Press Freedom, Defamation / Reputation, Political Expression
Bodrožić v. Serbia
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On December 24, 2020, the single judge bench of the United States District Court for the District of Columbia granted Washington Post’s motion for dismissal in the complaint filed by Representative Devin G. Nunes. Nunes had alleged defamation and civil conspiracy against the Washington Post in relation to the publication of an article concerning a purported conversation between himself and then President Donald J. Trump about a classified intelligence briefing. The judge noted that Nunes had failed to establish defamatory implication claims and the actual malice standard and that his assertions were “no more than labels and conclusions”.
The suit was filed by Representative Devin G. Nunes (“the plaintiff”) alleging defamation and civil conspiracy against the Washington Post and Shane Harris (“the defendants”) for publishing an article concerning a purported conversation that the plaintiff had with President Donald J. Trump about a classified intelligence briefing. The plaintiff sought $250,000,000 in compensatory damages and $350,000 in punitive damages. The defendants then moved the Court to dismiss and argued that the Complaint had failed to sufficiently allege a false and defamatory statement and actual malice.
The plaintiff has served in the U.S. House of Representatives since 2003. He represents California’s 22nd Congressional District, which is in the San Joaquin Valley and includes portions of Tulare and Fresno Counties, and he currently serves as the Ranking Member of the House Permanent Select Committee on Intelligence (the “House Intelligence Committee”).
On February 21, 2020, the defendants published an article titled “Senior intelligence official told lawmakers that Russia wants to see Trump reelected.” The article reported that Shelby Pierson, a senior U.S. intelligence official, told members of the House Intelligence Committee, including the plaintiff, that Russia had “developed a preference” for President Trump and wanted to see him re-elected. The article went on to report that President Trump “learned about Pierson’s remarks from Rep. Devin Nunes (Calif.), the committee’s ranking Republican and staunch Trump ally.”
The article continued: “Trump grew angry at his acting director of national intelligence, Joseph Maguire, in the Oval Office, seeing Maguire and his staff as disloyal for speaking to Congress about Russia’s perceived preference.” The article reported that “[Pierson’s] analysis and Trump’s furious response ruined Maguire’s chances of becoming the permanent intelligence chief.” The article noted that Maguire was “a leading candidate to be nominated to the post of [Director of National Intelligence], . . . [b]ut Trump’s opinion shifted . . . when he heard from [Nunes] about the official’s remarks.” The article further noted that, on February 19, 2020, President Trump announced on Twitter that he was replacing Maguire with Richard Grenell, the then–U.S. ambassador to Germany and “a vocal loyalist.”
The plaintiff contended that the statements in the article, “republished millions upon millions of times,” “accuse and impute to [him] criminal misconduct” and “prejudice [him] in his profession and employment as a United States Congressman”. He identified two statements as false and defamatory: (1) the plaintiff told President Trump that Pierson had given her assessment of Russia’s preference for President Trump “exclusively to Rep. Adam Schiff” and (2) President’s “opinion of Maguire shifted” after hearing from the plaintiff about Pierson’s remarks [p. 2].
The case was presided over by Justice Amit P. Mehta of the United States District Court for the District of Columbia. The central issue for consideration was whether the article published by the Washington Post could be considered as false and defamatory.
The plaintiff alleged “defamation per se” but the judge stated that the plaintiff’s claims were more appropriately considered defamatory implication claims, wherein rather than challenging the substantial truth of any statement in the disputed article, he alleged that “[t]he defamatory gist of the [article] is that Plaintiff lied to and deceived the President of the United States[.]” The plaintiff had contested the meaning conveyed by those facts instead of the facts themselves. By placing reliance on White v. Fraternal Order of Police [909 F.2d 512, 518], the judge observed that in these types of cases, defamation by implication is established if the plaintiff demonstrates that: (1) that “a defamatory inference can reasonably be drawn” and (2) that “the particular manner or language in which the true facts are conveyed” supplies “additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference” [p. 6]. The judge found that neither of the two defamatory implications as alleged by the plaintiffs could be considered “reasonable or intended or endorsed” from the statements of the article.
Firstly, the plaintiff alleged that the defendants defamed him by implying that he “lied to and deceived the President of the United States” by telling the President that Shelby Pierson “had given an exclusive briefing” to Representative Adam Schiff, however, the article only stated that “Trump erroneously believed that Pierson had given the assessment exclusively to Rep. Adam B. Schiff.” The judge also remarked that “even if one could plausibly read the article as implying that plaintiff’s communications with President Trump somehow contributed to the President’s erroneous belief, nothing in the article suggested that plaintiff affirmatively lied to and deceived the President” [p. 7]. The judge said that the defamatory implication asserted by the plaintiff was further negated by the article’s description of the briefing as one “offered to all members of the committee” and that this description left the readers with the impression that the President’s “erroneous” understanding was the product of mistake or misunderstanding, not a falsehood uttered by the plaintiff [p. 8].
Secondly, the plaintiff contended that the article’s statement “Trump’s opinion of [Acting Director of National Intelligence Maguire] shifted . . . when he heard from a Republican ally about [Pierson’s] remarks” implied that the plaintiff sought “to ‘ruin’ Maguire’s chances of becoming the permanent intelligence chief.” However, the judge opined that the article tried to explain that it was “[t]he intelligence official’s analysis and Trump’s furious response [that] ruined Maguire’s chances of becoming the permanent intelligence chief,” not the plaintiff’s characterization of Pierson’s remarks.
On the other hand, the defendants argued that even if the plaintiff’s claims were treated as straightforward defamation claims, they should be dismissed as the Complaint failed to allege that the defendants acted with “actual malice” [p. 8]. By citing Liberty Lobby v. Dow Jones [838 F.2d 1287, 1292], the judge noted that the plaintiff being a “public figure” had failed to allege that the article was published with “actual malice,” i.e. “knowledge that it was false or with reckless disregard of whether it was false or not.” The judge remarked that the the type of pleading provided by the plaintiff was “no more than labels and conclusions” ranging from naked assertions that the defendants knew the statements were false or were published to impugn his reputation due to animosity or were politically motivated.
The judge noted that these assertions failed to satisfy Rule 8 [p. 9]. Furthermore by placing reliance on Gilmore v. Jones [370 F. Supp. 3d 630, 671], the plaintiff also asserted that the defendants “abandoned all journalistic standards and integrity in writing, editing, and publishing the [article]”. In that case, departure from journalistic standards was due to a failure to seek comment, however the judge observed that in the present case the opposite happened and the plaintiff had failed to respond to the defendants [p. 10].
The Court therefore dismissed the defamation allegations and held that the Complaint failed to plead the threshold requirements for defamation by implication and, in any case, failed to plausibly plead actual malice. The plaintiff had also alleged a common law conspiracy between the defendants and House Democrats “for the express purpose of defaming and injuring Plaintiff.” However, since the plaintiff’s underlying defamation claims had failed, the judge dismissed the charges of conspiracy as well. Therefore, the defendants’ Motion to Dismiss was granted.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The United States District Court expanded the expression and freedom of press by dismissing the defamation proceedings initiated by Devin G. Nunes against the Washington Post, a leading American newspaper. The judge noted that neither of the two defamatory implications as alleged by the plaintiff could be considered “reasonable or intended or endorsed” from the statements of the published article and that the pleadings of the plaintiffs were “no more than labels and conclusions”. By applying the “actual malice” standard devised in New York Times v. Sullivan, the judge raised the standard of proof in defamation proceeding initiated by a “public figure” and upheld that the plaintiff needs to establish that the defendant acted with “actual malice,” i.e. “knowledge that it was false or with reckless disregard of whether it was false or not.”
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