U.S. Rep. Devin Nunes, R-Calif., served The McClatchy Company with a $150 million defamation lawsuit Monday, four months after filing it in Albemarle County Circuit Court.
Charlottesville-based attorney Steven Biss filed the lawsuit in April on behalf of Nunes, alleging that McClatchy — which owns several newspapers across the country — conspired with Virginia political operative Elizabeth Mair to defame the Republican representative and interfere with his investigations into Hillary Clinton’s 2016 presidential campaign and Russian election interference.
The suit cites a May 2018 article from The Fresno Bee — titled “A yacht, cocaine, prostitutes: Winery partly owned by Nunes sued after fundraiser event” — that details a 2016 lawsuit filed against Alpha Omega Winery by a former employee who alleged she suffered civil rights violations, intentional infliction of emotional distress and sexual harassment while working a charity cruise.
Though Nunes, The Fresno Bee and McClatchy are all based in California and the fact that McClatchy does not operate any papers in Virginia, Biss argues the company distributes to the state physically, digitally and via broadcast.
Biss also cites McClatchy’s involvement with Moonlighting, a Charlottesville-based digital-jobs site, attaching a 2015 news release from McClatchy that calls the publisher a “strategic partner and investor in Moonlighting.” The company has confirmed it has an investment stake in Moonlighting but does not own any property in Virginia.
In an updated statement, the McClatchy Company billed Nunes’ lawsuit as “ill-founded” and “baseless.”
“As we emphasized in April, this lawsuit represents a baseless attack on local journalism and a free press,” the statement reads. “At a time when local journalism is facing more pressing and urgent challenges, the lawsuit is an unproductive distraction and a misuse of the judicial system.”
The statement also criticizes Nunes for not filing the lawsuit in California, where both the congressman and The Fresno Bee are located.
“Mr. Nunes has not once availed himself of this statute by demanding a published correction to any statement made about him,” the statement reads. “He did however find the time to produce a video and a 40-page mailer distributed to constituents attacking The Fresno Bee and its coverage of the Alpha Omega winery case.”
Nunes and Biss could not be reached for comment.
In a defamation case with a public official, the burden of proof is higher than for a non-public citizen. It must be proved that defendants intentionally and maliciously spread provably false information.
The lawsuit does not clarify why Albemarle County was chosen for the suit, but various legal experts have speculated it is because of Virginia’s laws.
Virginia, like California and several other states, has anti-Strategic Lawsuit Against Public Participation statute protections for journalists accused of defamation. Anti-SLAPP laws are intended to protect journalists and purveyors of news from being censored or intimidated through high litigation costs.
In April, Paul Levy, an attorney for the Washington, D.C.-based Public Citizen Litigation Group, said he suspected the lawsuit was filed in Virginia in an attempt to get around California’s anti-Strategic Lawsuit Against Public Participation statute.
Though Virginia has an anti-SLAPP statute, it isn’t as robust as California’s, he said.
“Unlike California, the Virginia statute does not create a special procedure for filing anti-SLAPP motions that require judges to determine the plaintiff’s probability of success,” Levy said. “The statute also does not guarantee the granting of attorneys fees for defendants who secure dismissals.”
No hearing dates have been scheduled yet.
The Albemarle County lawsuit is not the only one Nunes has filed in Virginia. On Friday, Henrico County Circuit Court will hold the first motions hearing for a $250 million lawsuit Nunes filed in March against Twitter and several of its users.
The suit alleges that Twitter “knowingly hosting and monetizing content that is clearly abusive, hateful and defamatory.”
The defendants in the case have made similar arguments to McClatchy, claiming that Virginia is not the proper venue to hear the case and Twitter’s terms of service require all suits against the company to be filed in its home state of California.