Nunes v. WP Co.
| Decision Date | 11 August 2021 |
| Docket Number | Civil Action 1:21-cv-00506 (CJN) |
| Parties | DEVIN G. NUNES, Plaintiff, v. WP COMPANY LLC, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Representative Devin Nunes alleges that the Washington Post and its reporter Ellen Nakashima (together, “the Post”) defamed him in an article published on November 9, 2020. See Am Compl., ECF No. 22. Defendants move to dismiss Nunes's Amended Complaint. See Mem. Supp. Defs.' Mot. to Dismiss ( ), ECF No. 27. Although the question is a close one, Nunes's allegations suffice to survive dismissal as to his defamation claim, but not as to his negligence claim. Defendants' Motion is therefore granted in part and denied in part.
Nunes is the Ranking Member of the House Permanent Select Committee on Intelligence. Am. Compl. ¶ 1. On November 9, 2020 the Post published an article about the selection of Michael Ellis as general counsel of the National Security Agency. Id. Ellis had once served as Nunes's chief of staff. Id. The article focused principally on Ellis-including that his appointment was made “under pressure from the White House”-but it also discussed Nunes. In particular, the article stated that:
In March 2017, [Ellis] gained publicity for his involvement in a questionable episode involving Nunes, who was given access at the White House to intelligence files that Nunes believed would buttress his baseless claims of the Obama administration spying on Trump Tower.
Id. (emphasis added). The online version of the article (but not the print version) included another sentence that mentioned Nunes:
News reports stated that Ellis was among the White House officials who helped Nunes see the documents-reportedly late at night, earning the episode the nickname “the midnight run.”
Defs.' Mot., Ex. A at 5 (emphasis added); id. Ex. B at 2. Nakashima is listed as the author of both versions of the article.
This was not the first time that the Post (and other news outlets) had reported on claims that the Obama administration had spied on Trump Tower or that intelligence gathering had been directed toward the Trump campaign. Those reports began three and a half years earlier. In March 2017, then-President Trump tweeted that President “Obama had [Trump's] ‘wires tapped' in Trump Tower.”[1] Thereafter, various officials made public statements about whether there had been a wiretap on Trump Tower phones or other intelligence gathering directed toward the Trump campaign.[2] For his part, Nunes stated publicly that there was never “a physical wiretap of Trump Tower” nor a “FISA warrant . . . to tap Trump Tower.”[3] But Nunes also expressed his “concern[] that other surveillance activities were used against President Trump and his associates, ”[4] and that he thought it was “very possible” that Trump (or others at the White House) might have been swept up in surveillance targeting foreign nationals on U.S. soil.[5]
As particularly relevant here, during this period, the Post published at least two articles emphasizing that a meaningful difference separated Trump's and Nunes's positions. In one article (published on March 15, 2017), the Post laid out “a brief list of people who have said that President Trump's allegation that President Barack Obama ordered a wiretap of Trump Tower . . . is simply not true.”[6] Nunes was the first person on the list; the Post identified him as “one of the few defenders of Trump's claims, ” but explained that he had “made clear . . . that there is zero evidence to suggest Trump Tower was wiretapped.”[7] In a second article, published eleven days later, the Post described the situation as the “most notabl[e]” example of the “few cases” in which “Nunes [was] at odds with Trump.”[8]
But the Post's November 9, 2020 article did not draw this distinction, and eight days after its publication, Nunes notified the Post that he believed the article was false and defamatory. Am. Compl. ¶ 6. He also demanded that it remove the statements about Nunes making “baseless claims” and visiting the White House “late at night” and issue a retraction or correction. Id. ¶¶ 2, 7. On December 8, the Post revised its online article to state that “[i]n March 2017, . . . Nunes . . . was given access at the White House to intelligence files that Nunes believed would buttress Trump's baseless claims of the Obama administration spying on Trump Tower, ” and that while “[t]he precise timing of the visit is unclear, . . . Nunes says it took place during daylight hours.” Defs.' Mot., Ex. D at 3 (emphasis added). It also issued a correction at the top of the article, which stated that:
As originally published, this article inaccurately attributed claims that the Obama administration spied on Trump Tower to Rep. Devin Nunes (R-Calif.), rather than to President Trump. Nunes has stated that he did not believe there had been any wiretapping of Trump Tower. This article has also been updated to note that Nunes says an incident known as the “midnight run” took place during daylight hours.
Id. And on December 8, 2020, the Post ran the following print retraction:
A Nov. 10 A-section article about the naming of Michael Ellis as general counsel of the National Security Agency inaccurately attributed claims that the Obama administration spied on Trump Tower to Rep. Devin Nunes (R- Calif.), rather than to President Trump. Nunes has said that he did not believe there had been any wiretapping of Trump Tower.
Defs.' Mot., Ex. A at 2. On the same day that he demanded that the original article be retracted or corrected, Nunes initiated this lawsuit in the Eastern District of Virginia. See generally Compl., ECF No. 1. He later amended his Complaint to reflect the online updates and print retraction, alleging that both the original and updated versions of the article are defamatory and that the Post was negligent in publishing it. See generally Am. Compl. The case was transferred to this Court on February 22, 2021.
The Post's Motion to Dismiss is now fully briefed. The Post argues that (1) the article is neither materially false nor defamatory; (2) Nunes has not plausibly alleged that the Post published the article with actual malice; (3) Nunes may only recover special damages under California's retraction statute (which he has failed to allege); and (4) the First Amendment bars the negligence claim. See generally Defs.' Mot. The Court heard oral argument on the Motion on May 18, 2021. See Min. Entry of May 18, 2021.
When evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must “treat the complaint's factual allegations as true . . . and must grant plaintiff the benefit of all inferences that can be derived from the facts alleged.” Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003) (internal quotation omitted). Although the Court accepts all well-pleaded facts in the complaint as true, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “While a complaint . . . does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of [its] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (internal quotations and citations omitted). The claim to relief must be “plausible on its face, ” and a plaintiff's pleadings must “nudge[ the] claims across the line from conceivable to plausible.” Id. at 570.
A. Defamation Claim
In general, a plaintiff alleging defamation under District of Columbia law[9] must plead:
(1) that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant published the statement without privilege to a third party; (3) that the defendant's fault in publishing the statement amounted to at least negligence; and (4) either that the statement was actionable as a matter of law irrespective of special harm or that its publication caused the plaintiff special harm.
Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 858 (D.C. Cir. 2006) (quoting Beeton v. District of Columbia, 779 A.2d 918, 923 (D.C. 2001)). If the plaintiff is a public official, the First Amendment requires more: a public official must plead that the defendant published the statement “with ‘actual malice,' that is, with ‘knowledge that it was false or with reckless disregard of whether it was false or not.'” Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1292 (D.C. Cir. 1988) (quoting N.Y. Times Co. v. Sullivan, 370 U.S. 254, 280 (1964)).
The Post first argues that Nunes has failed to allege that the article is materially false. Defs.' Mot. at 9-16. A materially false statement has “a different effect on the mind of the reader from that which the pleaded truth would have produced.” Shipkovitz v. Wash. Post. Co., 408 Fed.Appx. 376, 378 (D.C. Cir. 2010) (quoting Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 (1991)). “Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge be justified.” Masson, 501 U.S. at 517 ( California law) (internal quotation omitted); accord Liberty Lobby, Inc., 838 F.2d at 1296 ().
Nunes alleges that the article is false because he has never claimed that the Obama administration spied on Trump Tower. The Post doesn't really contend that Nunes has ever made that claim; instead, it argues that the article is substantially...
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