Nunes v. Lizza

• Decision Date: 15 September 2021
• Docket Number: No. 20-2710,20-2710
• Parties: Devin G. NUNES, Plaintiff - Appellant, v. Ryan LIZZA, Defendant - Appellee, Hearst Magazine Media, Inc., Defendant - Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

12 F.4th 890

Devin G. NUNES, Plaintiff - Appellant,

v.Ryan LIZZA, Defendant - Appellee,Hearst Magazine Media, Inc., Defendant - Appellee.

No. 20-2710

United States Court of Appeals, Eighth Circuit.

Submitted: April 14, 2021

Filed: September 15, 2021

Rehearing and Rehearing En Banc Denied November 23, 2021

Steven Scott Biss, Biss Law Office, Charlottesville, VA, Joseph M. Feller, Koopman & Kennedy, Sibley, IA, for Plaintiff-Appellant.

Nathaniel Scott Boyer, Jonathan R. Donnellan, Ravi V. Sitwala, Hearst Corporation, Office of General Counsel, New York, NY, Susan Patricia Elgin, Michael Giudicessi, Nicholas A. Klinefeldt, Faegre & Drinker, Des Moines, IA, for Defendant-Appellee.

Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.

COLLOTON, Circuit Judge.

Devin Nunes, a Member of Congress from California, appeals an order of the district court dismissing his complaint alleging defamation and conspiracy claims against Ryan Lizza and Hearst Magazine Media, Inc. The claims are based on an article published in Esquire magazine. Although we agree that there are insufficient allegations of express defamation, we conclude that the complaint does state a claim for defamation by implication as to a republication of the article. We thus affirm in part, reverse in part, and remand for further proceedings.

I.

Representative Nunes has been a Member of Congress since 2003, and he serves as the Ranking Member of the House Permanent Select Committee on Intelligence. He worked on his family's farm in California as a child, and later owned farmland with his brother. In 2006, the Nunes family sold its farmland in California, and the Congressman's parents and brother moved to Sibley, Iowa, where his father purchased a dairy farm, NuStar Farms. According to the complaint, the farm is operated by the Congressman's family without his involvement, and the Congressman has no financial interest in the farm.

On September 30, 2018, Esquire magazine (then owned by Hearst) published an article about Representative Nunes and the farm. Lizza authored the piece. The online version is entitled "Devin Nunes's Family Farm Is Hiding a Politically Explosive Secret." The print version is entitled "Milking the System," and includes a caption that asks two questions about a Congressman who has "spun himself as a straight talker whose no-BS values are rooted in his family's California dairy farm": "So why did his parents and brother cover their tracks after quietly moving the farm to Iowa? Are they hiding something politically explosive?"

The article maintains that Representative Nunes and his family hid the fact that the family farm is now in Iowa. The article states that Nunes (1) "has a secret" and (2) that "he and his parents seemed to have concealed basic facts about the family's move to Iowa." The article describes how his parents, "Anthony Jr. and Toni Dian, ... used their cash from the sale to buy a dairy eighteen hundred miles away in Sibley," and declares it "strange ... that the family has apparently tried to conceal the move from the public—for more than a decade." The article ponders: "Why would the Nuneses, Steve King, and an obscure dairy publication all conspire to hide the fact that the congressman's family sold its farm and moved to Iowa?" When the article was published, Steve King was the Member of Congress who represented the district in Iowa where the farm is located.

The article later asserts that the farm uses undocumented labor: "According to two sources with firsthand knowledge, NuStar did indeed rely, at least in part, on undocumented labor. One source ... had personally sent undocumented workers to Anthony Nunes Jr.’s farm for jobs" and "assert[ed] that the farm was aware of their status."

Two statements insinuate that the farm's use of undocumented labor is the reason that Representative Nunes and his family were hiding the family's move and their operation of an Iowa dairy farm. Lizza wrote that "[o]ther dairy farmers in the area helped me understand why the Nunes family might be so secretive about the farm: Midwestern dairies tend to run on undocumented labor." The article also includes a quote from Lizza's interview with a local newspaper reporter, who said that the farm's workers " ‘are immigrants and Devin is a very strong supporter of Mr. Trump, and Mr. Trump wants to shut down all of the immigration, and here is his family benefiting from immigrant labor,’ documented or not."

The article also accuses Representative Nunes of improper conduct during his tenure as Chairman of the House Intelligence Committee. The article says that he used his chairmanship (1) "to spin a baroque theory about alleged surveillance of the Trump campaign that began with a made-up Trump tweet about how ‘Obama had my "wires tapped" in Trump Tower,’ " and (2) as a "battering ram to discredit the Russia investigation and protect Donald Trump at all costs, even if it means shredding his own reputation and the independence of the historically nonpartisan committee in the process."

After the article was published, Nunes sued Lizza and Hearst in the district court, alleging common-law defamation and conspiracy. The complaint, as amended, claims express defamation based on eleven alleged false statements in the article, and defamation by implication. The alleged defamatory implication is that the article implies falsely that Representative Nunes "conspired or colluded with his family and with others to hide or cover-up" that the farm "employs undocumented labor."

Lizza and Hearst moved to dismiss the complaint for failure to state a claim, and the district court granted the motion. The court ruled that the individual statements and alleged implication were not defamatory as a matter of law. The court further concluded that even if the article was defamatory, the complaint still failed to state a claim because it did not allege plausibly that Lizza and Hearst acted with "actual malice" in publishing the article. Having determined that the complaint failed to allege defamation, the court dismissed the conspiracy claim as well.

Nunes appeals the dismissal of his complaint, and we review the district court's decision de novo . "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation omitted).

II.

On appeal, Nunes contends that his complaint states a claim for express defamation and defamation by implication. We apply Iowa substantive law in this diversity action because the district court determined that there was no conflict between Iowa and California defamation law, and the parties do not challenge that conclusion on appeal. See Oakdale Mall Assocs. v. Cincinnati Ins. Co. , 702 F.3d 1119, 1122 (8th Cir. 2013).

Defamation is "an invasion of the interest in reputation and good name" that is comprised of the "twin torts of libel and slander—the former being written and the latter being oral." Johnson v. Nickerson , 542 N.W.2d 506, 510 (Iowa 1996). Nunes's complaint sounds in libel. To establish a prima facie case of express defamation under Iowa law, "the plaintiff must show the defendant (1) published a statement that (2) was defamatory (3) of and concerning the plaintiff, and (4) resulted in injury to the plaintiff." Id. Because Representative Nunes is a public figure, the Supreme Court's jurisprudence on the First Amendment also requires him to prove by clear and convincing evidence that the defamatory statement is false and was made with actual malice. Harte-Hanks Commc'ns, Inc. v. Connaughton , 491 U.S. 657, 659, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) ; N.Y. Times Co. v. Sullivan , 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

A claim asserting defamation by implication requires proof of similar elements, except that a plaintiff need not show that individual statements are defamatory. Instead, defamation by implication arises from what is implied when a defendant "(1) juxtaposes a series of facts so as to imply a defamatory connection between them, or (2) creates a defamatory implication by omitting facts." Stevens v. Iowa Newspapers, Inc. , 728 N.W.2d 823, 827 (Iowa 2007) (quoting Dan B. Dobbs et al., Prosser & Keeton on the Law of Torts § 116, at 117 (5th ed. Supp. 1988)). The implication constitutes defamation "even though the particular facts are correct," unless it qualifies as an "opinion." Id. (quoting Prosser & Keeton on the Law of Torts § 116, at 117). The court must determine whether an objectively reasonable reader could draw the alleged false implication from the article as a whole. Manzari v. Associated Newspapers Ltd. , 830 F.3d 881, 889-90 (9th Cir. 2016) ; Toney v. WCCO Television, Midwest Cable & Satellite, Inc. , 85 F.3d 383, 394-96 (8th Cir. 1996).

A.

Nunes first contends that the district court erred in dismissing his claim for express defamation. He challenges the court's ruling that the two statements about improper use of his position as Chairman of the House Permanent Select Committee on Intelligence are not actionable as defamation. We agree with the district court that the complaint fails to state a claim for express defamation based on the statements, and adopt the court's conclusions. See 8th Cir. R. 47B.

Nunes also argues that a third statement is defamatory: that he "attempt[ed] to undermine the Russia investigation by releasing a partisan report ... that cherry-picked evidence to accuse the FBI of bias in its effort to obtain a warrant to monitor the communications of Carter Page." But Nunes failed to identify that statement as allegedly defamatory in his complaint, and we decline to consider the issue for the first time on appeal. Michel v. NYP Holdings, Inc. , 816 F.3d 686, 705-06 (11th Cir. 2016).

B.

Second, Nunes contends that his complaint states a plausible claim for defamation by implication. He argues...