• by Wendy Davis , Staff Writer @wendyndavis, November 23, 2021

A federal appellate court on Tuesday rejected journalist Ryan Lizza's request to reconsider a recent ruling that revived Rep. Devin Nunes' defamation claim over a tweet.

The 8th Circuit Court of Appeals didn't give a reason for its refusal to reconsider the controversial decision, issued in September by a three-judge panel.

The dispute between Nunes (R-California) and the journalist stemmed from Lizza's September 2018 Esquire article, “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 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 -- which was around 14 months after the article was published -- Lizza posted a link to the article on Twitter, along with the following statement: “I noticed that Devin Nunes is in the news. If so 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 later revised his complaint to include a claim that Lizza “brazenly and gratuitously republished" the original article to his Twitter followers. 

A trial judge dismissed Nunes' defamation claims 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.

Nunes then appealed to the 8th Circuit. A three-judge panel of that court 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.”

Last month, Lizza urged the 8th Circuit to reconsider that ruling, arguing that it “broke from all authority.”

“The panel incorrectly held that the mere filing of a lawsuit sufficed to plausibly create actual malice supporting a public official defamation case,” Lizza's attorneys wrote in their request for a new hearing. “If the panel’s decision stands, then once a public official denies reported facts or surmised implications (even obliquely or implicitly), a publisher must never again reference the challenged article, on pain of substantial cost and legal burden.”

Lizza's attorneys also said other judges throughout the country have ruled that linking to a previously published story isn't a “republication” of the original.

Dozens of outside news organizations including Buzzfeed, Fox News Network, Gannett, Politico, and The New York Times Company filed a proposed friend-of-the-court brief in support of Lizza's request.

The news organizations argued that the panel decision “could create havoc” for all content distributors.

“In disseminating the news, journalists rely on a wide and long-standing judicial consensus that providing a reader with a hyperlink to an article does not republish it for purposes of a libel claim,” the organizations wrote. “They also rely on long-settled precedent holding that receiving a prepublication denial from the subject of a critical report does not, on its own, establish actual malice in publishing the report.”

The 8th Circuit refused to accept the friend-of-the-court brief, because doing so would force at least one judge to refrain from considering the matter. The court didn't specify which of the news organizations signing the friend-of-the-court brief created the apparent conflict of interest.