The appeals court said most of the articles Lokhova claimed were libelous were too old to be included in the suit she filed two years ago. Under Virginia’s one-year statute of limitations for defamation claims, the only publications that were fairly subject to the suit were a Washington Post story and some tweets sent by MSNBC National Security Contributor Malcolm Nance.
The Post reported that at a 2014 dinner, Halper and a colleague “were disconcerted by the attention the then-DIA chief showed to a Russian-born graduate student…according to people familiar with the episode.”
Writing for the appeals court, Judge Stephanie Thacker said that language could not fairly be read as an attack on Lokhova.
“We conclude that it cannot be reasonably read to defame [Lokhova,] either directly or through implication or innuendo,” wrote Thacker, an appointee of President Barack Obama. “Even if we infer the unnamed graduate student is [Lokhova,] it says nothing of her behavior toward General Flynn – it only addresses his behavior toward her.”
Flynn and Lokhova have denied any affair.
Lokhova asserted that Halper was a source for the news stories. A former Republican political operative in the U.S., in recent decades Halper has been a University of Cambridge professor active in foreign policy circles. Halper hasn’t spoken publicly about his role in the Trump-Russia investigation, but numerous press reports say the FBI dispatched him to covertly contact Trump campaign adviser George Papadopoulos and assess reports that he had information about Russian-backed hacking of Democratic candidate Hillary Clinton’s emails.
In the new ruling, the appeals court also ruled that Lokhova’s claims against MSNBC over Nance’s tweets fell short because there was no indication Nance was acting for the network when he sent the messages Lokhova sued over.
Judge James Wynn, another Obama appointee, joined Thacker’s ruling in full. Judge A. Marvin Quattlebaum Jr. dissented on one point: he said one of Lokhova’s claims based on a hyperlink in a New York Times article should have been considered on the merits.
The district court and the majority on the appeals panel said simply adding a link wasn’t enough to constitute republishing a story and giving Lokhova another chance to sue over it. But Quattlebaum, an appointee of President Donald Trump, said the link to the earlier story did amount to a republication.
In his dissent, Quattlebaum even used the term “clickbait” to refer to the Times’ relatively common practice.
”Here, Lokhova has plausibly alleged that rather than using the hyperlink as a citation, The New York Times used it as a means of redistributing previous material with the goal of expanding its readership,” the judge wrote. Denying plaintiffs the ability to sue over hyperlinks, Quattlebaum wrote, “would effectively permit publishers to hyperlink their way to consequence-free promotion.”
Halper’s lawyers asked the appeals court to impose sanctions on Lokhova’s lawyer Steven Biss, a Charlottesville, Va.-based attorney who has drawn notoriety for filing a series of libel suits on behalf of Rep. Devin Nunes, (R-Calif.), now the ranking minority member of the House Intelligence Committee.
Halper’s lawyers said Biss’ handling of the Lokhova case violated bar rules. Thacker was sharply critical of Biss, saying: “His history of unprofessional conduct is long.” She declined to order sanctions though, saying the issue remained up to the district court.
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