Devin Nunes Has Filed A Second Bullshit Defamation Lawsuit Telling You All About A News Article He Doesn't Want You To Read
from the has-devin-nunes-read-the-1st-amendment dept
It appears that Devin Nunes wants to become the new poster-child for filing bullshit SLAPP suits to silence and intimidate his critics. Just a few weeks after filing an obvious SLAPP suit against two satirical Twitter accounts, Republican strategist Liz Mair, and Twitter itself, Nunes is back in court again, suing news giant McClatchy and Liz Mair again. The first lawsuit was for $250 million. This one is for $150 million. Both are SLAPP suits that seemed designed to shut up his critics -- especially Mair. Nunes is represented by the same lawyer, Steven Biss, in both cases (Biss has, well, a colorful history).
The latest lawsuit is as equally ridiculous as the first. It is mostly about the very same article that was central to the first lawsuit, an article by The Fresno Bee (a McClatchy-owned newspaper), talking about how a winery that was partly owned by Nunes was involved in a scandal involving cocaine and potentially underage prostitutes on a yacht. The McClatchy article has (from its initial publication), made clear that Nunes' investment in the winery doesn't involve any role with the winery or any management functions:
"Rep. Devin Nunes is one of a few friends (Baggett) invited to invest in the winery in 2005. None of the investors has ever been involved with the management of the company. Robin is the sole managing partner and ultimate decision maker at Alpha Omega," Carter said.
The article has also always made clear that Nunes, as an investor, was unlikely to have any knowledge of the questionable activities associated with the winery:
Limited partners are only liable for the debts equal to their investment in the company, and typically have "little knowledge or participation in the activities of the partnership," according to the California Tax Service Center.
But you wouldn't know any of that from reading the lawsuit, which reads like a conspiracy theory.
Throughout 2018, McClatchy and its reporter, MacKenzie Mays, acting in concert with a Virginia political operative and her handlers, schemed to defame Plaintiff and destroy his reputation. The central purpose of the scheme was to interfere with Plaintiff’s Congressional investigation of corruption by the Clinton campaign and alleged “collusion” between the Trump campaign and Russia during the 2016 presidential election. Using the enormous power of McClatchy’s nation-wide resources, McClatchy and its co-conspirators relentlessly attacked Plaintiff both in print and digitally – falsely and maliciously accusing Plaintiff of horrible crimes and improprieties, falsely attributing to him knowledge he did not have, implying that he was involved with cocaine and underage prostitutes, and imputing to Plaintiff dishonesty, unethical behavior, lack of integrity, and an unfitness to serve as a United States Congressman. Defendants’ statements were knowingly false and grossly offensive. They evince a heedless, palpable and reckless disregard for the truth.
So, a few things about this. First of all, it's not true. As noted above, the article never even came close to implying he had knowledge of the cocaine and underage prostitutes -- and flat out said the opposite was likely true. It's a fascinatingly stupid strategy to make claims in your defamation lawsuit that are literally contradicted in the article you're suing over.
As lawyer Max Kennerly points out, the lawsuit is so stupidly bad, that it claims that the McClatchy reorter, Mackenzie Mays, "chose to emphasize the words "woman," "Devin" and "cocaine." Except, that's not true. The only reason those words are highlighted is because that's how Twitter's search function works. If you search for certain words, Twitter shows them to you in bold. It was not the original tweet. Here's the way it's shown in the lawsuit, with those words bolded:
Here's the actual tweet, which shows those words are not bolded:
And... here's how that very same tweet appears if you search on Twitter for "woman, devin, cocaine":
In other words, it sure looks like Nunes and/or Biss just did a search on "woman, devin, cocaine" and stupidly assumed that because Twitter bolded the search terms, that Mays herself had done so in her tweet. This is stunningly stupid.
And that's not all that this lawsuit gets so incredibly wrong. The lawsuit repeats over and over again that the article suggested Nunes "was involved" in the event on the yacht, even though the article explicitly states otherwise. In trying to claim that people took the Fresno Bee article to mean that Nunes was involved with the party, it points to a reporter from NBC News, Kasie Hunt, saying that "the defamatory meaning of the article was clearly understood by all who read and saw McClatchy's publication," and then uses Hunt's tweet as proof that people took the article to mean Nunes was involved. Except the very tweet by Hunt that is included in the lawsuit flat out states that "Nunes is totally uninvolved in day to day decisions."
In other words, Nunes' complaint's own "evidence" that readers took the article to mean that Nunes was involved literally disproves that by saying he was not involved.
There are some later claims that suggest the original Fresno Bee article had inartfully worded a sentence regarding another controversy at the winery, involving selling wines to Russian clients, in manner that could confuse some readers about the timing of those sales. Specifically, the article originally stated: "Nunes ties to Alpha Omega made national headlines last year because it was discovered the winery sold wine to Russian clients while the congressman was at the helm of a federal investigation of Russian meddling into the presidential election...." The inartful wording is that this sentence could be read to suggest that the wine sales happened while Nunes was helming the investigation. But it could also be read (accurately!) to suggest that the "national headlines" about this story came about while he was helming the investigation. The Fresno Bee later made a few edits to clarify that sentence. Writing a poorly written sentence which could have multiple interpretations (none of which would actually be defamatory) is not defamation. The lawsuit even claims that the Fresno Bee editing that sentence to clarify it without adding an editor's note is somehow "perpetrat[ing] a fraud on its readers."
Other claims are equally bizarre. The lawsuit says that when the Fresno Bee's exec editor, Joe Kieta, stated that the paper "had never had to issue a retraction on its coverage of Nunes," that was "deceitful" because of the clarifying edit discussed above. The lawsuit really tries to claim that a clarifying edit is somehow proof of nefarious intent, rather than just a confusingly worded sentence which can easily be read in two different ways, which the paper quickly changed to clarify.
As for this second attempt at suing Mair, the lawsuit again makes bizarre claims:
Prior to March 19, 2019, Mair’s username on Twitter was “BrandValue$4B”. After Plaintiff filed suit against Mair and others in the Circuit Court for the County of Henrico [Nunes v. Twitter et al., Case CL19-1715], Mair changed her username to “BeingSuedByDevinNunes”. Mair is a political operative and a digital terrorist for-hire. Her job on behalf of her benefactors is to target the opposition, carry out smear campaigns in coordination with third-parties in Virginia and elsewhere in the United States, and, in the process, to create extreme negative publicity for the targets, in this case Plaintiff. Mair is conscious that Twitter is an echo-chamber. She intentionally changed her identity on Twitter to exploit Plaintiff’s name solely to obtain more followers and to maliciously increase the audience, scope and breadth of her false and defamatory statements.
It takes quite a lot of chutzpah to (1) file a bogus SLAPP suit against a critic, and then (2) file a second such SLAPP suit against the same person and argue that her calling attention to the first bogus lawsuit is itself "malicious."
Most of the other claims in the lawsuit are equally bizarre. It argues that the Fresno Bee's Editorial Board suggesting that Nunes should have responded to questions about the yacht/cocaine/prostitutes story is "defamatory by implication." It says that other Fresno Bee stories by Mays about ethics complaints filed with the Office of Congressional Ethics (about Nunes' investment in the winery) were defamatory as well. The lawsuit literally states that "McClatchy had no business republishing the ADLF ethics complaint." It says similar things about other such complaints, including arguing that they were "total shams." Apparently Nunes thinks that he's allowed to dictate McClatchy's editorial policies and that no one is allowed to even write about ethics complaints if Nunes personally deems them to be shams filed by "left-wing" or "left-leaning" groups.
Remember, this is the same Congressman who just a few weeks ago voted for a House Amendment about how free speech should be supported. And now he's suing for $400 million over some critics.
The lawsuit also asks for an injunction ordering "McClatchy to deactivate all hyperlinks to all online articles and all tweets, retweets, replies and likes by McClatchy or any of its agents that contain false and defamatory statements about Nunes." Except, tons of defamation case law have made it clear that such an injunction is unconstitutional. And while there are a few courts that have recently tried warming to the idea of injunctions around defamatory content, they are not that widespread, and the injunctions tend to be very, very limited. For the most part, though, defamation cases can't get injunctions -- just monetary damages.
Either way, this is another SLAPP suit and another attack on free speech by Nunes. If Virginia actually had a strong anti-SLAPP law, one would hope that Nunes would end up on the hook for the legal fees here. Unfortunately, while Virginia recently updated its anti-SLAPP law, it doesn't act the way most anti-SLAPP laws act -- pausing the expensive parts of the lawsuit, and it doesn't require that the plaintiff in the SLAPP suit pay the legal fees of the defendant (though, it does allow the court to decide to award attorneys' fees -- so it's still a possibility).
Still, Devin Nunes, as a sitting Representative in Congress, who has taken an oath to defend the Constitution, is making a total mockery of the First Amendment of the Constitution in suing his critics for clearly protected free speech.
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Filed Under: defamation, devin nunes, free speech, liz mair, steven biss, tweets, winery
Companies: fresno bee, mcclatchy, twitter
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He really is trying to replace Babs as the goto for drawing more attention to what he wishes he could keep hidden.
Hey on the upside, since he is suing in various locations that make no sense, other than maybe toothless laws, perhaps this is all just a stunt to show how we need the Federal Anti-SLAPP law he was championing.
Or he is just a think skinned dickhead...
whatever works.
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That depends on what he's actually after here.
I'm willing to forego Hanlon's Razor and suggest that his real goal here actually is to call attention to these stories. In much the same way that Jerry Falwell wasn't really concerned about being defamed by Hustler, he just wanted something he could point to to say "look what these evil people are doing to me" and pass the collection plate.
Nunes is feeding a victim narrative here. That victim narrative gets him support, including campaign donations.
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My first thought was that for someone supposedly 'innocent' he was objecting pretty damn strong via clearly bogus lawsuits, indicating that he might not be as uninvolved as the article would imply, but upon reading your comment I think you may have hit on the real reason, that of playing the victim for sympathy(and more importantly money) by filing nice public lawsuits he can point to to show how unfairly he's being treated, and won't someone think of the poor politician?
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The Nunes Effect...the Streisand Effect meeting Prenda Law's view of the legal system.
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I have to wonder: Who is bankrolling his lawsuits? Because I cannot imagine him spending his own money to go this hard at his critics.
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Absolutely no question he expects the good state of California to pay all of his legal bills since they directly result of his work as a congressman.
Hopefully everyone in his district tells him to fuck off and makes him pay them himself.
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To be honest, I can kind of see where he's coming from on this. Sure, the article made sure to carefully say that there's no evidence that he was involved in any of the illegal dealings, but if he's not relevant to the story, why mention him at all?
Mentioning a person in connection with heinous dealings, even if you clearly say there's no reason to believe that the person was personally connected to the heinous dealings, still creates that association between them in the reader's mind. A month later, someone might not remember the exact details of the article, but they'll remember "Deven Nunes was involved with that winery with the cocaine and the underage prostitutes."
It's a very well-understood bit of human psychology that people have used for political dirty tricks for ages, especially since it puts the victim in a bit of a catch-22: if you do nothing, that association is out there in people's minds, and if you deny it, they have an excuse to say "look, don't you see where we clearly said you weren't involved? What are you getting so worked up about? Are you maybe hiding something? Maybe you weren't so not-involved afterall, if you're making such a fuss about it!"
The phrase used here, "defamatory by implication," is a pretty apt term to describe it. Honestly, knowing nothing about the situation at all except for what I read in this article just now, I don't think this is as meritless as Mike does.
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Cool, except none of that is defamation.
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It's called false-light defamation, falls under invasion of privacy. No outright lie is required.
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No, it isn't; false light invasion of privacy is similar to defamation but they're not the same thing.
Not for false light, but a false statement is a requirement for defamation. Truth is an absolute defense against defamation.
And false light doesn't apply to public figures. Such as congressmen.
I can't see the screenshots. Is false light even mentioned in the suit?
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As noted in the article, it specifically disclaims involvement by Nunes, which protects against false light defamation claims, because false light defamation requires implication, which the article specifically disclaims.
That Nunes is an investor is notable in part because of past scandals involving the winery (Including violating Russian sanctions while Nunes was part of investigating Russia) and continues the activism to suggest he should divest from such a low performing, scandal riddled asset.
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It disclaims nothing other than day to day company management. As for the specific incident giving rise to the story, it is notably silent.
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"if he's not relevant to the story, why mention him at all?"
Well it's nice to know that a sitting congressman is friends with people that are into hookers and blow.
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It's almost as if the public is free to decide whether or not a person's associations matter, and free to talk about those associations without fear of legal repercussions! Well I never...
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Sure, the article made sure to carefully say that there's no evidence that he was involved in any of the illegal dealings, but if he's not relevant to the story, why mention him at all?
Being an investor is relevant. I'm sure if Jeff Bezos was the investor, conservatives would be smearing shit all over themselves in an attempt to plaster that correlation all over the Internet.
Perhaps he should have better investment "friends." After all, sometimes you're judged by the company you keep.
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Congratulations! Now you understand exactly why the lawsuit got filed!
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Except that none of those connections are deformity. And by specifically disclaiming involvement, false light defamation no longer applies.
That the Scandal-Ridden winery that violated Russian sanctions while Nunes was involved in Russian Investigations is owned by Nunes has attached his name to the winery in the local news (That he is invested in it is now more famous than the actual name). That the winery is also potentially involved with child trafficking "charities" will bring his name up again. It then spends a lot of time telling everyone that Nunes is not involved in the business, would in general never be involved in the business, and would definitely not been involved with the charity cruise, because these things are a factor in the local area where the reporting occurred due to the wineries famous association. The False Light Defamation only occurs when you assume the article would not be read, but given that Nunes is famously connected to the winery, that false light could just as easily have occurred if they didn't say his name.
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So he can protect left-leaning candidates from right-wing nutjob smear campaigns?
Or because he has shitty friends, and only now realizes what that means?
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Sorry the truth hurts bro. By the way you gonna throw another shit fit like you did with you buddy Gavin the not so proud boy? Can you let me know now so I can block of my afternoon to watch you get you ass handed to you again?
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Which statement, specifically, do you think is defamatory?
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No he just doesn't want to face the fact that he made bad choices in friends and investments.
If he really doesn't want to be associated with the winery he has the choice of selling his ownership there. Or he can just accept that he can't control the consequences of any actions he takes.
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Additionally, The winery has been involved in numerous scandals, including violating Russian sanctions in 2016 and it's interesting he maintains the low return investment ($5K/year) rather than divesting.
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Yes, you've said that three different times now, dood! I think we get it already!
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While the "actual malice" standard does include "implied false facts" as a criterion for defamation, what you're describing doesn't fall under that definition. Implying false facts doesn't mean writing something that a hypothetical reader misremembers a month later. If the article says "Devin Nunes wasn't involved" and a reader misremembers a month later and thinks it said exactly the opposite of that, that's not defamation.
This isn't the first time you've said something like this. If both this suit and the Proud Boys suit are dismissed or decided in favor of the defendants, will you perhaps reevaluate your knowledge of defamation law and place greater trust in Mike's interpretation when similar stories inevitably appear in the future? He may not be an expert, but as the subject of ongoing frivolous defamation litigation, I expect he's spent a lot more time talking to lawyers about this particular topic than the rest of us have.
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It's weird how every time you come along to defend a bullshit libel lawsuit, it's one filed by a right-wing hack or a GOP politician - and every time, you take pains to insist you know nothing else about the situation or the people involved.
It's almost as if you know perfectly well that this is about defending your ideological and political allies, not about any sort of genuine interest in free speech or sophisticated understanding of the law, and you hope to deflect that criticism pre-emptively.
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As I said the last time someone brought up this same nonsense argument, that's because, for whatever reason, it seems like every time we see this sort of thing discussed on Techdirt, it centers around a right-wing figure. If I saw articles on here about the same thing happening to people on the left, my arguments would be exactly the same, because it's not about the politics to me at all; it's about the principle.
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Considering that Techdirt has written many articles about the stupid things left-leaning politicians do, what does that tell you about the right?
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Umm... what?
Considering that the one has nothing to do with the other, it tells me nothing useful in the context of this conversation.
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It tells you that at this moment we have many politicians on the right that are finally showing their true selves. That they are idiots and hypocrites.
I'm sure in a few more years several of the new left-leaning politicians in office will finally give up trying to hide their true selves and you will see their dirty laundry too.
It's hard to keep up lies in the long term. Which is why it's best to just state the truth in the first place than hide things hoping they never come to light.
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What it mostly tells me is that at the moment, Republicans are in power (mostly; certainly more than Democrats are) and so are currently more likely to do things that abuse that power.
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You're so transparent we can see your MAGA knee pads right through you.
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How about Stormy Daniels' libel lawsuit against Trump?
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Yes? What about it?
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Does it ever irk you that people get paid to carry water for these idiots, and you do it for free? Or is it like a badge of honour that you can stick on your proud boys members only jacket?
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Curious for your thoughts on it
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for whatever reason, it seems like every time we see this sort of thing discussed on Techdirt, it centers around a right-wing figure
Well, to be honest - Republicans are simply bigger pieces of shit, and suck at avoiding criminal or questionable activities.
More fuck ups = more stories about them.
If you want to see less stories, perhaps stop electing douchebags like Devin Nunes.
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Yup - it seems to be a derivative of the both sides bullshit.
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And how many times to you begin a comment with a statement like this then go off-rails contradicting the article!
Maybe you should do a little more research before deciding that somebody else is wrong in their interpretation of the events as reported.
Remember the Proud Boys article, you pulled the same BS as here.
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"Devin Nunes, as a sitting Representative in Congress, who has taken an oath to defend the Constitution, is making a total mockery of the First Amendment of the Constitution in suing his critics for clearly protected free speech."
I guess the oath means nothing to them, just a bunch of words.
Meanwhile, many others are burdened with NDAs, anti-compete, forced arbitration followed by law suits when they get uppity.
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Ridiculing litigants, often by practicing attorneys who are officers of the court, is a very questionable practice, and could constitution intimidation under 18 USC 1513, which is a felony punishable by up to twenty years in federal prison.
There are cases where private litigants are outright harassed by practicing lawyers who, hopefully, will one day lose their law licenses for this conduct. Usually what the lawyers do is have supposedly disconnected third parties do their dirtywork, but the dots are very easy to connect.
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Well then why don't you use your vast superior knowledge over the rest of us and show us exactly where and how the dots connect?
You keep talking about it, so at this point it is time to put up or shut up!!
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Re: That’s beyond sad crybaby jhon.
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Usually what the lawyers do is have supposedly disconnected third parties do their dirtywork, but the dots are very easy to connect.
Careful, sometimes those dots turn out to be nothing but flecks of spittle on the monitor. I'm not saying that this is always the case, but it might be worth double-checking... triple-checking, if the connector lines have been drawn with feces or blood.
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Mike -- The Russian collusion story from its outset was political smear. The weapons of mass distraction in the desert after a collapse in political power. In hindsight the claims levied, unsourced and theatrical, were completely unhinged and lead the public astray. The last two years are a field littered with retractions and wild insane claims that never panned out.
This is a time for revisiting what lead outlets to publish claims so far off the mark as post-mortem to make sure sustained inaccuracies are never quite so inaccurate again. At minimum revisit the incorrect narratives sufficient to dispel false notions still out there. Most retractions have been footnote after weeks of incorrect reporting. McClatchy and the majority of the media made their bed, laying in it may point the way toward return to ethics in journalism. A good thing.
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None of that is defamation.
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Da good comment fellow amerikanski. I too think like collusion Russian story is bad borscht.
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[Asserts facts not in evidence]
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What an awsome job title
Digital Terrorist For-Hire. Wouldn't that look great on a CV.
Have smartphone, will travel.
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I'm not a lawyer, so I could very well be wrong here - but isn't this far closer to actual, you know, defamation ... than any behavior of Mair's referenced?
Would Mair have any justification or standing in a countersuit to ask on what basis they are calling her a "digital terrorist-for-hire"?
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No. It's clearly rhetorical hyperbole. No reasonable person familiar with the speaker and the context would mistake that for an accusation that Mair is guilty of literal terrorism.
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... bummer. I would think that defamation suit might could have got somewhere.
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Re: Terrorist activity in Republican eyes
Are you sure? «Georgia sues Carl Malamud, calls publishing state laws "terrorism"»
https://boingboing.net/2015/07/24/georgia-suing-carl-malamud-ca.html
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There is also something called litigation privilege...you can't be sued for what's said in legal filings.
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It's funny (funny strange, not funny haha) that you can commit ACTUAL defamation in a bogus defamation lawsuit and not get called on it. What Nunes lawyer has stated in his complaint is far past the pale compared to what is alleged, even if it were true (and it's clearly not to anyone with two brain cells).
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Is that why they do it .... huh
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Obviously a cheap-shot hitpiece designed to discredit Nunes, and perhaps to sway his next election by exploiting low-IQ voters. But that's how politics and journalism exist these days: a literal cesspool of distortion, dirty tricks, and subterfuge. (though in retrospect probably an improvement over the "gentlemens' agreement" era when politicians had plenty to hide but no one dared expose them)
It's a good thing that mutual fund investors are not public information, or millions of innocent people could be linked to all sorts of horrible misdeeds on an ongoing basis, not unlike the way Nunes was cherrypicked for smearage out of the many dozens of nameless investors.
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Because he is a fucking United States congressman!!!! He should be under the most scrutinizing microscope as possible as he has the power to create legislation that can affect millions upon millions of people, most of whom never even voted for him.
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Re: The shill is strong with this one
So is yo boy nunes the grapefruit fucker, hiring local havkcomment writers or did he outsource to his friends at the Internet Research Agency? Second did you get a bonus for working “low iq voters” in or is that a must run?
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Don't worry, Nunes discredits himself just fine.
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You do not really believe that.
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by exploiting low-IQ voters
Republicans would've voted for him anyways.
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Except that the article LITERALLY said he had nothing to do with it. So how can you smear someone if you say they weren't involved?
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The article said no such thing. What it did say is that the individual was not part of the day to day management of the winery. It made no such disclaimer of what happened with regard to the cruise of investors.
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Did Patrick Zarelli get a job with Devin Nunes and we not hear about it?
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It is a source of great shame that I live in the district that elected this cockwaffle.
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You would have our sincerest condolences if your district could figure out how to un-elect this bovine taint.
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Perhaps this is revelatory toward the Rethugnican zeal to remove all environmental regulations. The more lead found in the water, the more likely that generations will be raised, who are stupid enough to 1) continue voting Rethugnican, 2) vote for idiots like Nunes, and 3) believe without question anything and everything these idiots feed their constituencies. Rule of the idiots, by the idiots, for the idiots! How's that for a conspiracy theory?
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Admittedly, fake news fox is basically doing everything that he is complaining about but he isn't going to sue them because of tribalism.
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McClatchy and its co-conspirators attacked Plaintif digitally
‘McClatchy and its co-conspirators relentlessly attacked Plaintiff ... digitally”
Now there’s an image. And no wonder he’s so outraged.
It might be tough to prove in court. I would think McLatchy will easily show that it has no fingers.
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