for several reasons, including that it falsely implied that Nunes conspired with his family to cover up the use of undocumented labor at the family's farm.

Two months after Nunes sued, Lizza posted a link to the article on Twitter, along with the following statement: “I noticed that Devin Nunes is in the news. If you’re interested in a strange tale about Nunes, small-town Iowa, the complexities of immigration policy, a few car chases, and lots of cows, I’ve got a story for you.”

Nunes subsequently amended his lawsuit to include a claim that Lizza “brazenly and gratuitously republished" the article to his Twitter followers. 

A trial judge dismissed Nunes' defamation claims against Hearst and Lizza last year, ruling that statements in the article didn't meet the standards for defamation for a variety of reasons including that Nunes' allegations, even if true, wouldn't prove “actual malice.”

To prove actual malice, Nunes would have had to show that Lizza and Hearst knew the article contained false statements (or implications), or recklessly disregarded that possibility.

A three-judge panel of the 8th Circuit Court of Appeals agreed that Nunes couldn't proceed against Hearst, but said Nunes could attempt to prove that he was defamed when Lizza tweeted a link to the article two months after Nunes filed suit.

“The complaint here adequately alleges that Lizza intended to reach and actually reached a new audience by publishing a tweet about Nunes and a link to the article,” Circuit Judge Steven Colloton wrote in a 15-page opinion. 

“In November 2019, Lizza was on notice of the article’s alleged defamatory implication by virtue of this lawsuit....Under those circumstances, the complaint sufficiently alleges that Lizza republished the article after he knew that the Congressman denied knowledge of undocumented labor on the farm or participation in any conspiracy to hide it.”

The ruling appeared to surprise industry observers.

"It’s certainly a novel application of a couple of important libel doctrines, and a potentially troublesome one if the 8th Circuit’s ruling is allowed to stand," Chip Stewart, a professor at Texas Christian University, told Politico, where Lizza currently serves as Playbook co-author and chief Washington correspondent.