The real costs of Devin Nunes’s defamation lawsuit

Congressman Devin Nunes, via Gage Skidmore/Flickr

Congressman Devin Nunes’s latest lawsuit against people he thinks are making him look bad—this one, filed April 8, seeks $150 million in damages from The McClatchy Company and anti-Trump Republican strategist Liz Mair—appears unlikely to succeed and, in the eyes of media-law experts, is virtually free of merit. That makes it a lot like the California Republican’s first such suit, a $250 million defamation claim filed last month against Mair, Twitter, and parody Twitter accounts claiming to be “Devin Nunes’s Mom” and “Devin Nunes’s Cow.”

Just because the new lawsuit might be laughed out of court doesn’t make it a laughing matter for McClatchy or Nunes’s other targets. Fighting a defamation suit, however baseless, against a prominent, deep-pocketed plaintiff like a congressman can burn up plenty of time, attention, and money.

And that might be the point.

“It seems to me to be stunt litigation,” Ken White, a former federal prosecutor who’s now a criminal defense and First Amendment lawyer in Los Angeles, says. “Increasingly, people seem to sue people for the publicity over the litigation, and the legal outcomes are secondary to the outcome of thrilling your base and whipping them up with the fact that you’re taking on the enemy.”

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Nunes’s enemies in this case include the Fresno Bee, a McClatchy-owned paper that covers his district in California’s Central Valley. Last year, the Bee published a story about a San Francisco Bay cruise in 2015 on the SS Alpha Omega, a yacht owned by a nonprofit affiliate of Alpha Omega Winery, of which Nunes is a part owner.

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According to a lawsuit filed by a winery employee who was on the cruise, the 25 men on board drank to excess, snorted cocaine openly, and paid to have sex with women, some of whom appeared to be underage. The winery settled the suit out of court. Nunes was not on the yacht or named in the lawsuit.

The Bee’s story about the cruise is the nexus of Nunes’s lawsuit. The suit claims the story was part of “McClatchy’s scheme to defame Nunes and injure his reputation,” by “implying that he was involved with cocaine and underage prostitutes.”

Nunes cites what he claims are factual errors and “stealth edits” made after the story’s initial publication. Nunes also claims McClatchy and reporter Mackenzie Mays conspired with Mair to defame him, because Mair was quoted in McClatchy articles and tweeted links to McClatchy articles, and because Mays had liked or retweeted Mair’s tweets about Nunes.

In a statement issued April 9, the Fresno Bee and McClatchy stood by their reporting and called the lawsuit “a baseless attack on local journalism and a free press.” Nunes declined to be interviewed for the Bee’s article and has never asked for a correction in the 10 months since it was published, the company said.

Nunes’s congressional office did not respond to requests for comment, nor did his attorney in the defamation cases, Steven Biss of Charlottesville, Virginia.

The bar that Nunes and Biss must meet to prove defamation is very high. The Bee’s statements must be provably false and cause actual harm to Nunes’s reputation, but that by itself isn’t enough. Because Nunes is a public figure, he must show the Bee acted with “actual malice”—that the editors and reporters knew the information they published was false or acted with “reckless disregard” for whether it was true.

On top of that, Nunes must show the story is false when taken in context and in its entirety. “If the gist of something is true, it doesn’t matter if a couple of non-material details are wrong,” White says. “This story puts out there that he’s involved in this company; that’s undisputed. This company has this yacht; this yacht got used for these purposes. There’s no suggestion that he was there.” White, who co-hosts the NPR show “All The President’s Lawyers,” described Nunes’ Twitter lawsuit as “unusually buffoonish” on a previous episode, and called the McClatchy lawsuit “even worse.”

Apart from factual and legal deficiencies and prose that White says “reads more like a YouTube comment than a professional document,” there are problems with Nunes’s choice of venue. The case was filed in Albemarle County, Virginia. Mair is based in Virginia, but McClatchy doesn’t own any papers there. It would make more sense, White says, to hear the case in California, where McClatchy and the Fresno Bee are headquartered, where Nunes’s district is located, and where the debauched yacht party took place.

The lawsuit states Virginia is an appropriate venue because McClatchy is an investor in Moonlighting, a tech startup based in Charlottesville, and because “McClatchy publishes hundreds of stories a year on matters of unique concern to Virginians.”

White suspects the real reason Nunes and his lawyer chose Virginia is because it does not have an anti-SLAPP law as strong as California’s. (SLAPP stands for Strategic Lawsuit Against Public Participation.) Under his home state’s anti-SLAPP law, Nunes would be at greater risk of being made to pay McClatchy’s and Mair’s legal fees if his suit is dismissed.

The cost of defending a media company against such a lawsuit could easily run into the hundreds of thousands of dollars, Michael Overing, an adjunct professor of media law at the University of Southern California Annenberg School for Communication and Journalism, says.

“The fact that Trump’s attorneys were awarded nearly $300,000 against Stormy Daniels tells you minimally what both sides could expect to pay,” Overing writes in an email to CJR, referring to the attorney’s fees Daniels was ordered to pay when her defamation lawsuit against Trump was dismissed last year. Cases with less publicity are cheaper, but when a president or congressman is involved, the stakes are higher and the billable hours tend to creep up.

However, media companies are insured against libel and defamation lawsuits, so McClatchy almost certainly won’t get a six-figure legal bill. (McClatchy, which provided CJR with a copy of their April 9 statement concerning the lawsuit, did not respond to a follow-up.) And the Nunes suit is unlikely to succeed; Overing sees a relatively straight path to a dismissal. The real cost to McClatchy would be the nuisance of defending itself and “having to respond publicly to dumb stuff,” Overing says.

This lawsuit might go away, but the idea of tying a news organization up in litigation when you don’t like its reporting doesn’t appear to be going anywhere. Even though the law is typically on their side, journalists and publishers are spending more time responding publicly to dumb stuff.

“It’s just the sheer weight of these things happening all the time,” White says. “It has an effect on people’s willingness to speak and to write.”

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Tony Biasotti is a freelance writer in Ventura, California. Find him on Twitter @tonybiasotti.