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The #YachtCocaineProstitutes hashtag trending on Twitter Tuesday portrays Rep. Devin Nunes as a bumbling media critic ramping up a legal assault on his local newspaper. But the California Republican’s underlying lawsuit shows how public figures can use the courts to attack news organizations for coverage they don’t like.
Nunes is suing the McClatchy Company, which owns 29 newspapers, for its reporting on an allegedly drug- and sex-filled party on a boat owned by a Napa Valley-based winery in which Nunes is a passive investor. Filed in a Virginia state court Monday, the defamation suit seeks $150 million in damages for what it says amounts to “character assassination.”
The lawsuit escalates Nunes’ war against The Fresno Bee — a metro newspaper near his district — which he alleges tried to “destroy his reputation” by reporting on a lawsuit filed by a server for the 2015 charity cruise. In her lawsuit — which was settled out of court — the server argued she was forced to work with men who were getting “fucked up” on cocaine and liquor and bragging about their exploits with sex workers, some of whom appeared “too young to consent to sexual activity.”
In his defamation suit in response to the Fresno Bee’s reporting, Nunes argues the media outlet “conspired” to push the narrative with Republican political strategist Liz Mair, who shared the article and other negative reports about Nunes on Twitter during his 2018 campaign. An outspoken critic of Nunes, Mair is named as a defendant in both the congressman’s lawsuit against McClatchy and a similar lawsuit he filed just weeks ago against Twitter.
The complaint filed Monday framed Mair’s criticism of Nunes, the Bee’s reporting on the yacht rager, and McClatchy’s promotion of the piece across several of its newspapers as a nefarious plot to “interfere with [Nunes’] Congressional investigation of corruption by the Clinton campaign and alleged ‘collusion’ between the Trump campaign and Russia during the 2016 presidential Election.”
Speaking to Fox News’ Sean Hannity, Nunes painted his new lawsuit against McClatchy as part of a broader legal offensive against political critics and media outlets that don’t carry his water.
“McClatchy is one of the worst offenders of this,” Nunes said. “But we're coming after the rest of them. I think people are beginning to wake up now, I'm serious — I'm coming to clean up the mess."
In a statement to VICE News, McClatchy spokeswoman Jeanne Segal called the lawsuit “wholly without merit, and we stand behind the strong reporting of The Fresno Bee.”
Proving “actual malice”
Defamation of public figures requires evidence of “actual malice,” or proof that a media outlet spreads false information knowingly or with reckless disregard for the truth. It’s a notoriously difficult standard to meet.
“Public officials in particular are tempted to use defamation laws to try and intimidate their critics,” said Gabe Rottman, a First Amendment lawyer with the Reporters Committee for Freedom of the Press. The actual malice standard, he added, “was put in place precisely because, in the 1960s, there was a wave of public officials using libel lawsuits — particularly with civil right lawsuits — against their critics.”
Nunes’ lawsuit argues that McClatchy’s publication of the stories across multiple properties, in print and online, meets the “actual malice” standard — a claim legal experts contested to VICE News. The suit also goes on to cite Nunes’ subsequent 2-minute TV ad in which he demands a retraction of the report and castigates The Fresno Bee as “fake news.”
And finally, the suit argues that McClatchy’s coverage of Trump and the investigations into Russian meddling in the 2016 election show how the newspaper chain gravitated toward “preconceived narratives” about Nunes’ involvement.
The Bee’s original story referred to Nunes as a “limited partner”— just one of fifty investors — in the firm that hosted the boat bash. The newspaper reported that his office did not return its requests for comment before publication.
Neither Nunes’ lawyer, Steven Biss, nor his spokesman, Jack Langer, immediately responded to VICE News’ request to further explain the case for actual malice.
“The two lawsuits Rep. Nunes brought are both very aggressive libel claims,” Rottman added. “They appear to be the type of lawsuit for which the Supreme Court proposed the standard of actual malice in the first place.”
Growing fear of lawsuits
Regardless of whether these lawsuits succeed, they can saddle cash-strapped media outlets — or in the case of Mair, individual critics — with huge legal bills. Gawker Media declared bankruptcy in 2016 after a lawsuit bankrolled by Silicon Tech billionaire Peter Thiel prevailed in its invasion of privacy case over the publication of Hulk Hogan’s sex tape. In perhaps the largest settlement of its kind in U.S. history, Disney paid $177 million in 2017 to settle a defamation case brought by a beef producer against ABC News.
The fear of defamation lawsuits has grown even more acute during the media industry’s financial struggles in recent years. In February, Supreme Court Justice Clarence Thomas argued that the Supreme Court should reconsider the landmark 1964 case, The New York Times v. Sullivan, that established modern standards around libel of public officials.
There’s also a growing fear in some corners of the media world that Trump’s anti-press rhetoric could trickle down to individual judges or juries, said Jane Kirtley, director of the University of Minnesota Silha Center for the Study of Media Ethics and Law.
“One way or another, it’s expensive to do investigative journalism — edgy journalism — especially in a time when we have extremely well-heeled plaintiffs who in some cases have declared that their goal is to put media companies out of business,” Kirtley said. “If you don’t have strong financial backing then it’s going to be impossible to pursue stories that might spark litigation.”
Disclosure: The lawsuit Rep. Devin Nunes filed Monday cites statements made to VICE News by Fresno Bee Executive Editor Joe Kieta.
Cover image: Rep. Devin Nunes, R-Calif., questions ousted IRS Chief Steve Miller and J. Russell George, Treasury Inspector General for Tax Administration, as they testify during a hearing at the House Ways and Means Committee. (AP Photo/Charles Dharapak)