You may have noticed that California Congressman Devin Nunes is in the news. If you’re interested in a strange tale about Nunes, a tweet, the complexities of libel law and a fake cow, I’ve got a story for you.

Congressman Nunes is a particularly outspoken supporter of former President Trump and—like the former president—also a prolific defamation plaintiff. One of the more prominent suits that Nunes filed was against the anonymous authors of parody Twitter accounts purportedly written by mother (now replaced by his “Alt-Mom” after Twitter banned the original account) and a cow on his family’s farm. While claims against Twitter and a Republican strategist have been dismissed, the claims against the parody accounts persist.

Another libel suit targeted Esquire magazine, its publisher Hearst, and writer Ryan Lizza over an article published in print and online on Sept. 30, 2018. Titled “Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret” online and “Milking the System” in print, the article reported Nunes’s “secret” was that while he portrayed himself as a farmer to his constituents in California’s Central Valley, his family had sold the farm in California where Nunes grew up and had purchased and now runs a dairy farm in Iowa. The article also alleged that the Iowa farm employed undocumented workers.

Nunes’s lawsuit claimed that the Esquire article both defamed him directly by making false statements that hurt his reputation and also defamed him by implication, by implying that he was a hypocrite.

Nunes filed his lawsuit on Sept. 30, 2019. On Nov. 20, 2019, when Nunes got attention during a testy hearing during the House’s inquiry on whether to impeach Trump,  Lizza posted a tweet with a link to the Esquire article.  Lizza’s tweet stated: “I noticed that Devin Nunes is in the news.  If you’re interested in a strange tale about Nunes, small-town Iowa, the complexities of immigration policy, a few car chases, and lots of cows, I’ve got a story for you,” then included a link to the article.

Nunes subsequently added the tweet to his lawsuit.

In August 2020, a federal judge dismissed all of the claims in the lawsuit, based on both the Esquire article and the tweet. The judge held that the statements in the article that Nunes claimed were libelous were not defamatory as a matter of law, since they were not harmful to Nunes’s reputation and because many were statements of the author’s opinion, rather than statements of fact. The statements alleging that the farm employed undocumented workers, the court also held, were about Nunes’s family, not about Nunes. The court also dismissed the libel by implication claim, saying that there were statements in the article directly undermining the implications that Nunes alleged. And in a final, fatal blow to Nunes’ lawsuit, the court held that he had not shown that the article was published with “actual malice”—knowing falsity or reckless disregard for the truth—as required in cases brought by public officials.

As for the tweet, the court applied the widely-accepted “single-publication rule,” which holds that republication of an article—or, as in this case, a link to an article—does not in and of itself create a separate legal claim. “Publishing a link to an existing story,” the court wrote, “is not a republication of the story.”

Nunes appealed, and in a decision last month the federal Eighth Circuit Court of Appeals affirmed the dismissal of the claims stemming from the article, but reversed the dismissal of claims based on the tweet.

The appeals court actually disagreed with the trial court’s conclusion that the statements in the article were not defamatory. “We think,” the three-judge panel of the appeals court wrote in its ruling, “the complaint plausibly alleges that a reasonable reader could draw the implication that Representative Nunes conspired to hide the farm’s use of undocumented labor.” But in the end the appeals court affirmed dismissal of claims based on the article because Nunes had not shown that the defendants had acted with “actual malice.”

The tweet was a different matter. The appeals court held that because Lizza had posted the tweet after Nunes filed the lawsuit alleging defamation in the article, he knew that Nunes contested several statements in the article, and thus could have acted with “actual malice” in posting the tweet. The “single publication rule” did not apply, the appellate court held, because the tweet reached a different audience than the original posted article did. “Under those circumstances,” the appeals court wrote, “the complaint sufficiently alleges that Lizza republished the article after he knew that the Congressman denied knowledge of undocumented labor on the farm or participation in any conspiracy to hide it.” So it reversed dismissal of the claims regarding the tweet.

This is a troubling result for several reasons. One of the most obvious is that “actual malice” requires that a statement be made either with knowledge that it was untrue or in circumstances in which there were serious doubts as to whether the statement was or was not true. But this should be based on the actual statements made and the actual circumstances in which they are made, such as established facts and the credibility of a reporter’s sources. Allegations by the subject of the statement that a statement is false should not be enough, especially since subjects of embarrassing disclosures are almost always going to deny the truth of the allegations. Also, there’s not much of a basis for the appeals court saying that the tweet was directed at a different audience than the Esquire article, since both are directed at the general public.

But what’s even more troubling is that this ruling is likely to stand. The only route for appeal is to the United States Supreme Court. This is a longshot at best, since the Supreme Court, which can select most of its cases, hears less than one percent of the appeals it receives. Also, with some Supreme Court justices expressing a desire to reexamine established media law precedents such as New York Times v. Sullivan, which established the “actual malice” requirement more than 50 years ago, taking a defamation case to the court could result in a major upheaval in the defamation law that publishers—and tweeters—have come to rely on.

So unless there is a settlement (unlikely, I think), Nunes’s case against Lizza over the tweet will continue to trial. And hopefully the defendants will be able to refute Nunes’s effort to prove that the tweet was not posted with “actual malice,” regardless of its timing.

Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 20 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.