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.

Filed Under: defamation, devin nunes, free speech, liz mair, steven biss, tweets, winery
Companies: fresno bee, mcclatchy, twitter