Nunes v. NBCUniversal Media, LLC

Background

Devin Nunes, a former Member of the House of Representatives, brought one New York state-law defamation claim against NBCUniversal Media, LLC. The claim concerned three statements from a March 18, 2021 broadcast of The Rachel Maddow Show about a package addressed to Nunes from Andriy Derkach, whom the broadcast described as a Russian agent. Nunes alleged that the package was handled by his staff, delivered unopened to the FBI, and reported to the Attorney General on the day it arrived.

The three challenged statements said, in substance, that Nunes had accepted the package; had refused to answer questions, show the package's contents to other members of the intelligence community, and hand it to the FBI; and that Republicans' decision to keep him as the top Republican on the Intelligence Committee should be questioned.

NBCUniversal moved to dismiss under Rule 12(b)(6), which tests whether a complaint adequately alleges a legally valid claim. It argued that the statements were substantially true, protected by New York's fair-report privilege, statements of opinion, or unsupported by a plausible allegation of actual malice. For a public official or public figure, actual malice means publishing a statement knowing it was false or while recklessly disregarding whether it was false.

Rulings on the Statements

Statement One: accepting the package. The court dismissed the claim based on the statement that Nunes “accepted” a package from Derkach. Although Nunes alleged that he did not personally accept it and that a staff member delivered it to the FBI, his complaint also alleged that the package was addressed to him, was received by his staff, and was reported by him to the Attorney General. Comparing the broadcast's wording with the facts alleged in the complaint, the court concluded that the statement was substantially true and would not have produced a different effect on a viewer. The court therefore dismissed the claim based on Statement One.

Statement Two: refusing to answer, show, or deliver the package. The court dismissed the claim based on the first sentence, which said that Nunes refused to answer questions about what he received. Nunes's complaint itself alleged that he declined to respond to questions at a House Intelligence Committee meeting, so the statement was substantially true.

The court also dismissed the claim based on the second sentence, which said that Nunes refused to show the package's contents to other members of the intelligence community. The court concluded that a reasonable viewer would understand the reference in context as describing Nunes's failure to disclose the package's contents during the Committee proceeding. Any difference between the Intelligence Committee and the government organizations formally making up the intelligence community was a minor inaccuracy protected by New York's fair-report privilege.

The court did not dismiss the claim based on the third sentence, which said that Nunes refused to hand the package to the FBI. A reasonable viewer could understand that statement as asserting that Nunes refused to give the package to a law-enforcement agency. The court concluded that this could suggest substantially more serious conduct than Nunes's refusal to answer questions at the Committee meeting and was not protected by the fair-report privilege. The court also concluded that Nunes plausibly alleged that the statement was false and capable of injuring him professionally.

Statement Three: rhetorical questions about Nunes's committee position. The court dismissed the claim based on the statements asking how Republicans could keep Nunes as the top Republican on the Intelligence Committee. In the context of political commentary, the questions did not have a precise meaning, could not be proved true or false, and would not reasonably be understood as implying undisclosed facts. The court treated them as protected pure opinion rather than actionable factual statements.

Actual Malice

NBCUniversal separately argued that Nunes had not plausibly alleged actual malice regarding the statement that he refused to give the package to the FBI. The court rejected that argument at the dismissal stage. Nunes alleged that NBCUniversal and the program's host had access to reports indicating that the package had been turned over to the FBI, that the broadcast did not identify a source for the refusal allegation, and that the speaker or producers disregarded information confirming the package had been delivered.

The court noted that NBCUniversal relied on a Politico article that was not cited in the complaint or broadcast and therefore could not be considered on this motion to dismiss. The court also noted that a CNN article shown during the broadcast did not address whether Nunes delivered the package to the FBI. Accepting reasonable inferences in Nunes's favor, the court concluded that the complaint plausibly alleged knowledge of falsity or reckless disregard for the truth. It therefore denied the motion as to the third sentence of Statement Two.

Disposition

The court's conclusion stated that NBCUniversal's motion to dismiss was GRANTED as to Statements One and Three and the first two sentences of Statement Two, and DENIED as to the third sentence of Statement Two. The Clerk was directed to terminate the motion and the related letter-motion.