Devin Nunes appears in a March 2019 file photo. (Image via Drew Angerer/Getty Images)
The defamation lawsuit filed by Republican congressman-turned-Truth Social CEO Devin Nunes and his family against journalist Ryan Lizza and Hearst Magazines over a 2018 Esquire article fell flat this week, as a judge found it “substantially, objectively true” that the family’s farm in Iowa “knowingly” employed undocumented immigrants.
The former California congressman, who has waged numerous unsuccessful (so far) lawsuits over the years — perhaps most infamously against the Twitter accounts Devin Nunes’ Cow and Devin Nunes’ Mom — first filed suit against Lizza and Hearst in September 2019. The complaint alleged that Politico’s Lizza, then an independent contractor reporting for Esquire, defamed the congressman with actual malice and conspired to publish the “hit piece” headlined “Devin Nunes’s Family Farm is Hiding a Politically Explosive Secret.”
A second defamation lawsuit filed on behalf of the dairy farm itself, NuStar Farms, and Anthony Nunes Jr. and Anthony Nunes III, Devin Nunes’ father and brother, was filed on Jan. 16, 2020. The cases were consolidated in February 2022.
The plaintiffs attempted to show that it was defamatory of Lizza to write — and for Esquire to publish — that the Nunes family, which “owned and operated a dairy farm in Tulare, California for more than a century,” was hiding from the public that the farm was now located in Iowa, not California. The article also said that the family dairy “knowingly” employed undocumented immigrants, despite then-President Donald Trump’s hardline stance on illegal immigration and the then-GOP congressman’s support for Trump and his immigration policies.
In a 101-page opinion issued Tuesday, U.S. District Judge C.J. Williams granted Lizza and Hearst Magazine’s motion for summary judgment, finding that the Nunes family members had not presented enough evidence to show that there was at least a dispute as to whether the facts in Lizza’s piece were, indeed, false — and falsity is a key element of proving a defamation claim.
In his ruling, Williams found that the plaintiffs did likely know that at least some of the laborers on the farm were not in the country legally.
“Despite the fact that NuStar plaintiffs legally needed to obtain verification from prospective employees through unexpired documents, they accepted expired cards, at least some of which explicitly stated when they expired,” Williams wrote. “For instance, the state identification card one worker presented to them had an expiration date on it, as did some of the resident cards and permanent resident cards.”
Some documents had “numerous problems and inconsistencies,” including misspellings and referring to one employee by different names.
“These facts support defendants’ position, not plaintiffs’ — the facts plaintiffs cite simply reference the fact NuStar plaintiffs could not or did not question documents that appeared genuine as opposed to showing that NuStar plaintiffs can prove they lacked knowledge of their employees’ documentation status,” Williams wrote, adding that the plaintiffs presented “no evidence” supporting their claim that statements that the family “knowingly hired undocumented laborers” were false.
“The assertion that NuStar knowingly used undocumented labor is substantially, objectively true,” Williams found.
Although the failure to show falsity is fatal to a defamation claim, Williams did indicate that Nunes may have been able to prove actual malice — the state of mind necessary for a public figure to prove a defamation claim — on the part of Lizza and the magazine, had the complaint survived summary judgment.
Nunes had attempted to show Lizza acted with actual malice by pointing out that the journalist had tweeted the article in question even “after the retraction demand and lawsuit filing,” claiming that it was a transparent attempt to “inflict harm on his career, as defendants knew he was a prominent member of Congress.”
Indeed, the judge said, the congressman claimed he had “suffered injury as a result of the Tweet.”
Nunes also alleged that “Lizza knew the Article contained falsehoods when he made the Tweet because he had audiotapes of source interviews that did not contain what he claimed they did,” the judge recapped. “Here, the Court finds by clear and convincing evidence that there is a question as to whether actual malice existed.”
But even as Judge Williams acknowledged the potential to prove actual malice, the question was academic, because Williams had determined that the falsity element of the defamation claim had not been met.
“In total, however, because Nunes does not show a genuine issue of material fact on all elements of his claim, a reasonable jury could not find in his favor,” the judge ruled.
The judge also found that the plaintiffs’ arguments as to whether Lizza was merely negligent in his reporting — a lower standard reserved for defamation claims on behalf of private people, in this case the NuStar plaintiffs — did not support a finding in their favor.
“At most, plaintiffs have shown defendants may have made some mistakes, but like every other profession, journalism is not held to a standard of perfection,” Williams wrote. “Pointing to isolated instances of errors does not satisfy plaintiffs’ burden of showing a genuine issue of material fact as to negligence.”
In addition to granting the motion for summary judgment in the defendants’ favor, Williams ordered that a pending motion to unseal certain documents in support of the motion be held in abeyance.
Tuesday’s ruling was not Williams’ first rejection of the plaintiffs’ legal theories in this case. As Law&Crime reported at length in May 2020, when Williams kept the case alive in the Northern District of Iowa, the Trump-appointed jurist thoroughly poked holes in the pleadings produced by the plaintiffs. The court said at the time that it wasn’t even clear “which of the facts plaintiffs allege[d] are actually false,” leaving defendants “not knowing how to answer the complaint.”
“The exercise also shows that the complaint fails to allege facts which, if proven, would show that any of the alleged facts are false,” Judge Williams added in a representative remark.
The plaintiff cases went on to be amended three times, as the judge “directed plaintiffs to amend their complaint and limit the defamation claim to the claim regarding knowing employment of undocumented laborers.”
Law&Crime reached out to counsel for the parties for comment on the ruling. We will add responses if we receive them.
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