Almost three dozen news organizations including The New York Times
and The Wall Street Journa
l last week asked a circuit court to throw out a defamation lawsuit whose outcome could
expose them to incessant legal liabilities. They’re right to argue that tweeting a link to a story shouldn’t be considered “republication” for purposes of libel law.
The amicus brief,
whose signatories include news outlets ranging from Fox News to Vox
Media, was filed a month after a federal appeals court revived a libel suit against Hearst Magazine and reporter Ryan Lizza. The court ruled that he may have defamed Rep. Devin Nunes, R-Calif., by
tweeting an Esquire
story after the congressman had filed the lawsuit.
Nunes had sued Hearst and Lizza for defamation over a 2018 story, “Devin Nunes’s
Family Farm Is Hiding a Politically Explosive Secret,” about how the congressman’s family had moved its dairy farm from California to Iowa. The story cited unnamed sources who claimed the
farm relied on undocumented workers, belying the congressman’s hard line on immigration.
Nunes’ suit included claims the article committed “defamation by
implication” in presenting facts that hinted at the “politically explosive secret.”
A federal judge in northern Iowa last year dismissed the case, ruling the
article wasn’t defamatory and that Nunes hadn’t proved Esquire had showed "actual malice" by publishing false statements about a public figure.
appealed that ruling to the Eighth Circuit Court of Appeals
, which last month agreed with most of the district
court’s judgment and determined the article wasn’t defamatory. Yet the appeals court also said Lizza republished the story by tweeting a link to it, raising the issue in defamation law
about evidence of reckless disregard.
In their collective brief, the news organizations argue that “journalists rely on a wide and longstanding judicial consensus that
providing a reader with a hyperlink to an article does not republish it for purposes of a libel claim.”
The court’s decision to differ from prior rulings
“could significantly chill future reporting and commentary about public officials and public figures” and “drastically reduce the flow of information to the public.” The
chilling effect on journalism would be disastrous as public officials cite the ruling in frivolous lawsuits against news outlets.