The publisher of Esquire magazine is asking the U.S. Court of Appeals for the Eighth Circuit to reconsider its Sept. 15 panel ruling that the magazine published potentially defamatory statements about California Congressman Devin Nunes and his family’s dairy farm in Iowa.

In its motion for a new hearing before the three-judge panel or before the entire 11-member Eighth Circuit, Hearst argues that the ruling conflicts with an earlier Eighth Circuit decision on whether a Twitter post linking to a previously published article constitutes republication of a defamation.

Hearst also argues it is unlikely the Iowa Supreme Court would agree with the Eighth Circuit’s reading of Iowa law applied in this case because the Iowa court “has a 140-year-plus tradition of protecting comment on, or criticism of, persons who place themselves in the political arena or public eye.”  Hearst’s Oct. 13 motion urges the Eighth Circuit to pose a question to the Iowa Supreme Court of whether a hyperlink in a Twitter post constitutes republication.

An amicus curiae brief was submitted to the Eighth Circuit by 35 national and local media organizations and journalists in support of Hearst’s motion for a rehearing. [See On Brief’s summary of the Eighth Circuit’s Sept. 15 ruling here.]

Nunes sued Esquire and political writer Ryan Lizza saying a 2018 article he wrote for the magazine defamed him by falsely implying that Nunes conspired to hide the suggestion that the Nunes family’s dairy farm in northwest Iowa employs undocumented immigrants.

U.S. District Judge C.J. Williams dismissed Nunes’ complaint, holding that even if the article was defamatory as a matter of law, the complaint failed to plausibly allege that Lizza and Esquire acted with “actual malice” in publishing it. To prove actual malice, as defined by the U.S. Supreme Court in New York Times v. Sullivan in 1964, a public official or public figure must prove that an alleged defamatory statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

The Eighth Circuit agreed with the trial court that the complaint failed to state a claim of actual malice as to the original publication, but Eighth Circuit Judge Steven Colloton wrote in the majority opinion that Nunes states a plausible allegation that Lizza acted with actual malice by effectively republishing the original Esquire article by linking to it in a Twitter post after Nunes filed the defamation suit.

An inference of actual malice could result from republication, the Court of Appeals said, because that tweet was posted after Nunes filed his complaint denying the defamatory implication of the Esquire article, which put Lizza on notice that Nunes refuted statements made in the article.

Esquire argues the panel’s decision “defies settled law” and empowers censorship by public officials.

“If the panel’s decision stands, then once a public official denies reported facts or surmised implications (even obliquely or implicitly), a publisher must never again reference the challenged article, on pain of substantial cost and legal burden,” Hearst argues in its motion. “This turns New York Times Co. v. Sullivan on its head.”



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