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Nunes defamation appeal denied by Virginia Supreme Court

Former California congressman Devin Nunes’ defamation lawsuit filed in Albemarle County regarding a story published in a California newspaper by a California newspaper chain, has been denied an appeal by the Supreme Court of Virginia.

Nunes’ suit charged that the McClatchy Co. — which owns several newspapers across the country, but none in Virginia — conspired with Virginia-based “center-right” operative Elizabeth Mair to defame the congressman and interfere with his investigations into Hillary Clinton’s 2016 presidential campaign and alleged Russian election interference.

The lawsuit was filed on behalf of Nunes, a former Republican congressman from California, by Charlottesville attorney Steven Biss in Albemarle Circuit Court in April 2019.

Though Nunes, The Fresno Bee and McClatchy are all based in California and McClatchy does not operate any papers in Virginia, Biss filed it in the county arguing that the company distributes to the state physically, digitally and via broadcast.

“This case involves McClatchy’s delivery to and publication of defamatory statements in Albemarle County and throughout Virginia, and the publication of false and defamatory statements by McClatchy and its agents and co-conspirators who were, at all relevant times, physically present in Virginia,” Biss wrote

McClatchy was later non-suited after the company filed for bankruptcy in July 2020. The complaint was dismissed against Mair following a hearing in June 2021. Nunes subsequently appealed the case to the Supreme Court of Virginia, which refused his petition for appeal.

“Upon review of the record in this case and consideration of the argument submitted in support of, and in opposition to, the granting of an appeal, the Court is of the opinion there is no reversible error in the judgment complained of,” the refusal reads. “Accordingly, the Court refuses the petition for appeal.”

Some legal experts have claimed that Nunes may have filed the lawsuits in Virginia in an effort to get around California’s anti-Strategic Lawsuit Against Public Participation statute.

Anti-SLAPP statutes are intended to protect journalists accused of defamation and libel from expensive lawsuits intended to censor content, experts said. Although Virginia has an anti-SLAPP statute, it isn’t as robust as California’s.

Similarly, some legal experts say Johnny Depp, an actor best known for his roles in the Pirates of the Caribbean franchise, may have filed his libel suit against his ex-wife Amber Heard in Virginia for similar reasons.

Depp’s lawsuit is currently in the midst of a trial in Fairfax County Circuit Court, near the offices of the Washington Post. The Post published an opinion piece written by Heard in 2018 which Depp claims falsely implied he physically and sexually abused her.

According to the Associated Press, last month a Fairfax County judge ruled that Heard can argue to a jury that she should be protected from a libel lawsuit because her op-ed deals with a matter of public interest.

Nunes’ Supreme Court of Virginia petition for appeal, filed Sept. 27, argued that the decision to grant dismissal in early stages of the lawsuit was improper. The petition argues that the county circuit court erred when it found that the statements published by Mair and her conspirators were not defamatory.

Following the Supreme Court’s March decision to dismiss the suit, h, Mair issued a statement in which she thanked the court for “upholding the First Amendment and my — and all Americans’ — rights of free speech.”

“I hope that this judgment will dissuade other government and political figures from attempting to use litigation as a cudgel to stifle free speech,” Mair wrote. “This lawsuit did not succeed in silencing me, and nor should lawsuits like it be allowed to silence other Americans exercising their God-given rights to free speech especially where they do so in an effort to hold their government accountable.”

The lawsuit and appeal both cited a May 2018 article from The Fresno Bee — initially titled “A yacht, cocaine, prostitutes: Winery partly owned by Nunes sued after fundraiser event“ — that details a 2016 lawsuit filed against Alpha Omega Winery, a California organization partially owned by Nunes.

In the suit, a former employee alleged she suffered civil rights violations, intentional infliction of emotional distress and sexual harassment while working a charity cruise.

The article did not claim Nunes was on board the cruise and clarifies that it is “unclear” whether he was aware of the 2016 lawsuit or the cruise. Alpha Omega Winery later settled the woman’s suit for an undisclosed sum, according to the article.

Accusations against Mair — who was also named alongside two anonymous Twitter users in a similar defamation lawsuit in Henrico County — were largely based on her reposting the “yacht” story. Nunes alleged a conspiracy existed between her, McClatchy and Fusion GPS, a commercial research and strategic intelligence firm not named as a defendant.

Mair was accused of providing “false narratives” and “egregious soundbites” to the newspaper reporter, who “simply republished [them] without fact-checking them.”


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