You’d think a guy who was relentlessly trolled for filing lawsuits over a cow-parody Twitter account would be a little more careful before initiating more litigation. Apparently not. Neither yachts, nor moms, nor threat of late-nite television will deter Rep. Devin Nunes (R-Calif.) from having his day(s) in court – even when his claims are worth less than the barren cows we all studied in law school.
Nunes is asking for “not less than $150,000,000” in his lawsuit filed against the McClatchy Company and Liz Mair for defamation per se and common law conspiracy. Nunes’ legal action stems from a May 23, 2018 article in the Fresno Bee by reporter Mackenzie Mays headlined, “A yacht, cocaine, prostitutes: Winery partly owned by Nunes sued after fundraising event.” The article detailed the story of a server aboard a San Francisco yacht who said drugs and prostitution were afoot during a cruise attended by Alpha Omega Winery’s top investors. The server sued the winery, and Mays penned the story, noting that Devin Nunes owned a partial interst in the winery.
After publishing the story, Mays shared the article via Twitter and, from there, it went viral. Liz Mair is a political communications strategist — or as Nunes put it, “a digital terrorist for-hire.” After being sued by Nunes in a related lawsuit, Mair changed her Twitter account name to “BeingSuedByDevinNunes.”
Nunes’ narrative appears to be that Mays’ Yacht/Cocaine/Prostitute story was written and shared in a way that falsely implied that Nunes was directly involved with illegal and immoral happenings aboard a yacht. Such a claim might have had legal merit — if that’s actually what the article had said. In actuality though, Nunes’ Complaint is practically a parody of itself, beginning with the accusation that McClatchy “weaponized its powerful pen and used it as a terrible sword,” in a practically George R.R. Martin-esque recital of Nunes’ unfair victimization.
Nunes’ Complaint begins with the quaint tale of a teenage cowhand Nunes who saved to begin a harvesting business, pooled resources with his brother, and studied agriculture before embarking on a political career. After the pastoral groundwork, the Complaint begins its ludicrous descent into utter frivolity. Even if we were able to get past Nunes’ lawyer’s lack of understanding how the internet works (and let’s face it, that’s a tough one to get past), the lawsuit is a mess.
First, it lists as “falsehoods” items that aren’t even statements of fact, much less those that are potentially defamatory. For example, according to Nunes, the Mays claimed to be “unclear” about whether Nunes had actually been involved with the yacht/cocaine fundraiser, when in fact, the author knew Nunes had not been involved at all. This would be a good time to point out that defamation requires proof that a defendant made a false claim about a plaintiff, not that a defendant misrepresented something about her own state of mind.
Let’s stay on “things that couldn’t equal defamation for $200.” Nunes’ whining about the difference in dates for an Alpha Omega/Russia transaction is also pretty silly. Whether the Fresno Bee reported that Alpha Omega Winery sold wine to Russians in 2013 or 2016, or whether it properly corrected or “stealth-edited” its date references on the sale is irrelevant — probably even to Alpha Omega itself, but certainly to Devin Nunes’ defamation claim. Defamation requires a false statement of fact about the plaintiff that causes the victim financial harm.
While Nunes might have no trouble claiming to have suffered nine-figures of damage from this article, the logic just doesn’t work. Nunes isn’t Alpha Omega, and even if he were, the difference between reporting a 2013 sale and a 2016 sale isn’t likely to cause the kind of harm to reputation required for defamation. Same goes for the distinction between a “fundraiser” and the “result of a charitable donation.”
Now’s also a good time to point out that Devin Nunes is a public figure. That means that in order to succeed on a defamation claim, he’d need to prove “actual malice” — that the defendants knew their reporting was false or acted with reckless disregard for the truth of their reporting. While the Nunes Complaint is riddled with emphatic bold type and Shakespearean references, there’s not much in the way of any harmful statement of fact that the defendants knew or should have known was false. In 43 pages of whining about how awful the “Yacht/Cocaine/Prostitutes hit piece” was for Nunes, there’s precious little by way of 1) false statements of fact; 2) that harmed the Congressman; and 3) caused financial damages. I get that Nunes was upset to see his name in the same headline as the words “prostitute” and “cocaine,” but defamation damages don’t exist to soothe sore feelings.
From the looks of the Complaint, it doesn’t seem like Nunes’ attorney really understands how defamation cases work. Included is the following allegation:
The purpose of the concerted defamation campaign was to cause immense pain, intimidate, interfere with and divert Nunes’ attention from his investigation of corruption and alleged Russian involvement in the 2016 Presidential Election.
Sad as that all may seem, even if true it also wouldn’t count as defamation. Nunes is a Congressman. He’s paid as a Congressman. He’s paid the same whether or not his attention is diverted from the investigation into Russian election meddling. Until he’s voted out of office, he’s paid the same whether he is a Trump watchdog or whether he spends his days loafing around his office watching Fox News and reading tabloids.
Speaking of financial damages that were so nonexistent as to have not been claimed, it was also kind of a bad idea to include a footnote about how, as recently as February 2018, Nunes described the offending Fresno Bee as a “left-wing rag” and a “joke”; to make out a serious defamation claim, a plaintiff would do well to showcase how seriously a publication stands to ruin a person’s reputation, not highlight the insignificance of that publication. Defamation complaints need to spell out financial damages. If this one were a law school exam, it would get an F, and the internet knows it.
After the lawsuit taking issue with the “yacht, cocaine, prostitutes” article was filed, #YachtCocaineProstitutes started trending on Twitter.
He does not like it.
Thank you. #YachtCocaineProstitutes
— andy lassner (@andylassner) April 9, 2019
— Molly Jong-Fast (@MollyJongFast) April 9, 2019
— Signal31 (@Section_131) April 9, 2019
[Image via Drew Angerer/Getty Images]
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This is an opinion piece. The views expressed in this article are those of just the author.