A lawsuit against NBC Universal can proceed because the plaintiff plausibly alleged defamation, a federal judge has ruled.
Former Rep. Devin Nunes (R-Calif.) sued the company in 2021 after MSNBC host Rachel Maddow said on air that Nunes “accepted a package” from Andriy Derkach, a Russian national sanctioned by the U.S. government.
“Congressman Nunes has refused to answer questions about what he received from Andriy Derkach. He has refused to show the contents of the package to other members of the intelligence community. He has refused to hand it over to the FBI which is what you should do if you get something from somebody who is sanctioned by the U.S. as a Russian agent,” Maddow said later, questioning why Republicans had not removed Nunes as the top GOP member on the House Intelligence Committee.
Nunes said the statements were false, in part because the package was never opened, and in part because his office turned the package over to the FBI.
U.S. District Judge P. Kevin Castel sided mostly with NBC, but did find that the network may have defamed Nunes when Maddow claimed Nunes refused to hand the package over to the FBI.
“A reasonable viewer could plausibly understand the speaker to assert that Nunes ‘refused’ [to] turn over the Derkach package to the FBI. A reasonable viewer could conclude that such conduct is significantly more serious than what was suggested in the Committee proceeding,” Castel, a George W. Bush appointee, wrote in a 22-page ruling.
“A refusal to turn over the package to the law enforcement body tasked with investigating and enforcing the intelligence laws is factually distinct from declining to publicly answer questions raised in a public legislative proceeding, and could plausibly be understood by a reasonable viewer to suggest unlawful conduct on the part of Nunes. Because the assertion involving Nunes’s interactions with the FBI does not speak to the events of the Intelligence Committee meeting and ‘suggested more serious conduct than actually suggested at the proceeding,’ it does not fall within the fair report privilege,” Castel added.
Lawyers for NBC and Nunes did not respond to requests for comment.
NBC lawyers had argued that the statement about the FBI, even if false, was not defamatory because Maddow was sourcing from a declassified intelligence report and a House Intelligence Committee hearing that made clear Nunes received a package from Derkach and refused to share it with the “intelligence community.”
“That is indisputably true and privileged. Thus, even if Nunes did, in fact, turn the package over to the FBI, this alleged false statement carries no different defamatory sting than the true report that he received the package and refused to share it with other members of the ‘intelligence community,’ specifically his fellow members on the Intelligence Committee,” NBC lawyers said in an earlier motion to dismiss the case.
Steven Biss, representing Nunes, had disagreed, telling the judge that the statement about the FBI was false because NBC knew from prior reporting that the package had actually been turned over to the bureau.
Biss also said NBC and Maddow failed to contact known sources, such as House Intelligence Committee member Rep. Rick Crawford (R-Ark.), who had said as much.
Other Statements Protected
The other statements offered by Maddow were protected, Castel ruled.
While the first statement said that Nunes accepted a package from Derkach, and there is no evidence Nunes accepted the package, the statement is “substantially true” because the package was at least received by his office and addressed to him, Castel said. Previous rulings shield “substantially true” statements from defamation.
As for Maddow questioning why Nunes was still the top Republican on the House Intelligence Committee, her statement was one of “pure opinion” and therefore not actionable, the judge said.
Maddow’s claim that Nunes had refused to answer questions about the package was substantially true because he declined during the congressional hearing to answer questions about the package, the judge said.
Castel also found in favor of NBC with regard to Maddow’s claim that Nunes refused to show the contents to the intelligence community.
That statement was based on Nunes not making a disclosure to Rep. Carolyn Maloney (D-N.Y.), a member of the House Intelligence Committee. NBC said in its defense that a reasonable viewer would think the intelligence community would include the committee, even though the U.S. government’s definition of the intelligence community does not include the committee.
“A reasonable viewer encountering the statement would not understand the technical distinction between the government entities that formally comprise the intelligence [community] and the Intelligence Committee that is tasked with supervising those entities,” Castel wrote. “The speaker also asserted that Nunes ‘refused to show the contents of the package to other members of the intelligence community.’ A reasonable viewer would understand the speaker to be asserting that Nunes himself is personally a ‘member’ of the intelligence community and that the ‘other members’ included his Congressional colleagues.”