The U.S. Court of Appeals for the Eighth Circuit Tuesday denied the publisher of Esquire magazine’s request for rehearing of its Sept. 15 panel ruling reversing in part a district court decision dismissing California Congressman Devin Nunes’ defamation suit against the company.
Hearst Magazines Inc., the publisher of Esquire, had sought rehearing before the three-judge panel that heard the case, or before the full 11-member Eighth Circuit. Both requests were denied in a one-page order issued Tuesday. [For more background on this case, see our earlier posts here and here.]
Nunes sued Hearst and political writer Ryan Lizza in the U.S. District Court for the Northern District of Iowa, claiming a 2018 article Lizza 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 in publishing it Lizza and Esquire acted with “actual malice” as defined by the U.S. Supreme Court in New York Times v. Sullivan (1964).
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 stated 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.
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. The court denied the motion from the amici for permission to file the brief, citing Eighth Circuit Rule 29A(a), which says: “The court will prohibit the filing of or strike an amicus brief that would result in the recusal of a member of the panel to which the case has been assigned or in the recusal of a judge in regular active service from a vote on whether to hear or rehear a case en banc.”
It is not known for sure which judge or judges might have had a conflict with one or more of the amici based on the Court order. Tuesday’s order said Judge David Stras of Minneapolis “did not participate in the consideration of this matter.” Stras was not a member of the three-judge panel that heard the original Nunes appeal. In addition to Judge Colloton, that panel included Eighth Circuit Chief Judge Lavenski Smith and Ralph Erickson.
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