Retweeting and Defamation: How Devin Nunes’ Lawsuit May Reshape Social Media and Journalism
Can retweeting a link to an article constitute defamation when the original publishing does not? A recent decision by the Eighth Circuit in Nunes v. Lizza.[1] suggests just that and has stirred controversy in the legal community.
Social media drastically changed how news is disseminated. An article can be shared, retweeted, and messaged around the world within minutes by thousands of different individuals. While this allows journalists to directly share insightful discoveries and breaking news with the public almost instantaneously, it also poses the risk of widely spreading misinformation.
Courts face new questions regarding the retweeting and reposting of false or defamatory statements. Traditionally, an individual who republishes false or defamatory statements is subject to the same liability as the original writer, and separate aggregate publications by the same individual can also constitute new publications.[2] For actual malice, the reporter must have knowledge that the statement is false or act with reckless disregard for the truth.[3]
In 2019, Representative Devin Nunes filed several lawsuits against news outlets and journalists.[4] Representative Nunes also expressed his dissatisfaction with the way the media portrayed his support of Trump.[5] The sheer number of defamation suits filed was seen by many as a way to silence his critics.[6]
This past September, the Eighth Circuit affirmed the lower court’s finding and rejected a defamation suit brought by Nunes against reporter, Ryan Lizza, and Hearst Magazine Media; however, the Eighth Circuit revived Nunes defamation claim for Lizza retweeting his original article.[7] The article concerned the representative’s family farm in Iowa.[8] The circuit court agreed with the trial court that Nunes failed to state a claim of actual malice with regards to the original publication of the article, but they found that Nunes had a plausible claim that Lizza acted with malice when he retweeted the same article.[9] The court reasoned that Lizza was “on notice of the article’s alleged defamatory implication by virtue of [the] lawsuit” when he retweeted a link to the same article, and thus he may have acted with reckless disregard for the truth.[10]
Legal scholars and news outlets alike strongly criticized the ruling and its implications.[11] The filing of a lawsuit puts the reporter on notice of just that, a lawsuit. It does not put the reporter on notice that the article contains falsehoods merely because the subject of the article denies statements made.[12] A plaintiff in a defamation case will inevitably, and by definition, deny the underlying statements made by the reporter. It’s unreasonable to assume that a journalist acts in reckless disregard of the truth merely when the subject of an article is unhappy. This is especially true, when a plaintiff, like Nunes, filed several of dismissed or dropped defamation suits against different journalists and news entities. This also raises questions for other twitter users who are aware that a lawsuit has been filed.[13] Do they now subject themselves to liability for retweeting an article that Nunes filed suit over?[14]
The Eighth Circuit’s ruling could pose a serious threat to journalists in the future. Especially when these tactics are used to silence criticism of an elected official. With the rapid development of social media platforms, courts will have to address what constitutes ‘republishing’ of information for a defamation suit. However, as of now the Nunes case remains an outlier and most courts have found than merely retweeting an article does not subject the individual to liability. The case is now back with the district court to address the retweet of the original article, and it will be interesting to see the outcome.
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