Same judge on same day denies motions to dismiss in Dominion, Devin Nunes defamation lawsuits

Jacqueline Thomsen at the National Law Journal has more on Dominion v. Powell and Nunes v. Washington Post. For more, the Wall Street Journal on Dominion and Law360 on Nunes.

From Dominion (with some citations removed):

Powell contends that no reasonable person could conclude that her statements were statements of fact because they “concern the 2020 presidential election, which was both bitter and controversial,” and were made “as an attorney-advocate for [Powell’s] preferred candidate and in support of her legal and political positions.” As an initial matter, there is no blanket immunity for statements that are “political” in nature: as the Court of Appeals has put it, the fact that statements were made in a “political ‘context’ does not indiscriminately immunize every statement contained therein.” It is true that courts recognize the value in some level of “imaginative expression” or “rhetorical hyperbole” in our public debate. But it is simply not the law that provably false statements cannot be actionable if made in the context of an election.

. . .

The question, then, is whether a reasonable juror could conclude that Powell’s statements
expressed or implied a verifiably false fact about Dominion. This is not a close call. To take one example, Powell has stated publicly that she has “evidence from [the] mouth of the guy who founded [Dominion] admit[ting that] he can change a million votes, no problem at all.” She told audiences that she would “tweet out the video.” These statements are either true or not; either Powell has a video depicting the founder of Dominion saying he can “change a million votes,” or she does not.

To take another example, Powell has stated that she could “hardly wait to put forth all the evidence . . . on Dominion, starting with the fact it was created to produce altered voting results in Venezuela for Hugo Chávez.” Again, this statement is either true or it is not; either Dominion was created to produce altered voting results in Venezuela for Hugo Chávez or (as Dominion alleges) it was not.

Lots more like that in the opinion. (More from Jonathan Adler here.)

From Nunes, which the court describes as a “close one” (with some citations removed):

Nunes alleges that the article is false because he has never claimed that the Obama administration spied on Trump Tower. The Post doesn’t really contend that Nunes has ever made that claim; instead, it argues that the article is substantially true because a claim about the Obama administration “spying on Trump Tower” is not materially different from Nunes’ public claims about the Obama administration “spying on the Trump campaign” and conducting “surveillance activities” against President Trump and his associates. . . .

This argument might be persuasive if the article stated merely that Nunes had made claims about spying on Trump Tower; without more, a reader might think there is no meaningful difference between “spying on Trump Tower” and “surveillance activities . . . used against President Trump and his associates.” But the article also labeled Nunes’s claims as “baseless,” and the Court must consider the article as a whole. By November 2020, there was evidence to support (at least to a certain extent) Nunes’s claims about intelligence activities that touched on the Trump campaign; by that time, an Inspector General report had concluded there had been an investigation “to determine whether individual(s) associated with the Trump campaign are witting of and/or coordinating activities with the Government of Russia,” and that the investigation targeted certain U.S. persons affiliated with the campaign. What remained baseless in November 2020 (or at least what Nunes alleges remained baseless) was the claim President Trump asserted in his March 2017 tweet: that the Obama administration had wiretapped Trump Tower. But Nunes alleges he never made such a claim. This is an important difference: A reasonable juror could conclude that there is a material difference between stating that Nunes had made a claim supported by evidence (that the Obama administration had undertaken intelligence activities related to individuals involved in the Trump campaign) and stating that Nunes had made a baseless claim (that the Obama administration had wiretapped Trump Tower). A reasonable juror could therefore conclude that the article was materially false because it stated that Nunes had made such a baseless claim (when he had not).

But even if the article was materially false, it must also have defamatory meaning; that is, it must rise to the level of making Nunes “appear odious, infamous, or ridiculous,” or “tend[] to injure [him] in his trade, profession or community standing, or lower him in the estimation of the community.” . . .

The Post argues that the suggestion that Nunes “viewed documents that he believed would provide support for claims of spying made by the President” does not make him “appear odious, infamous, or ridiculous” nor suggest that he is unfit for his position as a congressman. As the Post puts it, “it was not defamatory to say that the Chairman of the House Intelligence Committee, ‘a staunch supporter of President Trump,’ viewed documents that he believed could lend credence to the President’s claims.” But again, that is not all that the article says. Taken as a whole, the article says (or at least a reasonable juror could understand the article to say) that Nunes had made baseless claims about spying on Trump Tower and then visited the White House to inspect documents that might support those baseless claims. And a reasonable juror could conclude that an elected official is ridiculous or unfit for office if he searched for evidence to support baseless claims. Indeed, the online article stated that Nunes had searched for this evidence “late at night,” suggesting something untoward about the outing. Although the Post argues that such timing suggests merely that Nunes “devoted significant time and energy to his duties,” a reasonable juror could conclude that the article carried a different meaning.

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