stories filed under: "devin nunes"

Devin Nunes Files Another SLAPP Suit; Sues The Washington Post Again

from the suppressing-speech dept

Wed, Nov 18th 2020 3:28pm — Mike Masnick

Devin Nunes is one of the most vocal supporters of Parler, regularly insisting that he supports Parler because Parler supports free speech (of course, as we've highlighted, Parler blocks users quite frequently, contrary to its marketing claims). Of course, Nunes is a free speech hypocrite. As we've highlighted over the last few years, he seems to have an itchy trigger finger when it comes to suing the media and various critics for their free speech, in a variety of SLAPP lawsuits -- with no clear answer yet on who is actually paying for these lawsuits designed to stifle and suppress free speech.

Earlier this year, Nunes sued the Washington Post and reporter Shane Harris in the Eastern District of Virginia. That case was was transferred to the federal district court in DC where it continues to move forward (slowly). Now Nunes, with his regular lawyer Steven Biss, have sued the Washington Post yet again, this time with reporter Ellen Nakashima. Once again, it was filed in the Eastern District of Virginia, meaning that the Washington Post is likely to go through the same process again to try to transfer the case to the DC court.

Like so many Nunes/Biss SLAPP suits, this one is... bad. At issue is the news from right after the election that a Trump loyalist and former Nunes staffer had been made the NSA's General Counsel apparently over the objections of the NSA's own director. This has raised a bunch of alarms for a variety of reasons -- and is seen as evidence that for all of the bullshit talk of "the deep state" being out to get Trump, he's spending his last couple months in office trying to construct his own deep state.

It was Ellen Nakashima at the Washington Post who broke the story of the Ellis appointment, and that's the article that Nunes is now suing over. The lawsuit -- somewhat laughably -- argues that two sentences in the article are defamatory. Neither are defamatory. These are the two sentences:

“In March 2017, [Michael Ellis] gained publicity for his involvement in a questionable episode involving Nunes, who was given access at the White House to intelligence files that Nunes believed would buttress his baseless claims of the Obama administration spying on Trump Tower”

“News reports stated that Ellis was among the White House officials who helped Nunes see the documents — reportedly late at night, earning the episode the nickname ‘the midnight run.’ [Three White House officials tied to sharing of intelligence files with Devin Nunes]

The filing nitpicks at both of these statements, but has a difficult time alleging false statements of fact, which is kind of necessary for there to be defamation. For example, with that second statement while the WaPo article talks about the alleged midnight run, Nunes first says it "never happened." But then almost immediately admits that he did, in fact, go to the White House -- it just wasn't at night. Whether or not the meeting was at night or "when the sun was out," as Nunes claims, is not defamatory. Even more to the point, the WaPo article highlights that its citing "news reports" and that the nighttime aspect of the meeting was "reportedly" what happened, and noting (accurately) that others have referred to this as "the midnight run." In other words, the article appropriately hedged those points and highlighted that it was covering what others were saying.

And then there's this: even though the Washington Post was basing this statement on "news reports" Biss/Nunes tries to argue that those news reports somehow don't count, because they were from the NY Times which is "well-known for spreading false statements." I kid you not.

Upon information and belief, one of the “News reports” referred to in the Article is a “report” manufactured by New York Times reporters Adam Goldman, Matthew Rosenberg and Maggie Haberman, well-known for spreading false statements and defamation on behalf of anonymous “sources” at the FBI and State Department.

This is conspiracy theory fan fiction masquerading as a lawsuit.

There is basically no attempt to get over the actual malice standard necessary for any of this to be defamation of a public figure. The complaint tries to twist some minor potential inaccuracies into evidence of knowledge that the statements were false, but that is not at all supported by the complaint. It argues, ridiculously, that she should have known certain statements from Rep. Adam Schiff should not be trusted because Schiff and his staff "had an axe to grind against Plaintiff and a reason to lie." What? That is not at all how the actual malice standard works.

This is yet another ridiculously weak complaint that is hard to see as anything other than yet another nuisance SLAPP suit from an incredibly thin-skinned Devin Nunes who has now sued multiple media outlets and reporters (not to mention a satirical cow). For all his talk about supporting free speech and being against the suppression of speech, these lawsuits suggest that no one in Congress is more engaged in the blatant suppression of speech than Devin Nunes.

Once again, these kinds of intimidation tactics by lawsuit are exactly why we need a federal anti-SLAPP law (and why Virginia needs to get its act together early next year and pass the anti-SLAPP bill it almost passed earlier this year).

Filed Under: 1st amendment, defamation, devin nunes, ellen nakashima, free speech, slapp, steven biss, virginia
Companies: washington post

Devin Nunes Asks Appeals Court To Invalidate Bedrock Supreme Court 1st Amendment Ruling

Free Speech

from the protect-and-defend-the-constitution dept

Thu, Oct 8th 2020 10:40am — Mike Masnick

A year and a half ago, Supreme Court Justice Clarence Thomas indicated that he thought that NY Times v. Sullivan was wrongly decided. This is perhaps the most important 1st Amendment ruling from the Supreme Court ever, and establishes the "actual malice" standard for defamation of public figures. There's more to it than this, but the ruling basically says that for it to be defamation of a public figure, whoever is making the statement should more or less know that the information they're passing along is false. It's a high standard, but that's in order to protect the 1st Amendment. Unfortunately, Thomas seems to think that it's time to revisit the issue:

We should not continue to reflexively apply this policy driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.

Of course, if we go back and "carefully examine the original meaning of the First and Fourteenth" Amendment, it's possible one could conclude that all of defamation law violates the 1st Amendment in suppressing speech (the 14th Amendment part just extends the 1st Amendment restrictions beyond Congress to state laws as well). But still, as we discussed at the time, this was surprising from Thomas, as there seems to be basically no interest anywhere else in revisiting the NYTimes v. Sullivan ruling. It's not like other instances where you have a bunch of people itching to revisit old cases.

The question, then, is whether or not anyone would take up Thomas's publicized desire to revisit this standard. And apparently he's found a taker in... Rep. Devin Nunes. As you'll recall, Devin Nunes has been filing a series of SLAPP suits against the media and his critics. The cases haven't been going well for him at all. A couple of months ago, a judge easily tossed out one of Nunes' cases. This one, filed in Iowa (a state without an anti-SLAPP law) against Esquire magazine and reporter Ryan Lizza over a great article, "Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret.

As the judge pointed out, nothing in the complaint alleges anything possibly defamatory.

The statements at issue also do not assert provably false facts, nor do they imply the existence of undisclosed facts. The statements that plaintiff has a secret, hid or concealed his family’s move, or conspired with others to hide the move do not have “precise core meaning for which a consensus of understanding exists.” ... There is no precise meaning for how many people can know a fact for it to remain a “secret” nor is there an accepted line between “hiding” or “concealing” a fact and simply declining to publicize it. Likewise, in this context there is no precise meaning of “conspiracy.” For the same reasons, the challenged statements are not “objectively capable of proof or disproof[.]”...

Nunes and his lawyer, Steven Biss, have since appealed that ruling to the 8th Circuit appeals court (first noted by Nunes' hometown Fresno Bee, whose parent company Nunes is suing in a different case). The full appeal is not yet public (for reasons I don't understand it shows in the docket, but is not available to download). What is available, however, is a Designation and Statement of the Issues, which at least details what Nunes will be arguing in the appeal. And the key point? They're attacking the NYT v. Sullivan standard:

1. Did the District Court follow the proper standard in evaluating Nunes’s amended complaint or did the District Court view the amended complaint in a light most favorable to the Defendants?

2. Is New York Times v. Sullivan, 376 U.S. 254 (1964) good law? Does the United States Constitution require public figures to satisfy an actual-malice standard in state-law defamation suits? Should Sullivan be reconsidered and overturned?

3. Did the District Court err in applying Sullivan in this case?

4. Did Nunes plausibly allege that the Defendants published the Article with actual malice?

Those are the first four of 14 issues with the other issues basically saying that even if Lizza's articles don't state any defamatory facts, Nunes wants the court to say that "rhetorical questions" in the article "imply the existence of defamatory facts." All of this seems unlikely to be successful. Extremely unlikely.

In general, courts will avoid dealing with deeper constitutional questions, especially when cases can be dealt with in a more straightforward manner, and this case can be (and was) easily dismissed because nothing in the article is a defamatory statement of fact. And, of course, it's not for an appeals court to tell the Supreme Court that its earlier ruling was "bad law." Of course, the goal here seems to be to get the Supreme Court to revisit NYT v. Sullivan, as Thomas as suggested is necessary. So, chances are they know this is a loser in the appeals court, but are hoping that they can then appeal it to the Supreme Court later. That... also seems unlikely to work. While Thomas has indicated he's interested in revisiting this standard, it would be surprising if any of the other Justices agree. And it seems likely that the entirety of the media industry would blow its lid if this issue was up for revisiting at the Supreme Court.

But, really, this is quite telling. Nunes seems to think that he -- a public elected official -- should not have to face mean comments about himself. That's ridiculous. He's a public official. He should grow a thicker skin, not try to destroy the 1st Amendment because his ego can't take people highlighting his family trying to quietly hide the fact that they moved their farm from California to Iowa.

Filed Under: 1st amendment, 8th circuit, actual malice, clarence thomas, defamation, devin nunes, esquire, free speech, nyt v. sullivan, ryan lizza, steven biss

Devin Nunes Is Still Suing A Satirical Cow & A Political Consultant, But Judge Rejects Attempt To Bring Twitter Back

Free Speech

from the will-it-ever-end? dept

Fri, Aug 14th 2020 10:44am — Mike Masnick

Back in June, we wrote about how a judge had sided with Twitter in the very first of Rep. Devin Nunes' long series of frivolous SLAPP suits, saying that the company was clearly protected from lawsuit by Section 230 and that it did not need to reveal the identity of the two satirical Twitter accounts who had mocked Devin Nunes so mercilessly that he decided to ignore his oath to protect the Constitution (which, last I checked, still includes the 1st Amendment) and sued.

Some assumed that this was the end of the lawsuit. It was not. First of all, the lawsuit against the two satirical accounts (one claiming to be Devin Nunes' cow and one claiming to be Devin Nunes' Mom) along with political consultant Liz Mair, were still alive and kicking unfortunately. But also, Nunes is still attempting to bring Twitter back into the case. He has filed a proposed amended complaint that his lawyer -- the ever ridiculous Steven Biss -- argues should get around Section 230 and make Twitter a party to the lawsuit. And... just as I originally finished writing this story, Judge John Marshall rejected that attempt. At around the same time, Liz Mair has filed her attempt to get the case against her dismissed in both this case, as well as in the second case Nunes filed against her.

Let's start by looking at the proposed amended complaint. As "amended complaints" go, following a judge completely dismantling your legal arguments, this is... not very amended. Indeed, I scrolled through both the original and the amended complaint and they appear to be identical, page for page (if there are any changes, they are so minor as to be cosmetic, and I couldn't see any), right up until the very, very end. While the original complaint had five claims (negligence, defamation per se, insulting words, common law conspiracy, and injunction), the new one has... six. After it includes the identical (as far as I can tell) first five claims, it adds in a sixth: "aiding and abetting." This is Biss's weak ass attempt to bring Twitter back into the case and get around Section 230:

Twitter aided and abetted the defamation of Nunes, the violations of § 8.01-45 of the Code, and the conspiracy by Mair, Mair Strategies, @DevinNunesMom and @DevinCow. It is, therefore, jointly liable for those torts....

Twitter actively participated in, aided and abetted Mair, Mair Strategies, @DevinNunesMom and @DevinCow’s intentional torts by (a) knowingly hosting and monetizing the abusive, hateful and defamatory content – providing both a voice, exposure to a massive audience and financial incentive to the defamers – thereby material contributing to the defamation, (b) using its algorithms and targeting capabilities to surreptitiously and deceptively shadow-ban Nunes, impeding his speech, and, thereby, amplifying the defamation of Mair, Mair Strategies, @DevinNunesMom, @DevinCow and others, (c) intentionally abandoning and refusing to enforce its Terms of Service and Twitter Rules against Mair, Mair Strategies, @DevinNunesMom, @DevinCow and others who post defamatory statements about Nunes with the express purpose to facilitate the defamation, (d) completely ignoring lawful complaints about offensive content and by allowing that content to remain accessible to the public and to be republished, (e) by permitting its platform to be populated and used by bots whose sole purpose it was/is to republish the false and defamatory statements by Mair, Mair Strategies, @DevinNunesMom, @DevinCow and others who post defamatory statements about Nunes, (f) by selectively encouraging defamation of Nunes in order to further a left-wing political agenda, to undermine public confidence in Nunes and to benefit his opponents and opponents of the Republican Party. In this case, Twitter contributed materially to the illegal conduct of defamers Mair, @DevinNunesMom and @DevinCow. Twitter provided a “public square” for these Democratic political operatives. Twitter intended to generate and proliferate the false and defamatory statements about Nunes in order to influence the outcome of the 2018 Congressional election and to intimidate Nunes and interfere with his important investigation of Russian involvement in the 2016 Presidential Election. Twitter used its platform, including its proprietary algorithms, selectively to convey its corporate/institutional viewpoint, its position on issues and candidates for office, such as Nunes, to influence the outcome of elections, such as the 2018 election for California’s 22nd Congressional District, and as a dumping ground for opposition research.

This is... not how any of this works. At all. You can't just ignore Section 230 by claiming a website "aided and abetted" the bogus other claims you're arguing.

And thus it did not take long for Judge Marshall to reject this in a short letter -- not even getting at the ridiculous amended complaint, but rather pointing out that Biss is just bad at his job and filed his request for leave to amend way too late:

The Plaintiff in oral argument on the motion to dismiss referenced leave to amend to file an amended complaint even though there was no notice of hearing filed for that to be heard on June 12, 2020. The Plaintiff did not file a motion for leave to amend to add a count against Twitter until July 28 four days after the order had been entered dismissing Twitter from the case and over a month after Plaintiff had been notified of the dismissal of Twitter by the court's opinion letter.

The court denies Plaintiff's request for leave to amend as the dismissal of Twitter as a defendant occurred prior to the filing of a motion for leave to amend.

In other words, as will be no surprise to regular readers of this saga, Steven Biss is bad at his job.

As for Mair, she is trying to (quite rightly) get out of both of the nonsense SLAPP suits that Nunes has filed against her, and her arguments in both cases is the legal equivalent of "WTF is this, I don't even..." but in legalese.

First, many (if the "statements" addressed in the Complaint consist only of hyperlinks or editorialized descriptions, rather than the exact words of the alleged defamatory statement. Count II must be dismissed as to each and every one of these statements: "Good pleading requires that the exact words spoken or written must be set out in the declaration in knee verba. Indeed, the pleading must go further--that is, it must purport to give the exact words." ... Particularly in a case brought by an elected official against private citizens who dared to challenge his qualifications for office, the core requirements of defamation law must be respected.

Then her lawyer points out that even if Nunes had shown defamatory statements by Mair, which he has not, he hasn't shown actual malice (which means that Mair knew they were false, or said them with reckless disregard to whether or not they were true), which is the required standard for defamation of a public figure. The actual malice standard -- for very good reason -- is where many vexatious SLAPP suits go to die:

As the Virginia Supreme Court has recognized, "the burden of proving 'actual malice' is upon the plaintiff[,] who must demonstrate by clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubt as to the truth of his statement."... This demanding standard applies with full force even where criticism "include[s] vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."...

The Complaint fails that standard. Its allegations of "actual malice" are conclusory and thus inadequate.... This deficiency is not cured by Rep. Nunes's repeated allegations that Mair harbored "hate[]," "disdain," and "ill will" towards him...

In fact, the Complaint's non-conclusory allegations defeat an inference of actual malice.... Most of Mair's allegedly defamatory statements were based directly on news reports and court filings whose truth Mair had no reason to doubt.... There is thus no valid basis to infer that she acted with a "high degree of awareness of probable falsity."

And then, of course, there's the other reason why most SLAPP suits from angry, insecure, brats tend to fail: what they got mad about is usually someone's opinion. As it was here.

Here, many of the alleged defamatory statements by Mair rank as opinions. Those include (but are not limited to) declaring that Rep. Nunes is "a clown with big league ethical issues," calling him "Dirty Devin," deeming controversial use of PAC funds to be "a legal problem, not just an ethical or optics-related one," stating that Rep. Nunes should be held accountable for "having voted for warrantless wiretapping and unlimited surveillance of Americans' emails ([including] Carter Page's)," and stating that Congress should "prioritize review of Rep. Nunes' investment and involvement in the Alpha Omega Winery, and the facts reported by the Fresno Bee." None of these statements can be described as objectively "true" or "false." Each is a subjective opinion and thus shielded by the First Amendment.

That conclusion is confirmed by context. Mair was commenting in the political arena about the news of the day, and "[p]otentially defamatory statements" that are "made during the course of an ongoing public controversy" are "likely to be understood to be rhetorical opinion" rather than "assertions of fact." Judge Robert D. Sack, 1 Sack on Defamation: Libel, Slander, and Related Problems.... If Rep. Nunes is allowed to hold citizens liable for expressing political opinions, then Americans throughout the Nation will face legal peril as they engage in democracy.

There's a lot more in the response but those are the key points on the defamation claims. The other claims are just silly add-ons that are just attempts to add emphasis and try to get around the obviously bogus defamation claims. I will note the dismantling of the "conspiracy" claims is particularly fun:

In his efforts to establish a conspiratorial agreement, Rep. Nunes relies mainly on allegations that three of the Defendants tweeted about similar subjects and occasionally retweeted or liked each other's tweets.... But if that were the standard, millions of Americans would be shocked to learn that they are enmeshed in all manner of conspiracies. It would not comport with the First Amendment of the US. Constitution--or Article I, Section 12 of the Virginia Constitution--to treat routine political speech on social media as a coordinated plot.

Mair does try to make use of Virginia's (unfortunately weak, though hopefully soon to change) anti-SLAPP law. The argument in the satirical tweets lawsuit also includes the fact that Nunes appears to have sued Mair over the same basic points in his second SLAPP lawsuit (the one against McClatchy and Mair) saying that he's trying to get two shots at this same issue in separate courts -- and says it's "improper claim splitting."

In the filing to get out of that other case, Mair notes that this time she's only being sued for an alleged conspiracy, which is also utter nonsense:

This lawsuit is a direct assault on the freedom of speech. Devin Nunes (a Member of Congress) has sued Liz Mair (a private citizen) for tweeting articles critical of his conduct while in public office--and for sharing an opinion critical of him with a reporter at McClatchy.

Nunes does not allege in this case that Mair committed defamation. Instead, he seeks to hold Mair liable for allegedly defamatory statements published by McClatchy. To do so, he posits that Mair somehow entered into an illegal conspiracy with McClatchy. But the most essential element of any conspiracy claim is an agreement--a meeting of the minds--to carry out unlawful acts together. And the Complaint comes nowhere close to adequately alleging the existence of such a conspiratorial agreement: it fails to allege the requisite details about when, where, and how this agreement supposedly came into being; it papers over those defects with conclusory assertions; and it resorts to exceedingly unreasonable inferences from a mere handful of factual allegations. Simply put, sharing political opinions with a newspaper--and then tweeting, retweeting, and liking relevant articles by that newspaper--do not suggest the existence of an illegal conspiracy. They are signs that we live in a democracy where people can express political opinions and criticize elected officials on social media platforms. For good reason, no court has ever upheld a conspiracy theory--based mainly on tweets and retweets--like the one that Nunes has advanced here.

That is reason enough to dismiss the Complaint. Yet there is more: in order to impose liability on Mair for allegedly conspiring with McClatchy to defame him, Nunes must adequately allege that McClatchy actually defamed him. None of the alleged defamatory statements described in the Complaint, however, are actually defamatory: most of them are not pleaded with their exact words and so must be dismissed; Nunes has failed to allege that any of them was published with actual malice; and most of them are categorically non-actionable as a matter of law.

It is ridiculous that these cases have gone on this long and are still continuing. For what it's worth the @DevinCow account has a GoFundMe campaign set up for its legal fees, and Mair is accepting funds via her Swamp Accountability Project page.

One hopes the judges in these two cases recognizes how insane all this is and benchslaps Nunes and Biss.

Filed Under: 1st amendment, anti-slapp, defamation, devin nunes, devin's cow, free speech, liz mair, satire, section 230, slapp, steven biss
Companies: twitter

Judge Rejects Devin Nunes' SLAPP Suit Over The Esquire Article He Really, Really Doesn't Want You To Read

Free Speech

from the have-you-read-it-yet? dept

Thu, Aug 6th 2020 10:44am — Mike Masnick

A federal judge has happily dismissed one of Devin Nunes' many SLAPP suits. This isn't much of a surprise given what the judge had said back in May regarding Nunes' Iowa-based SLAPP suit (reminder: Iowa has no anti-SLAPP law) against Esquire Magazine and reporter Ryan Lizza. The lawsuit was over this article that Devin Nunes really, really doesn't want you to read: Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret. Reading that will make Rep. Devin Nunes very, very sad.

Back in May, the judge made it clear that he didn't think there was much of a case here, but gave Nunes a chance to try to save the lawsuit. As you can already tell, his lawyer, Stephen Biss, has come up empty in his attempt. The court easily dismisses the case with prejudice. First, the judge goes through the various statements that Nunes/Biss claim are defamatory and says "lol, no, none of those are defamatory."

The statements at issue also do not assert provably false facts, nor do they imply the existence of undisclosed facts. The statements that plaintiff has a secret, hid or concealed his family’s move, or conspired with others to hide the move do not have “precise core meaning for which a consensus of understanding exists.” ... There is no precise meaning for how many people can know a fact for it to remain a “secret” nor is there an accepted line between “hiding” or “concealing” a fact and simply declining to publicize it. Likewise, in this context there is no precise meaning of “conspiracy.” For the same reasons, the challenged statements are not “objectively capable of proof or disproof[.]”...

The context of defendants’ statements also weighs in favor of being protected opinions. The context of the publication includes the “social context” of the publication, which includes the style of writing and the intended audience.... The Article is written in a first-person perspective and includes numerous instances of Lizza’s subjective mental impressions. This weighs against the statements being reasonably construed as statements of fact as opposed to Lizza’s characterizations or opinions.

Incredibly, the ridiculous, performative, hyperbolic language that Biss employed in the lawsuit -- calling Lizza a "left-wing political journalist, well known for his extreme bias towards Plaintiff" comes back to bite Nunes in this case:

The context also includes “public context or political arena in which the statements were made.”... Plaintiff alleges that Lizza is a “left-wing political journalist, well known for his extreme bias towards [p]laintiff.” .... At the time defendants published the Article, plaintiff was a sitting Republican congressman running for re-election.... In this public context, the Court must construe the Article in light of this nation’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” ... Accepting plaintiff’s allegations as true, any reasonable reader would construe the Article in light of Lizza’s well know political bias. Thus, any reasonable reader would understand defendants’ use of terms like “secret” or “conspired” as the type of hyperbole that is to be expected in the political arena rather than an insinuation of fact.... In this public context, no reasonable reader could construe Lizza’s statements as facts rather than opinions.

Nunes would have lost either way, but it's hilarious to see the ridiculous, over-the-top language his lawyer used come back directly to bite him.

Also, the judge points out that Lizza's articles support the conjecture that Nunes is so upset about all this pretty strongly:

Finally, the statements at issue cannot be construed as implying undisclosed defamatory facts because Lizza disclosed the basis for his conclusions. As to the statements that plaintiff’s family’s move was a “secret” or was “concealed,” the Article states that Lizza was unable to find any mention from plaintiff or the press in plaintiff’s district mentioning the move.... The Article also mentions a Wall Street Journal editorial which discussed plaintiff’s family’s dairy farm and featured a Tulare, California dateline.... Nothing in the context of the Article otherwise implies that defendants’ characterization is based on any other undisclosed facts.

Similarly, as to the conclusion that plaintiff and others conspired to hide the move, the Article points to two specific instances that support the statement. First, the Article notes that plaintiff appeared at a town hall with Congressman King in a town fifty miles from Sibley. The press release for the event did not mention plaintiff’s family ties to the district, and instead stated that plaintiff’s “family has operated a dairy farm in Tulare County, California for three generations.” ... Second, the Article discusses how the Dairy Star article about NuStar mentioned several members of the Nunes family, but omitted plaintiff.... Nelson told Lizza he omitted plaintiff at plaintiff’s family’s request.... These facts show the basis for defendants’ conclusion that plaintiff and others “conspired” to hide plaintiff’s family’s move, but do not imply the existence of other facts. The reader is “free to accept or reject [defendants’] opinion based on their own independent evaluation of the facts.”

As for the statement in the article about Nunes trying to discredit the Russia investigation and "protect[ing] Donald Trump at all costs, even if it means shredding his own reputation and the independence of the historically nonpartisan committee in the process" is deemed rhetorical hyperbole:

This statement is a protected opinion for two reasons. First, the statement is “rhetorical hyperbole” and is thus protected by the First Amendment. In, Adelson v. Harris, 774 F.3d 803, 807 (2d Cir. 2014), the court held that statements that plaintiff’s money was “dirty” and “tainted” was non-actionable rhetorical hyperbole protected by the First Amendment. Terms like “battering ram,” “at all costs,” and “shredding” are similar rhetorical hyperbole as well.

Second, this statement also has no “precise core of meaning for which a consensus of understanding exists” and thus is not objectively capable of proof or disproof..... There is no core meaning about what it means to use a committee as a battering ram, protect someone at all costs, or shred one’s own reputation. Even if these terms had a precise meaning, plaintiff has not explained how such statements could be proved or disproved. Plaintiff argues these statements “accuse Plaintiff of abusing his position as Chairman of the House Intelligence Committee, obstruction of the Russia investigation, prejudice, impartiality and unethical behavior.” .... Plaintiff fails, however, to identify any provably false facts implied by the Article that would lead to these conclusions. Also, for the same reasons discussed in the previous section, the context of defendants’ statements, particularly these statements about issues of fundamental public importance, must be construed as opinions entitled to protection in the context of political debate concerning a public official.

Another statement -- regarding Nunes' family selling their California dairy farm and moving to Iowa for a new farm -- the judge notes that Nunes made no effort to claim that this statement is false, even though it was listed as one of the defamatory statements in the lawsuit:

Plaintiff has not alleged that any aspect of this statement is false, nor does plaintiff’s brief articulate how this statement is defamatory. Plaintiff appears to admit the statements to the extent it alleges that plaintiff’s parents, brother, and sister-in-law currently live and work in Sibley, Iowa.... Regardless, nothing about this statement is defamatory. None of the facts about plaintiff’s relation to various individuals and their real estate transactions tends to harm plaintiff’s reputation. As a matter of law this statement is not defamatory.

One by one the judge rejects each and every claimed defamatory statement for reasons like these. Another one gets rejected because it's about Nunes' family, not himself. Another for being "substantially true." Basically just as we said when this suit was filed, none of this is even remotely defamatory.

Biss tried to get around the fact that none of the actual statements are defamatory by arguing that the article as a whole implied defamatory things and... that's not how any of this works. And the judge knows that.

Plaintiff fails to state a claim for defamation by implication for two reasons. First, no reasonable person could draw plaintiff’s asserted implication from the Article. Second, even if a reasonable person could draw the implication, there is no indication that defendants intended or endorsed the implication.

He also suggests there are "defamatory inferences," and again, the judge points out that the article does not support this claim:

Reading the entire Article in context, no reasonable reader could reach plaintiff’s alleged implication because the Article negates those implications. The Article states that plaintiff “has no financial interest” in NuStar. ... The Article also makes clear plaintiff is not involved in managing NuStar. ... (noting that the Dairy Star article stated that NuStar was managed by Anthony Jr. “with his son and wife” and noting in the next paragraph plaintiff is not mentioned anywhere in the Dairy Star article). No reasonable reader could understand the Article to imply the exact opposite of its text, i.e. that plaintiff had some financial or managerial interest in NuStar.

Likewise, no reasonable reader could read the Article to imply plaintiff conspired with others to hide NuStar’s use of undocumented labor. The Article is clear the conspiracy was “to hide the fact that [plaintiff]’s family sold its farm and moved to Iowa[.]” .... Similarly, no reasonable reader could find the “politically explosive secret” referenced in the title of the Article is NuStar’s use of undocumented labor. The Article states “[s]o here’s the secret: The Nunes family dairy of political lore—the one where his brother and parents work—isn’t in California. It’s in Iowa.” ... Given these express statements, no reasonable reader could infer that plaintiff was involved in a conspiracy to hide NuStar’s use of undocumented labor.

Then after all of that, the court also notes that Nunes failed to show actual malice, which, of course, is necessary in defamation cases involving public figures. And, as a reminder, "actual malice" does not mean "he didn't like the guy." It has a very specific meaning: that the statements were made knowing they were false or with reckless disregard for whether it was false or not. And, as the judge notes, there was no evidence to support this at all.

The cases plaintiff cites in support of his argument highlight the factual insufficiency of his complaint. For example, plaintiff asserts defendants acted with actual malice because they failed to observe journalistic standards, conceived of a storyline in advance and sought to find evidence to confirm that story, and relied on unreliable or biased sources in researching the Article.... These allegations, however, are “naked assertion[s]” devoid of “further factual enhancement,” and “labels and conclusions,” that fail to plausibly assert actual malice....

[....]

The Court will not reiterate every factual deficiency in the amended complaint, but some examples are illustrative. Plaintiff alleges defendants “relied on sources, including anonymous and unnamed persons, they knew were wholly unreliable and had an axe to grind against Plaintiff and his family.”... Plaintiff does not identify the sources, what axe the sources had to grind with plaintiff, or any factual basis from which the Court could plausibly find that defendants’ sources were unreliable or that defendants knew or should have known they were unreliable. To the contrary, the Article itself refers to two unnamed, but not anonymous, sources who had firsthand knowledge of NuStar’s use of undocumented labor.... This is fundamentally different than the cases upon which plaintiff relies. See Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 315 n.10 (5th Cir. 1995) (noting that evidence of an ulterior motive can “bolster an inference of actual malice,” and citing specific facts about the relationship between the parties from which the jury could have found that defendant made defamatory statements with actual malice); AdvanFort Co. v. Mar. Exec., LLC, No. 1:15-cv-220, 2015 WL 4603090, at *8 (E.D. Va. July 28, 2015) (finding that plaintiff could plausibly allege actual malice if plaintiff specifically asserted that defendant knew the author’s relationship with plaintiffs had “gone sour” after their past “unsuccessful business relationship”); Barreca, 683 N.W.2d at 123 (reversing summary judgment when record established defendant made defamatory statement based on one anonymous and unverified phone call, and portions of the statement at issue arguably showed defendant “entertained serious doubts about the truth of the phone call”).

Similarly, plaintiff alleges defendants acted with actual malice because they republished the Article.... The amended complaint asserts defendants republished the Article by tweeting links to it.... This argument fails both factually and as a matter of law. Publishing a link to an existing story is not a republication of the story.... Even if tweeting links to the Article constitutes republication, the cases plaintiff cites are inapposite here.

For what it's worth, the judge also makes a brief mention of the language that Biss used in the lawsuit to smear Lizza, regarding some rumors that went around about him. We had pointed out earlier that these claims seemed much more "defamatory" than anything Lizza wrote about Nunes. Lizza's lawyers had asked the court to strike those statements from the motion, which the court denies as moot (since the whole case is being tossed) but does note:

The Court notes, however, the material identified by defendants ... is immaterial, impertinent, and scandalous. Plaintiff’s personal attacks on Lizza have no bearing on this case. This is apparent because plaintiff never refers to the challenged allegations in resisting defendants’ motion to dismiss. The allegations likewise are prejudicial to Lizza and have criminal overtones.

The one annoying part of the ruling has to do with anti-SLAPP laws. Even though, as noted, Iowa has no anti-SLAPP law, Lizza and Hearst sought to say that California's strong anti-SLAPP law should apply (seeing as any reputational damage to Nunes would occur in California). The court rejects that on procedural grounds, saying that standard 12(b)(6) motion to dismiss procedures (and other rules of federal civil procedure) "pre-empt" California's anti-SLAPP law, since they grant the same basic protections in getting cases tossed out early. That's an argument that comes up frequently in anti-SLAPP cases. And while it's true that a motion to dismiss can -- at times -- serve a similar purpose to an anti-SLAPP motion to strike, there are important procedural differences that protect free speech, including the attorney's fees award that goes along with most anti-SLAPP laws, including California's. Unfortunately, here, the court says that cannot apply.

This is yet another reason why we absolutely need a federal anti-SLAPP law with fee shifting as part of it. Still, overall, this is a good, clean ruling rejecting one of Nunes' silly SLAPP suits. This result was inevitable, but still created a nuisance -- which likely was the intent all along.

Filed Under: 1st amendment, anti-slapp, california, defamation, devin nunes, esquire, free speech, iowa, opinion, ryan lizza, slapp, slapp suit, steven biss

Just Like Every Other Platform, Parler Will Take Down Content And Face Impossible Content Moderation Choices

Overhype

from the this-is-not-the-panacea dept

Fri, Jun 26th 2020 9:35am — Mike Masnick

Like Gab before it, the hot new Twitter-wannabe service for assholes and trolls kicked off of Twitter is Parler. The President and a bunch of his supporters have hyped it up, and the latest is that Senator Ted Cruz (and Rep. Devin Nunes) have recently joined it, and like others before them they have hyped up the misleading claim that Parler supports free speech unlike Twitter. Cruz -- who has been spewing blatantly false information about "anti-conservative bias" on various internet platforms -- even announced his move to Parler... on Twitter, which does not seem to be moderating him at all. Cruz's overwrought speech is full of nonsense that has come to typify his pathetic attempt to win fans among Trump's base.

But, I did want to take a closer look at the claims that Parler supports free speech, because it does so in basically the same way every other platform -- including the way Twitter, Youtube and Facebook do: by saying that they can remove your content for any reason they want. Their user agreement includes this:

Parler may remove any content and terminate your access to the Services at any time and for any reason or no reason, although Parler endeavors to allow all free speech that is lawful and does not infringe the legal rights of others. Any invitation made by Parler to you to use the Services or submit content to the Services, or the fact that Parler may receive a benefit from your use of the Services or provision of content to the Services, will not obligate Parler to maintain any content or maintain your access to the Services. Parler will have no liability to you for removing any content, for terminating your access to the Services, or for modifying or terminating the Services, at any time and in any way and for any reason or no reason. Although the Parler Guidelines provide guidance to you regarding content that is not appropriate, Parler is free to remove content and terminate your access to the Services even where the Guidelines have been followed.

Parler should be thankful that it has Section 230 of the CDA to make that possible. And it should probably be ticked off at Cruz, who has been among those threatening to revoke Section 230.

My favorite line is the last one, which says that it can remove content or terminate your account even where you have followed its Guidelines.

Under various proposals to reform Section 230, this would go against the law, but Parler is actually doing the right thing here. If you only limit your moderation powers to what is explicitly in your terms, then people will game those terms and cause problems on your platform. You need the flexibility to deal with bad actors -- the flexibility that Section 230's current structure provides.

And while Parler's Community Guidelines are written in a manner that makes it look like they're mimicking 1st Amendment jurisprudence, that's a trick they're playing, because the specifics do not match the reality. First, at the very top, they say that no spam is allowed:

Spam is repetitive content that does not contribute to the conversation. It often comes in the form of multiple posts of repeating content that offer little to no value to the community and platform at large.

And the guidelines tell users:

Avoid repetition in the comment section of posts. Spam applies more heavily to comments then posts.
Do not use language/visuals that are meant to take advantage of others on Parler.
Avoid language/visuals that solicits advertisements on other’s posts.

Of course, all of that is 1st Amendment protected speech.

Parler also bans sharing "rumors about other users/people you know are false." And while they couch this as being the same as defamation, the legal standards for defamation go way beyond that. Banning "rumors about other users/people you know are false" will create judgment calls by Parler in determining what stands and what doesn't.

In the section meant to mimic the Supreme Court's (mostly obsolete) "fighting words" doctrine, Parler again says that plenty of 1st Amendment protected speech is barred from its platform.

Any direct and very personal insult with the intention of stirring and upsetting the recipient

Of course, intention is subjective, meaning again that Parler would need to make judgment calls.

Parler, like Gab before it, bans pornography, falsely claiming:

Pornography is considered indecent according to clauses defined by the FCC.

The FCC polices public airwaves, which come from publicly owned, but corporate-held, spectrum. The FCC's determination of indecency has no bearing on the internet (and does have some 1st Amendment issues as well). Parler's definition of porn is... really weird.

Printed text description, or visual material containing the explicit description or display of sexual organs or activity. Porn must meet ALL the following conditions:

Porn does not require nudity
Can be an image, painting, art, or description
It must be morbid or degrading in nature (Prurient)

Of those "conditions" only the last one is actually a "condition." If the others are conditions, does that mean if it does have nudity, it's no longer porn?

There's a lot more where this comes from, but almost all of it appears to be written by someone who did a Wikipedia search on exceptions to the 1st Amendment, but didn't bother to talk to a 1st Amendment lawyer to understand what those exceptions actually meant.

Still, there is a larger point in all of this, which is something we've tried to explain to people over and over again. There is no such thing as not moderating content. First of all, some content moderation is required by law -- especially things like child sexual abuse material and copyright infringement. Second, there are international issues that Parler will eventually need to deal with, even if it's an American company. Already, some have pointed out how Parler's user agreement might put users on the legal hook for international issues. Third, without content moderation, your site gets filled with junk, spam, and abuse. Even Parler seems to implicitly recognize this with its terms.

There have been plenty of sites that have sprung up over the years that first promise no moderation until they realize what that means in practice -- and then suddenly they realize that some level of content moderation is a necessity. Now, Parler may take a more hands off approach than others, and that's great. Different approaches and different levels of experimentation should be encouraged. But the idea that Parler is somehow taking a substantially different approach than a site like Twitter is nonsense.

On a related note, Parler's sudden burst of attention and usage should serve to highlight another nonsense talking point from the world of Trump: that the existing large platforms (namely: Facebook, Twitter, YouTube, Instagram) and their content moderation decisions are somehow a form of censorship or control of the "public square." The great thing about the internet is that it's still (mostly) open for other entrants to try to build a better mousetrap. So the idea that the other platforms need to be hit with regulations over their content moderation practices seems odd when Parler itself has demonstrated that it's totally possible to build competitors.

Filed Under: 1st amendment, content moderation, devin nunes, free speech, porn, section 230, spam, ted cruz
Companies: gab, parler, twitter

75 Comments

Judge Sides With Twitter Over Devin Nunes In Case Over Satirical Internet Cow: Section 230 Removes Twitter From Frivolous Case

Legal Issues

from the one-for-the-cow dept

Wed, Jun 24th 2020 2:11pm — Mike Masnick

Well, some small bit of good news in the Section 230 front: after a judge was clearly skeptical over Devin Nunes' arguments for why Twitter should be involved in Nunes' frivolous SLAPP suit over a satirical internet cow that mocks him, the judge has now announced that Section 230 of the CDA rightly protects Twitter.

In a letter that quickly dismisses each of Nunes's lawyer Steven Biss's silly arguments why 230 doesn't apply, the judge basically says "nope" to all of those arguments and tells Twitter's lawyer to draft an order dismissing Twitter from the case. Here's just one part of the letter:

The court must look to 47 USC Section 230 and the caselaw interpreting the act and analyze plaintiff's allegations to determin if Twitter has immunity under the act. Plaintiff would have Twitter be held liable for defamation for the content placed on its internet platform by others and would have Twitter found to be negligent for not removing the content place on its internet platform by others. Section 230 reads in subsection (c)(1) "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider". Plaintiff seeks to have the court treat Twitter as the publisher or speaker of the content provided by others based on its allowing or not allowing certain content to be on its platform. The court refuses to do so and relies on the rulings in Zeran v. Am. Online... The court in Zeran stated "Section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically section 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions -- such as deciding whether to publish, withdraw, postpone or alter content -- are barred".

The judge is also not at all impressed by Biss's argument of "but Twitter is so biased!" That doesn't matter:

The plaintiff also alleges that Twitter has a bias towards a point of view and that bias is so extreme that it governs its decisions regarding content that is allowed on its internet platform and that course of conduct makes it a content provider. The allegations in the Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.... were similar to those by the plaintiff in this case concerning content decisions being one sided and the court in the Nemet case ruled that the service provider was immune from suit pursuant to 47 USC Section 230.

The court finds the issues in this case substantially similar to the issues presented in the Zeran and Nemet cases and applying the rulings in the Zeran and Nemet cases the court finds that Twitter is not a content provider based on the allegations by Plaintiff in this lawsuit. The Court finds that Twitter is immune from the defamation claims of plaintiff based on 47 USC Section 230.

As an interesting side note, the court also cites Section (c)(2) of Section 230, the rarely used part of the law that says you also can't be liable for moderation decisions. A lot of cases around 230 don't even consider the (c)(2) issues, because (c)(1) is usually enough to dismiss. But here, the court basically says both of them are good enough to get Twitter out of the lawsuit.

The court further finds that 47 USC Section 230 (c)(2) provides immunity for all civil liability and therefore Twitter is immune from Plaintiff's negligence claim based on the allegations in the complaint and the courts application of the rulings in the Zeran and Nemet cases to the allegations in this case.

Next up: hopefully the court will dismiss the underlying defamation claims against the two satirical Twitter accounts (Devin Nunes' Cow and Devin Nunes' Mom) along with political consultant Liz Mair.

Filed Under: cda 230, devin nunes, devin nunes' cow, intermediary liability, nunescow, pat carome, section 230, steven biss
Companies: twitter

Devin Nunes' Lawyer Tells Judge To Ignore Section 230, Because Twitter Is Anti-Devin Nunes

Defamation

from the this-is-not-a-winning-strategy dept

Mon, Jun 15th 2020 6:14am — Mike Masnick

Twitter and Steven Biss (Devin Nunes' rather busy, but still terrible, lawyer) were in court on Friday to continue Nunes' frivolous SLAPP suit against a satirical internet cow who makes fun of Nunes. The current issue remains Twitter's unwillingness to reveal who is behind the @DevinCow account. Twitter, correctly, continues to point out that it doesn't need to give up the account info, that it's protected from doing so under Section 230, that the Cow has engaged in 1st Amendment protected speech, and more. And Biss's response appears to be... "but Twitter's mean to us, so it's not fair, it's not, it's not, it's not."

Needless to say, this is not a very good argument.

Nunes’ attorney Steven Biss said that Twitter should not qualify for immunity under the law, known as Section 230, contending it treats Nunes unfairly.

“They’re doing more than allowing Liz Mair, the cow and the mom to post a tweet,” Biss said. “They’re censoring, they’re promoting an anti-Nunes agenda, they’re banning conservative accounts and they’re knowingly encouraging it.”

Again, there's no evidence that Twitter is "banning conservative accounts" or "knowingly encouraging" anything involving an "anti-Nunes agenda," but even if they were, that's explicitly allowed (even encouraged) under Section 230, which flat out says that sites cannot be held liable for the moderation of constitutionally protected speech. At least the judge seems to recognize how faulty Biss' argument is:

“I don’t know of any requirement in the law that says these sites have to be neutral,” Marshall said. “Just because you don’t like it and asked to have them take it down, doesn’t mean they’re liable if they don’t take it down.”

Patrick Carome, an attorney for Twitter, argued that Biss wanted Marshall to carve out an exception for Twitter in the law, which is up to Congress, not the courts.

“Mr. Biss is asking the court to enact a new law,” Carome said. “And if he wants a new law, well, Mr. Nunes is a congressman.”

As an aside, Twitter's lawyer, Patrick Carome is not just "an attorney for Twitter," he was the lawyer who won the first big case about Section 230 that made it clear that it protected websites from liability for their moderation decisions. He understands the law inside and out. Biss... not so much.

According to Courthouse News, the judge even pointed out that Trump's silly executive order shows pretty clearly that Twitter's interpretation of 230 is correct:

“Doesn’t the existence of the executive order, which isn’t law, suggest the law can do what Twitter says it can?” the judge opined.

Biss also claimed that he was at a "dead end" in trying to determine the identity of who is behind the Cow account, which is kind of funny given the revelations that Biss tried to use subpoenas in wholly unrelated cases to try to unmask the account on the sly. Also, as Twitter pointed out, Nunes/Biss had not actually explored all legal avenues:

Carome listed the steps the congressman could take to get the identities revealed. They include filing subpoenas in Virginia and California and going through numerous steps to overcome each state’s unmasking laws.

“I don’t know why Nunes has been sitting on his hands,” Twitter’s lawyer said, pointing to the congressman’s original requests for the identities when the complaint was first filed over a year ago. “He’s wasted a lot of time.”

Of course, the reason that Biss hasn't done that is because he probably recognizes that he'll never overcome the bar to unmasking who is behind the Cow, because everything the Cow has said is protected speech, and the right to speak anonymously remains protected by the 1st Amendment as well.

That said, the judge (who had refused to dismiss the case earlier when he had the chance) pushed back on Twitter somewhat as well. Again, from the Courthouse News report:

But much like the first hearing in the case, Judge Marshall expressed some doubts about Twitter’s arguments as well. He pointed to a procedural issue involving the company’s failure to respond to numerous offenses Nunes alleges the company committed, ranging from shadow banning conservatives to acts of illegal defamation.

But Carome argued that procedurally, Twitter didn’t have to answer questions at this point in the case, while Marshall said state law might suggest otherwise.

The judge also expressed discontent at Twitter’s efforts to dismiss the case so early.

“The Supreme Court of Virginia doesn’t want us to short-circuit cases. I’m reminded by lawyers of it frequently,” he said to some chuckles in the court.

But that's all procedural nonsense. The key point is this: Devin Nunes is filing a vexatious, frivolous suit (one of many) against some online critics who were making fun of him (some of them anonymously). He has no legitimate claim, and as such no legitimate reason to unmask the people behind the satirical accounts.

Filed Under: 1st amendment, anonymity, cda 230, devin nunes, devin nunes' cow, devincow, pat carome, section 230, steven biss, unmasking
Companies: twitter

103 Comments

Judge Sends Devin Nunes' SLAPP Suits Against CNN And Washington Post Off To Their Proper Venues

Defamation

from the they-deserve-to-be-in-the-trash dept

Tue, May 26th 2020 3:50pm — Mike Masnick

It appears that at least one judge handling Devin Nunes' various SLAPP suits in Virginia has caught on to at least some of what's going on here. Judge Robert E. Payne has now transferred two of his lawsuits -- the ridiculous defamation filing against CNN and the even sillier SLAPP suit against the Washington Post -- to better venues. In both cases, the judge seems pretty fed up with Nunes' lawyer, Stephen Biss, opening both by quoting what was said to Biss in yet another one of his silly SLAPP suits:

It is with chagrin that [the] Court must begin to address this motion by observing that . . . Plaitiff[] engages in ad hominin attacks against [CNN and others in the Amended Complaint,] which the Court cannot tolerate. . . . The Court reminds Counsel for Plaintiff[] that, as an officer of the Court, he may be sanctioned for engaging in conduct unbefitting of this Court.

There's another version of this in the Washington Post transfer, but with the defendants there rather than CNN.

For the CNN case, here's the order shipping the case off to the Southern District of New York instead of Virginia.

The court went through various tests that all seemed to raise the question: why is Nunes filing this case in this court?

It is undisputed that the Eastern District of Virginia is not Nunes's home forum. (ECF No. 20 at 7 (Nunes stating that he "is a citizen of California").) That Nunes "works at the Capitol within a few minutes' drive of Virginia," (id.), and "participates in oversight of the U.S. national security apparatus, including the intelligence-related activities of seventeen agencies, departments, and other elements of the United States Government, most of which is located in Virginia,"... does not alter this fact. Additionally,... the offending act at issue--the publication of the Article--did not occur in Virginia. The Article was researched, written, and published in New York and, to some extent, Washington, D.C. Its subject matter has nothing to do with Virginia, and the Eastern District of Virginia is thus not the nucleus of operative facts.

The court brushes off the fact that the article could be read in Virginia, noting that if that were the deciding factor, cases could be brought anywhere. It also laughs off the idea that the venue might be appropriate because that's where Steven Biss resides, relegating that silly argument to a footnote: "convenience to counsel is not an appropriate consideration in resolving a motion to transfer venue."

The court then notes that NY is much more convenient for most material witnesses, and again brushes off Biss/Nunes' attempts to throw some "local to Virginia" witnesses into the stew to muddy things up:

CNN argues that the witness convenience factor "squarely supports transfer" because Ward, Cuomo, and Bondy all reside in New York.... That all three key witnesses reside in New York favors transfer.

The only witness Nunes has identified as residing in Virginia is Parnas's former attorney, Edward MacMahon, who was mentioned only once in the Article and who has not been shown to be a material witness.... Additionally, Nunes contends that Jake Tapper..., who resides in Washington, D.C., and Parnas and Igor Fruman--Parnas's business partner and co-defendant,... who reside in Florida, are "material witnesses." ... It is clear that Tapper is not a material witness.... With respect to Parnas and Fruman, even assuming that they are material witnesses, both of these witnesses would need to travel from Florida, and New York is likely to be more accessible than Richmond, Virginia. Additionally, as CNN notes, both Parnas and Fruman are under indictment in the SDNY.

One other interesting point: the court points out that the parties are debating whether or not California's or New York's laws should apply to the case, and that supports a transfer to SDNY, which obviously understands NY law. And, the court says, even if it turns out that California's laws will apply (in which case, California's anti-SLAPP could be applied...), the court says that the SDNY is readily familiar with California law.

Separately, though, it's pretty clear that the judge is not at all happy about how Biss handled the case, and his frustration is evident. He calls out the problem of forum shopping, and suggests that the court has previously warned Biss to knock it off:

... the Court has significant concerns about forum shopping. As the Court has explained to Plaintiff's on numerous occassions, the "Court cannot stand as a willing repository for cases which have no real nexus to this district. The 'rocket docket' certainly attracts plaintiff[s], but the Court must ensure that this attraction does not dull the ability of the Court to continue to act in an expeditions manner."...

The order to transfer the Washington Post case to DC is pretty similar:

The District of Columbia is also a proper venue for this action. Venue is proper... because a "substantial part of the events or omissions giving rise to the claims occurred" in Washington, D.C. Venue is also proper... because the Post "resides" in Washington, D.C., given that the Post is subject to personal jurisdiction there, and "all defendants are residents of the State in which the district is located." Consequently, because jurisdiction and venue would both be proper in the District of Columbia, Nunes could have brought this case there...

Also, there's the fact that Nunes' lives and works in DC:

That Nunes "works at the Capitol within a few minutes' drive of Virginia" and "oversees the intelligence community, including ODNI which is located in Virginia" does not alter this fact... Indeed, Nunes's assertion that he "works at the Capitol," which is located in Washington, D.C., acts to support transferring this action to the District of Columbia.

The fact that the Washington Post prints its print edition in Virginia is... not enough to make it the proper venue:

Moreover, the Eastern District of Virginia is not the nucleus of operative facts. The offending act at issue--the publication of the Article online--occurred in Washington, D.C. ... Additionally, the Article was researched, written, and edited in Washington, D.C. with assistance from a journalist located in Moscow, Russia, not Virginia... The only connection between this action and Virginia, besides the location of Plaintiff's counsel, is that the Article was printed in Springfield, Virginia. That tenuous connection is insufficient to give significant weight to Nunes' choice of forum.

As the judge later notes: "There is no logical connection between the events in this case and this district."

It seems clear that Judge Payne sees what Biss is trying to do here, and given that, Biss may actually be at least mildly relieved to have these cases out of this judge's courtroom.

Of course, in the CNN case, NY has a very weak anti-SLAPP law as well, so that part won't necessarily help CNN. However, if CNN can convince the court that California's anti-SLAPP law applies (which it might...), then Nunes could be on the hook for CNN's extensive legal costs. As for the Washington Post case, DC does have a good anti-SLAPP law, but it's been held not to be available in federal court there, meaning that might be limited too. Still, I really do wonder how much guidance Biss has given Nunes about the liability that he, himself, may end up facing in all of these lawsuits if California's anti-SLAPP law is applied?

Filed Under: anti-slapp, defamation, devin nunes, robert e. payne, slapp, slapp suits, steven biss, venue, virginia
Companies: cnn, washington post

Judge Tells Devin Nunes' Dad (And Lawyer Stephen Biss) To Put Up Or Shut Up In Defamation Lawsuit Over Esquire Article

Defamation

from the the-article-they-don't-want-you-to-read dept

Thu, May 14th 2020 10:44am — Mike Masnick

Remember, Rep. Devin Nunes really doesn't want you to read this Esquire article entitled, Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret. He'd be super duper upset if you read it. The article is about how Nunes, who frequently refers to his prior job as a "dairy farmer" in Tulare, California, probably doesn't want the world to know that his family up and left California to take their farm to Iowa. The article is a worthwhile read, detailing how the information about the location of the Nunes' family farm seems to stay hidden -- including how an article that reveals the Nunes' family presence in Iowa, published in the publication Dairy Star in 2009, suddenly disappeared from Dairy Star's website when Lizza showed up in Iowa asking questions. The article also discusses how many farms in the area employ undocumented workers, but that's almost a side plot.

Either way, last fall, we wrote about how Nunes sued over the article in Iowa which, notably, has no anti-SLAPP law. As we pointed out at the time, this seemed like a case that was ripe for Hearst (the publisher of the article) and Lizza to try to make use of California's anti-SLAPP law, even though the case was filed in Iowa, because any reputational harm to Nunes would have to come in California, not Iowa. And, indeed, Hearst's smart lawyers took my advice (just kidding, they knew it without me suggesting it) and have asked the court to use California's anti-SLAPP law:

Iowa choice of law rules dictate that California law supplies the rule of decision in this case. Congressman Nunes pleads that he is “a citizen of California.”... Purported harm to his reputation would be most severely felt in the 22nd Congressional District of California, where Congressman Nunes was, at the time of publication, running for re-election.... In fact, Congressman Nunes expressly alleges that the Article was published for the purpose of “influenc[ing] the 2018 Congressional election.”... And the Amended Complaint rejects the notion that Congressman Nunes has any ties to Iowa, or to the family farm in Sibley. (“Plaintiff does not own an interest in his family’s dairy farm in Iowa, never has, and is not involved in any way in its operations.”).

For what it's worth, the filing also makes standard 12(b)(6) arguments for why the case should be dismissed even absent the California anti-SLAPP motion to strike (which would force Nunes to pay Hearst's considerable legal fees), pointing out that none of the contested statements are actually defamatory, and the complaint comes nowhere near pleading the "actual malice" standard. The judge is still considering that request, but should be ruling shortly.

What I had missed, however, was that earlier this year (perhaps realizing the California exposure of the Devin Nunes' suit), Nunes' lawyer Steven Biss filed a separate lawsuit on behalf of Nunes' family (his father and his brother) and their Iowa farm, Nustar Farms. The complaint is also against Hearst and reporter Ryan Lizza over the same article and makes the same basic defamation claims. This one demanded $25 million (Devin's lawsuit demanded $77.5 million). The court, recognizing the connection between the cases, has consolidated the two cases late last month. At least the second lawsuit has less of an argument for why California's anti-SLAPP should apply, since the plaintiffs are actually in Iowa.

So, Hearst's motion to dismiss in this case merely points out that none of the statements labelled as defamatory in the complaint are... defamatory.

Plaintiffs’ Complaint follows the same cadence as that of Congressman Nunes: It is filled with bluster, hyperbole, and conclusory allegations of fabrication and misconduct, while summarily alleging that 16 statements in the Article are false. But Plaintiffs’ Complaint does not explain why or how any of the 16 challenged statements are actionable, beyond simply quoting them and declaring them “false and defamatory.” The Complaint does not provide any factual information as to what aspects of the statements—some of which are an entire paragraph in length—are false, and why that is so. Plaintiffs have therefore failed to carry their burden of pleading falsity with sufficient factual detail to make the allegation plausible, as required by Twombly and Iqbal. See Point I.A. (At a minimum, the Court should order that Plaintiffs plead a more definite statement, with details explaining precisely how and why they maintain that the challenged statements are false. See Point II.) Plaintiffs should not be permitted to subject Defendants to burdensome discovery that chills their and others’ First Amendment rights without specifying facts that would support their conclusory claims of falsity.

Notwithstanding Plaintiffs’ failure to satisfy Rule 8, every challenged statement is on its face not actionable for one or more reasons. Most are not statements “of and concerning” Plaintiffs. Most are not defamatory; that is, the statements would not tend to injure any of Plaintiffs’ reputations in the community. Several are actually or substantially true, as admitted in the Complaint. And others are nonactionable opinions, as evidenced by the literary journalism format of the Article and the overall context, and moreover such opinions are predicated on facts disclosed in the Article, and are therefore fair comment protected by the First Amendment....

In response Biss filed what strikes me as one of the weakest opposition motions I've seen. It's hand-wavey and misleading, but this post is long enough and I don't even need to dig into why, because, as first noted by Newsweek, Judge CJ Williams has already sided with Hearst, at least in following their "at a minimum" request that the judge make Biss and the Nunes family actually detail how the statements are false.

As you can see, Judge Williams is not convinced by Biss's hand-waving:

Defendants argue that plaintiffs’ complaint fails to identify “what aspect(s) of each statement is supposedly false and defamatory, and . . . what Plaintiffs allege the truth of the matter to be.”... Plaintiffs contend that it is enough for the complaint to simply allege that the statements are false, and defendants can seek the factual details they want through discovery.... As a preliminary matter, the Court finds that plaintiffs must allege facts that, if proven, would show the statements to be false.... It is not enough for plaintiffs to list a number of statements and generally declare them to be false without alleging facts which, if proven, would show them to be false.

The Court then points out that all the performative hyperbole so common in Biss defamation complaints isn't going to cut it:

The remainder of plaintiffs’ complaint is bereft of any factual allegations pertaining to the truth or falsity of the challenged statements. Rather, the remainder of plaintiffs’ complaint is conclusory in nature. Paragraph 15 includes the conclusory allegation that the article contains a “defamatory gist and false implication[s].” Paragraphs 16 through 18 allege defendants republished the article. Paragraph 19 asserts that the article was “knowingly and intentionally flawed,” that “Lizza came to Sibley with a preconceived storyline,” and that he “fabricated a ‘secret’ where none existed,” citing as authority the Federalist’s website that makes a personal attack on Lizza. Under the heading Count I – Defamation, paragraphs 21 through 29 make assertions of defamation, republication and damages, but do not contain any factual allegations pertaining to the truth or falsity of the statements.

As for the actual statements in the article that Biss did call out, the court points out that there's not nearly enough there for a defamation claim. I won't go through each and every one, but the judge's analysis of the very first alleged defamatory statement should give you the gist of all the rest:

1. “So why did [Devin Nunes’] parents and brother cover their tracks after quietly moving the farm to Iowa? Are they hiding something politically explosive? On the ground in Iowa, Esquire searched for the truth—and discovered a lot of paranoia and hypocrisy”.

The first two sentences in this bullet point are questions. Arguably, the first question asserts facts: Devin Nunes’ parents and brother covered their tracks and moved their farm to Iowa. The word “quietly” is an adjective arguably reflecting an opinion. The words “covered their tracks” could be an opinion, but implies facts, that is that the Nunes performed some act to conceal the move. The third sentence appears generally to assert an opinion: Esquire searched for the truth and discovered a lot of paranoia and hypocrisy. Whether Esquire searched for the truth seems a matter of opinion, as is whether Esquire discovered facts that led it or anyone else to conclude that there was some or a lot of something considered to be paranoia or hypocrisy. Plaintiffs’ complaint does not make it clear what it is in this bullet point they allege is false. In theory, plaintiffs could allege facts that would prove the first sentence to be false. That is, plaintiffs could allege that they did not move their farm to Iowa. Plaintiffs’ complaint does not make it clear at all which of these statements plaintiffs are alleging are false. Plaintiffs could be asserting that it is false that the Nunes concealed any move, or they could be asserting that Esquire did not discover paranoia or hypocrisy. Nor does the complaint allege facts showing that any of the statements are false or why they are false. How defendants’ answer the complaint or the defense they assert to the defamation claim turns on what it is that plaintiffs allege is false in this bullet point.

In other words, this is a classic SLAPP suit in which just quoting statements you dislike and declaring them defamatory is not nearly enough to plead a defamation claim. And each of the sixteen different statements laid out in the complaint gets similar treatment, leading to the following summary:

The tedious and laborious exercise of dissecting each of the sixteen bullet points illustrates the deficiency of plaintiffs’ complaint. The complaint is not at all clear as to which facts asserted in these bullet points plaintiffs allege are actually false. Knowing which assertions plaintiffs allege are false is necessary for defendants to be able to answer the complaint and assert a defense. As the Court pointed out as it addressed each bullet point, some of the alleged facts may be defended as opinions or conclusions, others may be defended as not concerning plaintiffs, and still others may be defended as being true. Without knowing which of the facts plaintiffs allege are actually false, defendants are left not knowing how to answer the complaint. The exercise also shows that the complaint fails to allege facts which, if proven, would show that any of the alleged facts are false.

However, rather than dismiss the complaint outright for a failure to state a claim, the Judge is willing to give Biss one more chance, though you can sense the doubt that anything will come of it:

Plaintiffs are granted 14 days to file an amended complaint specifically identifying the facts in the contested article they allege are false, and to allege facts which, if proven, would show those facts to be false. If plaintiffs do not file an amended complaint, the Court may dismiss this matter without further action by defendants.

It seems likely that Biss will file such an amended complaint. It seems unlikely that it will succeed in pleading defamation to a level that won't then be dismissed for failure to state a claim. But, of course, if the intention is just to SLAPP, then the goal is to just drag this out as long as possible anyway.

Once again, this is why Iowa needs an anti-SLAPP law, and we need a federal anti-SLAPP law as well.

Filed Under: anthony nunes, anti-slapp, california, defamation, devin nunes, iowa, ryan lizza, slapp, statements of fact, steven biss
Companies: hearst, nustar farms

Devin Nunes' Lawyer Facing Sanctions, While Nunes Himself May Have To Pay His Opponents' Legal Bills

Legal Issues

from the let's-see-how-this-all-works-out dept

Tue, May 5th 2020 9:29am — Mike Masnick

It's been over a year since Devin Nunes kicked off his vexatious campaign to sue various critics. As you probably are aware, in that year he's sued news organizations, journalists, political operatives, critics, and, most famously, a satirical internet cow.

Most (though not all) of those lawsuits have been filed in Virginia which has a notoriously weak anti-SLAPP law. He's also filed a lawsuit in Iowa, which has no anti-SLAPP law. He briefly filed one case in California -- which does have an anti-SLAPP law -- but (1) he had his campaign file it rather than himself personally, and then (2) quickly dropped it.

The barrage of frivolous, censorial SLAPP suits in Virginia, though, inspired lawmakers there to pass a good anti-SLAPP law, though the two legislative houses were unable to come to an agreement on a consensus version of the law before their brief 2020 legislative session came to an end, though they promised to take it up again in 2021.

What's interesting is that in a new article about what happened with the law in the Roanoke Times, it's explained that once the law does hopefully pass next year, it may apply back to Nunes' series of vexatious lawsuits -- meaning he might be on the hook for the legal bills of everyone he sued. Normally, laws cannot apply retroactively, but as the article notes, this wouldn't be about making something illegal retroactively, but rather about making a procedural change to how cases play out, meaning it could apply retroactively:

Because the change in law would be procedural rather than substantive, Nunes’ defendants may be able to seek early dismissals and attorneys fees even though his lawsuits were filed before the law was enacted, Edwards said. Those fees could be substantial.

Notably, the article states that while the two legislative houses were debating the specifics, one thing they did agree on was making the attorneys' fees aspect for SLAPP filers mandatory, rather than leaving it to the discretion of the judges.

One part they managed to work out was whether judges would have the option of awarding attorneys fees and court costs to defendants who won motions for early dismissals in a SLAPP suit. The way both measures ended up, judges would be required to award those fees and costs.

And, it might not just be Nunes who's in deep, deep trouble. His lawyer has been the mastermind between not just Nunes' lawsuits, but also a bunch of somewhat interrelated cases from a group of people who all seem somewhat connected. NPR has asked for sanctions against him, and in another case the judge scolded Biss, but chose not to sanction him yet.

However, a new Fresno Bee article (one of the many news orgs targeted by Biss SLAPP suits), notes that judges are increasingly catching on to Biss's SLAPP tactics and he may very well face real sanctions before long:

In dismissing the case for the Russian graduate student in February, Judge Leonie Brinkema of the U.S. District Court in the Eastern District of Virginia warned Biss against filing “further inappropriate pleadings.”

That was the same month the judge in the Fusion GPS case – in the same federal court – told Biss that he should make sure he follows federal law if he files another lawsuit.

Both of those rebukes are “quite unusual,” according to Kevin Martingayle, a former Virginia State Bar president who has worked on ethics or disciplinary committees for over a decade.

“If I got one warning like that from a judge, I would be extremely careful going forward,” Martingayle said.

“I can’t recall seeing it in an order after practicing law for 30 years, which has included some pretty contentious defamation cases,” he added.

In the decades that we've been covering frivolous lawsuits here at Techdirt, it's quite clear that judges are extremely reluctant to issue sanctions against lawyers, even in what seem like fairly egregious cases. They are very restrained and seem to want to assume lawyers just need a few warnings to correct their ways. However, once judges start to pick up on repeated behavior, the sanctions can start coming in pretty quickly -- as we've seen in copyright trolling cases such as Prenda Law and Richard Liebowitz.

Filed Under: anti-slapp, devin nunes, sanctions, slapp, steven biss, virginia

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Devin Nunes Files Another SLAPP Suit; Sues The Washington Post Again

from the suppressing-speech dept

Devin Nunes Asks Appeals Court To Invalidate Bedrock Supreme Court 1st Amendment Ruling

from the protect-and-defend-the-constitution dept

Devin Nunes Is Still Suing A Satirical Cow & A Political Consultant, But Judge Rejects Attempt To Bring Twitter Back

from the will-it-ever-end? dept

Judge Rejects Devin Nunes' SLAPP Suit Over The Esquire Article He Really, Really Doesn't Want You To Read

from the have-you-read-it-yet? dept

Just Like Every Other Platform, Parler Will Take Down Content And Face Impossible Content Moderation Choices

from the this-is-not-the-panacea dept

Judge Sides With Twitter Over Devin Nunes In Case Over Satirical Internet Cow: Section 230 Removes Twitter From Frivolous Case

from the one-for-the-cow dept

Devin Nunes' Lawyer Tells Judge To Ignore Section 230, Because Twitter Is Anti-Devin Nunes

from the this-is-not-a-winning-strategy dept

Judge Sends Devin Nunes' SLAPP Suits Against CNN And Washington Post Off To Their Proper Venues

from the they-deserve-to-be-in-the-trash dept

Judge Tells Devin Nunes' Dad (And Lawyer Stephen Biss) To Put Up Or Shut Up In Defamation Lawsuit Over Esquire Article

from the the-article-they-don't-want-you-to-read dept

Devin Nunes' Lawyer Facing Sanctions, While Nunes Himself May Have To Pay His Opponents' Legal Bills

from the let's-see-how-this-all-works-out dept

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