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DEVIN G. NUNES,
Defendants.
___________________________
TABLE OF CONTENTS
2. Actual Malice...............................................................12
4. Anti-SLAPP ................................................................17
1. Individual Statements......................................................22
V. CONCLUSION .............................................................................48
1
Plaintiff’s original complaint named Lizza and Hearst Magazines, Inc. as defendants. (Doc.
1, at 1). The amended complaint named Lizza and HMMI. The parties have not argued that
HMMI is different from Hearst Magazines, Inc., or that HMMI has not been served. (See Doc.
24, at 1 n.1). Thus, the Court will assume HMMI is a proper defendant here.
2
The Court will consider the Article as part of the record in ruling on defendants’ motion to
dismiss because it is necessarily embraced by plaintiff’s complaint. See Miller v. Redwood
Toxicology Lab., Inc., 688 F.3d 928, 931 (8th Cir. 2012) (citation omitted).
3
The “gist” or “sting” is often discussed as part of the defendant’s affirmative defense of truth.
See Hagar, 765 F.3d at 863; Smith v. Des Moines Pub. Sch., 259 F.3d 942, 947 (8th Cir. 2001);
Behr v. Meredith Corp., 414 N.W.2d 339, 342 (Iowa 1987). As discussed above, plaintiff is a
public figure, and the Article concerns issues of public concern. Thus, plaintiff must prove the
falsity of the “gist” or “sting” of the Article.
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11
12
13
4
Defendants refer to this as the Janklow/White rule, but the Court will refer to it as the
“subjective intent requirement.”
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16
5
SLAPP is an acronym for “strategic lawsuit against public participation.” De Havilland
230 Cal. Rptr. 3d at 631 n.4.
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18
19
20
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22
6
Plaintiff cites several cases discussing whether certain statements are defamatory per se. (Doc.
38, at 11-12; 14). Defamation per se is inapplicable against media defendants and thus irrelevant
here. See Johnson v. Nickerson, 542 N.W.2d 506, 511 (Iowa 1996) (“Actual damages can no
longer be recovered against a media defendant under a strict liability standard. Hence, in cases
against a media defendant, the distinction between libel and libel per se has become irrelevant.”
(citing Gertz, 418 U.S. at 347 n.10)).
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24
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26
7
In the context used in the Article, “baroque” means “characterized by grotesqueness,
extravagance, complexity, or flamboyance.” Baroque, MERRIAM WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/baroque.
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28
29
30
31
32
33
34
8
Plaintiff cites to another paragraph in his amended complaint as supporting his defamation by
implication claim (Doc. 38, at 18) (citing Doc. 23, at 11). This paragraph contains no factual
allegations or relevant explanation of the nature of plaintiff’s claim and is thus irrelevant to the
Court’s analysis.
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36
9
The phrase “politically explosive” is used in the caption under the title in both the online and
print version of the Article. (Docs. 34-2, at 2; 34-3, at 4).
10
Defendants describe the Article as having sixty-eight paragraphs. The Court counts sixty-six
paragraphs but excluded the caption beneath the title from its calculation. The minor difference
in the number of paragraphs has no bearing on the Court’s decision.
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38
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41
11
Plaintiff cites to one previous article by Lizza and a tweet by Lizza as evidence of Lizza’s
“extreme bias toward Plaintiff.” (Doc. 23, at 2). Plaintiff does not argue that this unrelated
article or tweet are evidence of actual malice (id., at 19-22), and it is not the Court’s job to
construct plaintiff’s argument for him. Horn v. Airway Servs., Inc., No. 18-CV-3053-CJW-
MAR, 2020 WL 420834, at *22 (N.D. Iowa Jan. 27, 2020). In any event, the Court has
reviewed the cited article and tweet. Even drawing all inferences in plaintiff’s favor, the Court
finds the cited items do not show an “extreme bias” toward plaintiff, and regardless, shed no
light on whether defendants subjectively doubted the truth of the Article.
42
12
Plaintiff cites Poulston v. Rock, 467 S.E.2d 479 (Va. 1996) for the proposition that evidence
that defendants were “out to get” him is evidence of actual malice. (Doc. 38, at 21). In Poulston,
the “malice” was in relation to punitive damages, not “actual malice” in the constitutional sense.
467 S.E.2d at 263. Thus, Poulston is not relevant here.
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47
_________________________
C.J. Williams
United States District Judge
Northern District of Iowa
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