Devin Nunes Wants Libel Law To Work The Way It Did In The 18th Century

Earlier this month, two stories about Trump-ally Rep. Devin Nunes were published that he has claimed are slanderous.

Both articles were based on accounts from Lev Parnas, speaking through his legal counsel, alleging questionable conduct by Nunes in regards to his recent foreign travels.

The first report, from The Daily Beast, said that Parnas’s lawyer was alleging that his client had helped Nunes arrange meetings and phone calls throughout Europe in 2018 in order to help the Trump administration find “dirt” on Joe Biden, who could potentially become the Democratic nominee to run against President Donald Trump in 2020.

The second report, from CNN, alleged (again, through conversations with Parnas’s lawyer) that Nunes had met directly with Viktor Shokin, the former top prosecutor in Ukraine who had been ousted from his position after an international effort demanded he be fired for his corrupt activities (Biden was among those who made such demands when he was vice president).

Nunes was quick to suggest that the stories were libelous against him, describing them as much in an interview with Breitbart, New York Magazine reported. He also ranted against them on Fox News, though he wouldn’t say out loud that the reporting was inaccurate for dubious reasons.

When asked by Fox News personality Maria Bartiromo if he had met with Shokin or not, Nunes would not offer her a denial. “Because there is criminal activity here, I’m not going to sit here and try to compete against the media,” Nunes said. He did insist that criminal activity “very likely” occurred within the reporting, or that the media outlets were “an accessory to it.”

"Needless to say, that is not how libel law works. There is nothing stopping a person from denying a story they’re suing over."https://t.co/t43C2ELkDB via @intelligencer

— Crashing Bore (@simonosbore) November 25, 2019

That’s a very strange response — saying these stories were inaccurate wouldn’t do him any harm in a legal sense, and openly questioning their validity would actually be helpful for his image.

But there’s a deeper problem with Nunes’s comments: he purports that something libelous against him was written without appearing to say it was untrue.

Libel law in America, as it pertains to media, is very difficult to prove: a “wronged” party has to prove that there was “actual malice” in order to win in court — that is, that the news outlet in question acted in a way without regard for truth in reporting, intending to do harm to the subject of the article.

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CNN and The Daily Beast reported on what Lev Parnas’s attorney said. It could be wrong — the lawyer could be lying, or his client could be — but as long as both news agencies reported on the lawyer’s comments, and reproduced them in a truthful way, it’s still a news story with truth to it: the lawyer really did say those things, and the media reported on them.

What Nunes is seeking appears to be regressive in nature, when it comes to libel law. Rather than wanting to sue over actual malice, Nunes wants to sue over any reporting that casts him in a negative light — an ideal in American libel law that was the standard back when we were ruled by a king rather than democratically elected leaders.

In 1733, John Peter Zenger, a German immigrant and printer in New York, published articles about the corrupt actions of colonial Governor William Cosby. In that era, the crime of libel included any sort of criticism against the government or its leaders — and could result in imprisonment.

Zenger’s lawyer, Andrew Hamilton, a notorious attorney for his time, argued that the truth should be a defense against libel, a concept that was unheard of in the colonies. The jury agreed with him, going against the letter of the law and choosing to find Zenger not guilty of all charges brought against him. The case established a precedent in the colonies, and in the eventual United States, that a journalist or news outlet should not be charged with libel if what they print cannot be proven untrue.

Nunes appears to prefer that latter standard, however, as he doesn’t want to say outright that what was reported about him was untrue. But it would be a grave error if we went back to it — reporters should be held to a certain standard, but if what they report on is true, or if they report in an ethical manner, they shouldn’t be punished for doing so.

Nunes has a lot to answer for. His response has been to avoid answering it directly, and to blame the media for reporting on something that was told to them. It’s Nunes who’s in the wrong, not the news agencies he’s upset with.