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Is This the Worst Lawsuit of 2019?

We have freedom of speech in America, but it has limits. For one, if we defame other people—saying something untrue that hurts their reputation—we can be sued for damages. One defense to such a lawsuit is that the harmful speech is true. You can’t defame someone if what you’re saying is correct.

Which takes us to the strange lawsuit filed by Congressman Devin Nunes (R-CA).

In April 2019, Rep. Nunes filed a lawsuit against McClatchy (a newspaper chain that owns The Fresno Bee) for $150 million, alleging defamation and conspiracy. He also filed a separate lawsuit, for $250 million, against Twitter, two anonymous Twitter accounts, and a Republican strategist.

The meat of the matter as we understand it is as follows.

A newspaper in California ran a story about how a winery, in which Nunes was a small investor, was accused of having a drugs-and-hookers party. The 2018 article, titled “A yacht, cocaine, prostitutes: Winery partly owned by Nunes sued after fundraiser event,” reports on a 2016 lawsuit against the winery by a former employee.

The news story did not claim Nunes was involved in these allegations, but Nunes is upset that his name was tied in with the saucy allegations.

One can certainly sympathize with the Congressman. But his lawsuit appears weak.

For one, it doesn’t seem the media says anything factually incorrect. The article title notes that the connection between Nunes and the winery is that the business is “partly owned by Nunes.” Nunes admits as much in his lawsuit (“Nunes was (and is) a limited partner of the Alpha Omega Winery.”). The complaint appears to largely revolve around the claim that there is a “defamatory implication” to the article. But the arguments are unconvincing.

Nunes has also filed his lawsuit in Virginia, despite the fact that the offending content was reported by a California paper, and McClatchy is headquartered in California.

And lastly, Nunes didn’t ever serve his lawsuit on the defendants for four months after filing it (though he was happy to go on TV to discuss it). This makes it seem like a PR stunt more than serious litigation.

Use another case as an analogy. In 2009, there was a news scandal when two Domino’s employees made a prank video of themselves in which they pretended to put nasal mucus on food for customers. They were fired. Clearly, this was two rogue employees and there was no evidence Domino’s corporate leadership had any foreknowledge of this dumb stunt. But should any blogger or newspaper who mentioned the Domino’s brand be sued for millions of dollars in damages? Of course not.

“Implications” can be very subjective. And in general, public figures like Nunes have a higher bar for bringing defamation lawsuits precisely because they are in politics and in the public eye—there’s going to be a lot of tough criticism. In the Nunes case, the claims are unconvincing and would set a bad precedent.

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