Rep. Devin Nunes’s famously futile use of the legal system to silence criticism took an unexpected turn on Wednesday, as a federal appeals court revived the defamation suit against journalist Ryan Lizza already dismissed at the district court level. “Although we agree that there are insufficient allegations of express defamation, we conclude that the complaint does state a claim for defamation by implication as to a republication of the article,” the Eighth Circuit Court of Appeals ruled. If the appeals court’s ruling stands, “the suit would be returned to a district court judge for further proceedings,” Politico reports.
The Trump-aligned lawmaker in 2019 unsuccessfully tried to sue Lizza, now at Politico, and Esquire over an article Lizza wrote a year earlier about the dairy owned by Nunes’s family. A month after the suit was filed, Lizza tweeted out a link to the original story. Nunes claimed the journalist libeled him by retweeting the article after he had sued over it and denied its allegedly defamatory implication. That claim, along with every other he leveled against Lizza and the magazine’s publisher, was dismissed by a district judge, according to Law and Crime. But on Wednesday, the appellate court said “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” and “sufficiently alleges that Lizza republished the article.”
Legal experts were baffled by the decision that, if it stands, could bring Nunes’s tossed suit back from the dead. “What was originally not actual malice now all of a sudden is, at least plausibly enough for a lawsuit to advance to further costly litigation. All over a tweet that changed nothing about the original story,” Texas Christian University professor Chip Stewart told Politico, adding on Twitter that the ruling is “a mind-bending interpretation of libel law as it applies to social media.” Wednesday’s decision “appears to open the door to lawsuits against anyone who tweeted or retweeted the original story with knowledge of Nunes’s lawsuit,” according to Politico, noting it may also inspire “similar claims over members of the public or those with significant social media followings tweeting or retweeting stories after learning that the subject of the story is disputing it in some way.”
The ruling seemingly encourages Nunes’s penchant for taking his critics to court—he has sued CNN, a Republican strategist, Twitter, and a satirical account pretending to be his mother, among others—behavior that has prompted First Amendment concerns in the past. The appellate court’s move may also have concerning implications for journalists going forward. “If the panel’s ruling is allowed to stand, people who share articles that have been the subject of defamation lawsuits may be held liable if a plaintiff can adequately show that the person who shared the article had knowledge of the lawsuit’s existence,” Law and Crime reports. “In a way, the decision okays gag orders—an intentional kill switch on an article after a lawsuit is filed,” Fordham Law Professor Matthew Schafer tweeted.
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