November 27, 2020

Devin Nunes Files Another SLAPP Suit; Sues The Washington Post Again

By Mike Masnick
Devin Nunes is one of the most vocal supporters of Parler, regularly insisting that he supports Parler because Parler supports free speech (of course, as we’ve highlighted, Parler blocks users quite frequently, contrary to its marketing claims). Of course, Nunes is a free speech hypocrite. As we’ve highlighted over the last few years, he seems to have an itchy trigger finger when it comes to suing the media and various critics for their free speech, in a variety of SLAPP lawsuits — with no clear answer yet on who is actually paying for these lawsuits designed to stifle and suppress free speech.

Earlier this year, Nunes sued the Washington Post and reporter Shane Harris in the Eastern District of Virginia. That case was was transferred to the federal district court in DC where it continues to move forward (slowly). Now Nunes, with his regular lawyer Steven Biss, have sued the Washington Post yet again, this time with reporter Ellen Nakashima. Once again, it was filed in the Eastern District of Virginia, meaning that the Washington Post is likely to go through the same process again to try to transfer the case to the DC court.

Like so many Nunes/Biss SLAPP suits, this one is… bad. At issue is the news from right after the election that a Trump loyalist and former Nunes staffer had been made the NSA’s General Counsel apparently over the objections of the NSA’s own director. This has raised a bunch of alarms for a variety of reasons — and is seen as evidence that for all of the bullshit talk of “the deep state” being out to get Trump, he’s spending his last couple months in office trying to construct his own deep state.

It was Ellen Nakashima at the Washington Post who broke the story of the Ellis appointment, and that’s the article that Nunes is now suing over. The lawsuit — somewhat laughably — argues that two sentences in the article are defamatory. Neither are defamatory. These are the two sentences:

“In March 2017, [Michael Ellis] gained publicity for his
involvement in a questionable
episode involving Nunes, who
was given access at the White
House to intelligence files that
Nunes believed would buttress his
baseless claims of the Obama
administration spying on Trump

“News reports stated that Ellis
was among the White House
officials who helped Nunes see
the documents — reportedly late
at night, earning the episode the
nickname ‘the midnight run.’
[Three White House officials tied
to sharing of intelligence files
with Devin Nunes]

The filing nitpicks at both of these statements, but has a difficult time alleging false statements of fact, which is kind of necessary for there to be defamation. For example, with that second statement while the WaPo article talks about the alleged midnight run, Nunes first says it “never happened.” But then almost immediately admits that he did, in fact, go to the White House — it just wasn’t at night. Whether or not the meeting was at night or “when the sun was out,” as Nunes claims, is not defamatory. Even more to the point, the WaPo article highlights that its citing “news reports” and that the nighttime aspect of the meeting was “reportedly” what happened, and noting (accurately) that others have referred to this as “the midnight run.” In other words, the article appropriately hedged those points and highlighted that it was covering what others were saying.

And then there’s this: even though the Washington Post was basing this statement on “news reports” Biss/Nunes tries to argue that those news reports somehow don’t count, because they were from the NY Times which is “well-known for spreading false statements.” I kid you not.

Upon information and belief, one of the “News reports” referred to in the
Article is a “report” manufactured by New York Times reporters Adam Goldman,
Matthew Rosenberg and Maggie Haberman, well-known for spreading false statements
and defamation on behalf of anonymous “sources” at the FBI and State Department.

This is conspiracy theory fan fiction masquerading as a lawsuit.

There is basically no attempt to get over the actual malice standard necessary for any of this to be defamation of a public figure. The complaint tries to twist some minor potential inaccuracies into evidence of knowledge that the statements were false, but that is not at all supported by the complaint. It argues, ridiculously, that she should have known certain statements from Rep. Adam Schiff should not be trusted because Schiff and his staff “had an axe to grind against Plaintiff and a reason to lie.” What? That is not at all how the actual malice standard works.

This is yet another ridiculously weak complaint that is hard to see as anything other than yet another nuisance SLAPP suit from an incredibly thin-skinned Devin Nunes who has now sued multiple media outlets and reporters (not to mention a satirical cow). For all his talk about supporting free speech and being against the suppression of speech, these lawsuits suggest that no one in Congress is more engaged in the blatant suppression of speech than Devin Nunes.

Once again, these kinds of intimidation tactics by lawsuit are exactly why we need a federal anti-SLAPP law (and why Virginia needs to get its act together early next year and pass the anti-SLAPP bill it almost passed earlier this year).