You Can’t Tweet That: A Court Just Incentivized Lawsuits Meant to Silence Critics

Devin Nunes loves to sue his critics. He’s filed ten defamation lawsuits against media organizations and others. Some are jokes — literally. Nunes, who’s apparently incapable of taking a joke, sued a satirical Twitter account called @DevinCow — an anthropomorphic cow with a proclivity for making fun of the Congressman.

Last week, however, Nunes can claim some success in a defamation case brought against Hearst and journalist Ryan Lizza. In that case, the Eighth Circuit Court of Appeals, by way of three Republican appointed judges, revived his claim against Hearst and Lizza, allowing it to go forward based on a tweet that . . . says nothing defamatory. In doing so, it ignored Supreme Court precedent and otherwise botched the analysis.

The case’s implications are far reaching. It rewrites law in the Eighth Circuit making it easier for defamation plaintiffs like Nunes to prevail. And, worse, it emboldens defamation plaintiffs everywhere to file even meritless lawsuits knowing that doing so will prevent the author (or, frankly, anyone else) from linking to the article out of fear of being sued for defamation. The opinion thus transforms even a frivolous defamation lawsuit into an automatic gag order.

It is, in short, a threat to the First Amendment and it must be revisited, vacated, and the decision below affirmed.

The Case

In 2020, Nunes sued Hearst and Lizza after they published the article, Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret, which you can read here. (Query whether that hyperlink somehow makes the author of this post potentially liable for the article too.) The article reports on the Nunes family farm, their move to Iowa, and a “secret” they are supposedly hiding.

Nunes filed his lawsuit in federal court in Iowa alleging that the article implies that Nunes “conspired or colluded with his family and with others to hide or cover-up” that the family farm “employs undocumented labor.” He later filed an amended complaint adding a claim that a tweet from Lizza, sent after Nunes filed the original lawsuit, was defamatory insofar as it “republished” the original article:

The trial court correctly dismissed the case, finding, among other things, that Nunes did not show that Hearst or Lizza acted with the requisite fault that public officials, like Nunes, must ordinarily show. That fault requirement — called “actual malice” —required Nunes to allege facts showing that the defendants knew that the defamatory statement was false or had a high degree of awareness that it probably was.

The Appeal

This week though, the Eighth Circuit reversed that ruling, reviving Nunes’ lawsuit — and it did so based on that single tweet from Lizza. In fact, as to the article itself, the appellate court “agreed with the district court that the complaint is insufficient to state a claim of actual malice as to the original publication.”

But the appellate court then said that it disagreed with the district court’s decision “that the complaint does not state a plausible allegation that Lizza acted with actual malice by republishing the article on his Twitter account after this lawsuit was filed.”

As the court pointed out, in defamation cases, there is a distinction between the original publication and what the law calls a “republication.” This matters because fault is a subjective standard. So a defendant, like Lizza, might not act with the requisite fault at the time of the original publication, but might later learn new facts that demonstrate an allegation to be untrue. If the defendant republishes after learning those facts, he might do so with the necessary fault.

Another legal rule exists though to protect defendants from being judged by hindsight. The single publication rule, provides that — in general — a publication is published just once, when it’s first distributed. So long as the publication isn’t later altered or its allegations later repeated, a plaintiff cannot try to hold a defendant accountable based on new facts unknown at the time of publication.

In other words, the law only cares what Lizza knew at the time of publication. and the single publication rule insulates Lizza from being judged with hindsight.

The appellate court, however, said that Lizza and Hearst could not claim the protection of the single publication rule because Lizza the tweet sent after publication amounted to a republication of the original article. In other words, by tweeting a link to the story, it was as if Lizza “republished” the original article in whole.

By doing so, the court wrote, Lizza gave up the protections of the single publication rule and placed himself in jeopardy: “A speaker who repeats a defamatory statement or implication after being informed of its falsity ‘does so at the peril of generating an inference of actual malice.’”

What was the intervening event between the original publication and the tweet that “informed” Lizza of the publication’s falsity?: Nunes’ lawsuit that denied the allegations about undocumented labor. Because “Lizza intended to reach and actually reached a new audience by publishing a tweet about Nunes and a link to the article,” his fault could be judged from that later point in time after he received the denial.

And, the court said, that made all the difference since at the time he tweeted he knew Nunes denied that the farm used undocumented labor. In light of that denial, it was plausible that Lizza (and Hearst) knew the implication in the original article to be false.

What the Court Got Wrong

This is all wrong though, for any number of reasons.

1. Ignored That The Tweet Was Not Defamatory On Its Face

The first problem with the appellate court’s reasoning is that there is nothing in the tweet that is defamatory — Lizza never repeats what Nunes alleges is defamatory in the article. The tweet only vaguely references a “strange tale about Nunes, small-town Iowa, the complexities of immigration policy, a few car chases, and lots of cows.”

It says nothing about undocumented farm labor or even the Nunes family’s use of undocumented labor.

Lizza also included a link to the original article in the tweet, which Twitter’s platform displays as a short “tease” for the article. But nothing in that is defamatory either. It, again vaguely, refers to an “explosive secret,” but it never says anything about undocumented labor either.

The text below the title is similarly vague. It says only: “Why did Devin’s Nunes’s parents and brother cover their tracks after quietly moving their family farm to Iowa?” And, it adds, that “Lizza went to Iowa in search fo the truth.” None of this is defamatory.

So, unlike a tweet that alleges something defamatory in the tweet itself (see, for example, the Courtney Love saga), there is nothing from the face of Lizza’s tweet that is defamatory.

2. The Tweet Was Not A Republication Of The Original Article

Because the tweet is not itself defamatory, unless it constituted a republication of the underlying article by hyperlinking, the case must be dismissed. But the law is clear: linking to articles “simply alerts a new audience to the existence of a preexisting statement,” but it “does not republish” any defamatory allegations in it.

Indeed, courts have found that doing exactly what Lizza did — tweeting a link to an article but “not changing” “the original text of the article” or repeating the defamatory statements “of the article to a new audience” — does not constitute a republication.

As the European Court of Human Rights explained, “Hyperlinks . . . are essentially different from traditional acts of publication in that, as a general rule, they merely direct users to content available elsewhere on the Internet.”

Said differently, “They do not present the linked statements to the audience or communicate its content, but only serve to call readers’ attention to the existence of material on another website.”

But the appellate court in Nunes’ case disagreed, writing that the “complaint here adequately alleges that Lizza intended to reach and actually reached a new audience by publishing a tweet about Nunes and a link to the article.” That, the court wrote, “sufficiently alleges that Lizza republished the article”

Certainly, Lizza’s intent is relevant to the question of republication. A fancy (but old) legal book called the Restatement says: the reason for the republication exception to the single publication rule “is that in these cases the second publication is intended to and does reach a new group.”

But the Eighth Circuit misses the more fundamental issue: “the critical feature of republication is . . . that the original text of the article was changed or the contents of the article presented directly to a new audience.” And, here, neither of those facts are present.

True, Lizza does tweet vaguely about what the article is about, but he never repeats the defamatory charge. As the Restatement makes clear, that is required: “if the same defamatory statement is published in the morning and evening editions of a newspaper, each edition is a separate single publication and there are two causes of action.”

Lizza’s intent should get Nunes only part way there. The Eighth Circuit ignored the rest of the requirements necessary for a court to find a republication.

3. Denials Do Not Constitute Evidence Of Actual Malice

Republication or not, none of this matters unless Lizza actually learned something between the publication of the original article and the tweet that weighed on his belief in the article’s truth.

He didn’t learn anything relevant on that point though. Denials from the subject of the allegation are, traditionally, not evidence of actual malice. So Nunes’ denial by way of the lawsuit cannot somehow create actual malice in the mind of Lizza.

The reason for the rule is simple: if a mere denial could create actual malice, the actual malice rule would be sapped of any meaning because the subject most likely will denial the charge. The murderer rarely confesses to the murder, after all.

Nevertheless, the court of appeals, quoting the Restatement, said that “Republication of a statement after the defendant has been notified that the plaintiff contends that it is false and defamatory may be treated as evidence of reckless disregard.”

But even if assume that the tweet was a republication, the Restatement rule isn’t an accurate statement of law. If a denial before publication doesn’t make out actual malice, a denial after publication and before republication doesn’t make out actual malice either.

And, indeed, years after the Restatement was published, the Supreme Court stated unequivocally that “the press need not accept ‘denials, however vehement; such denials are so commonplace in the world of polemical charge and countercharge that, in themselves, they hardly alert the conscientious reporter to the likelihood of error.’” The Restatement is out of date.

As another federal appellate court said this year in response to arguments that denials were sufficient for a defamation case to move forward: “This too finds no support in our First Amendment case law.”

Thus, the intervening event — a denial by way of Nunes’ lawsuit — is meaningless legally. And, as a practical matter, it’s expected. Politicians often denial allegations of wrongdoing, but that does not mean reporters must shut up after they hear a denial.

The Eighth Circuit’s attempt to distinguish an earlier case on this point is no more convincing. That case, the court said, “reversed a jury verdict in favor of defamation plaintiffs after a trial.” But here, the court was considering “only whether Nunes’s complaint states enough factual matter, accepted as true, to raise a ‘reasonable expectation that discovery will reveal evidence’ of actual malice.”

Yet, it’s unclear why the difference should matter. The rule that a mere denial is not evidence of actual malice is purely a legal proposition. Whether the denial is considered at a motion to dismiss or at summary judgment the result should be the same. And, as noted, the rule has been applied on motions to dismiss.

The Implications

Obviously the case has implications for the defendants, but it has implications for everyone else too. Initially, it suggests, contrary to Supreme Court precedent, that a denial is evidence of actual malice sufficient to survive a motion to dismiss. If that’s the case then anyone who tells a journalist that an allegation is false before publication could survive a motion to dismiss.

Worse though is what it encourages: the filing of defamation lawsuits knowing that simply filing the lawsuit will make it impossible for the author (and maybe anyone else) to let others know about the existence of the article. Under the court’s opinion, linking to or telling someone about the mere existence of the article — like this article does — could be grounds for a defamation lawsuit.

For example, under the court’s logic, a defendant cannot tell someone about the article they were sued for. They cannot provide a link to the article in an attempt to hold a fundraiser for funds to defend a lawsuit. They cannot tweet to their followers: “I was sued for this article.” It forces defendants to shut up.

As Ari Cohen, a First Amendment lawyer, explained, the Eighth Circuit has published “a highly illogical and unfounded opinion that plays directly into the hands of people like Devin Nunes” who try to silence critics through filing repeated defamation lawsuits. In other words, it rewards plaintiffs who are filing what the law calls strategic lawsuits against public participation.

The decision cries out for reconsideration in order to protect journalism and citizen critics of public officials. Hopefully, the en banc Eighth Circuit revisits and sets the record straight. Because of the obvious errors of law, and the over-reliance on the outdated Restatement, the opinion is, to use a legal phrase, flat wrong.

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Media Lawyer. Adjunct Professor/Mass Media Law at Fordham University School of Law. Twitter @MatthewSchafer

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Matthew Schafer

Matthew Schafer

Media Lawyer. Adjunct Professor/Mass Media Law at Fordham University School of Law. Twitter @MatthewSchafer

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