Second Circuit Court of Appeals Upholds Devin Nunes Defamation Dismissal At CNN

Devin Nunes

A divided appeals court upheld the dismissal of a lower court donald trump allies Devin Nunes Defamation lawsuit against CNN over a story linking the then-Congressman to the then-President’s alleged efforts to obtain harmful information Joe Biden by Ukrainian officials.

Nunes, the former GOP congressman from California who now runs Trump’s social media platform truth socialShe had sued CNN after a 2019 story Reporting on the former Rudy Giuliani associate Lev Parnas was ready to tell Congress about meetings Nunes allegedly had in Vienna in 2018 with Ukraine’s Attorney General Victor Shokin. The story directly linked Nunes to alleged efforts to trick Ukraine into digging up dirt Joe Biden and his son Hunter Biden– Efforts that formed the basis of Trump’s first impeachment trial.

Nunes originally sued in federal court in Virginia, but a federal judge citing concerns about “form shopping” and noting that there was “no logical connection between the events in this case and this county.” transferred the case to New York.

Chief US District Judge Laura Taylor Swain dismiss Nune’s lawsuit in February 2021. Swain determined that California law should apply to Nune’s case because that’s where he lived and likely would have suffered the most damage to his reputation.

In applying California law, Swain also found that Nunes had failed to comply with the statutory requirement that a plaintiff alleging defamation must file a written request for retraction within a short time of publication. Nunes had not done so, and Swain decided he could not uphold his claim.

The District Court dismissed the lawsuit with prejudicewhich means Nunes cannot refile the claims.

On Thursday, the US Circuit Court of Appeals for the Second Circuit upheld the dismissal, without prejudice to Nunes’ claims of defamation and civil conspiracy.

“[W]We believe the District Court correctly held that in the circumstances set forth in this case, the Virginia Supreme Court would apply the substantive law of the state where the plaintiff suffered the greatest damage to reputation, on the assumption that a plaintiff without circumstances to the contrary, suffers the greatest harm in his state of residence,” the U.S. District Judges ruled MichaelPark and Wilhelm Nardinisaid both Trump appointees.

The judges rejected Nunes’ argument that New York law should apply, as that is where he believed the alleged defamation originated.

“The complaint says nothing about where the content was uploaded or where the relevant server was located, let alone that any of the events took place in New York,” the statement said. “On the contrary, the complaint alleges that ‘CNN published the CNN article. . . in Virginia and around the world” and that CNN is “a Delaware corporation headquartered in Georgia.”

US judge Steven Menashialso a Trump representative, broke with his colleagues and disagreed.

Menashi agreed with Nunes and would apply the “broadcast location” rule, writing that “no one disputes that the broadcast location was New York.”

Menashi also said that Nunes was correct in his factual claims that the most damage to his reputation occurred in Washington, DC, not California, and that should have been enough to survive a motion to dismiss.

However, the amended complaint alleges that CNN ‘willfully and unlawfully obstructs[ed] … [Nunes’s] Duties as a United States Congressman, including performing his duties as a senior member of the House Intelligence Committee during the impeachment investigation,’” Menashi wrote. “It is claimed that CNN aimed to ‘do maximum harm’ [his] Reputation… and to see that he is removed from the impeachment inquiry.’ The show and article focused squarely on the impeachment investigation that was taking place in Washington. The complaint shows the effect of the allegations on the impeachment investigation.”

CNN declined to comment on the verdict. Nunes’ attorney did not immediately respond to Law&Crime’s request for comment.

Read the statement and dissent here:

[Image via Mark Wilson/Getty Images]

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James Brien

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