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

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

Devin Nunes Demands Satirical Internet Cow Stop Making Fun Of Him... Or Else

from the mooooooooooooooooooooo dept

Rep. Devin Nunes remains super angry about a satirical internet cow. Earlier this year, we wrote about his lawsuit against the satirical cow on Twitter (and against Twitter itself) as well as a bunch of other lawsuits Nunes has been filing against critics in the intervening months. The cases appear to be fairly obvious SLAPP lawsuits; that is lawsuits that are designed solely to silence critics, rather than based on any legitimate legal basis. As we've noted, the venues in which Nunes has focused his lawsuits (mostly Virginia, and now Iowa) have either weak or non-existent anti-SLAPP laws. Tragically, the original case, against two satirical Twitter accounts, including one called "Devin Nunes' Cow" (a satirical reference to Nunes' oft-repeated claim of being a California dairy farmer, even as his family farm has uprooted itself to Iowa) was not thrown out by the judge on jurisdictional grounds, allowing the case to move forward.

According to the Fresno Bee, however, even as that lawsuit is ongoing, Nunes' lawyer in the case has sent a threatening demand letter to Andrew Janz, a lawyer and state prosecutor who ran against Nunes in the last election and lost (much more narrowly than many people seemed to expect). The full letter is truly a piece of work, demanding Janz make the @DevinCow account stop making fun of Devin Nunes and issue an apology.

I only wish I was joking. The letter is amazing in so many ways, starting from the opening lines:

I represent Devin G. Nunes.

I write again – this time to address a matter of grave import and enormous consequence.

A matter of grave import and enormous consequence?!? Do tell! Oh, it's the fact that a thin-skinned public official can't take pretty modest mockery:

As you well know, for over two years, Mr. Nunes has been maliciously harassed, stalked, bullied online, threatened and egregiously defamed on Twitter by the user or users who post day and night, through the anonymous Twitter account, @DevinCow. [https://twitter.com/DevinCow].

I mean, how could anyone think this letter was a good idea?

The letter then notes that a PAC connected to Janz appeared to be helping to raise legal defense funds for whoever is behind the @DevinCow account. If true, that wouldn't violate any laws, but Nunes and his lawyer imply that something terrible is happening here.

Based upon the evidence I have reviewed, it appears that you or an agent or agents acting at your direction is coordinating, instigating, aiding and abetting the user or users of the @DevinCow Twitter account in the malicious harassment, cyberbullying, stalking and defamation of Mr. Nunes.

Malicious harassment, cyberbullying, stalking and defamation? Get over yourself Nunes. What happened to supporting free speech and the 1st Amendment? A satirical cow mocking you is none of the above. It is not harassment. It is not cyberbullying. It is not stalking. And it is most definitely not defamation. It's satire. It's the mocking of public officials, which is something we've celebrated in this country basically since the very beginning. It's also all entirely protected by the First Amendment of the Constitution. You know? The document that Devin Nunes has sworn to protect?

Now come the demands to Janz. Because he's apparently helping to organize the legal funding to protect whoever is behind the @DevinCow account from this obvious SLAPP suit, Nunes' lawyer is now making patently ridiculous demands:

Demand is hereby made upon you as follows:

1. Immediately cause the user or users of @DevinCow to cease and desist from publishing any further false or defamatory statements of and concerning Mr. Nunes;

2. Immediately cause the @DevinCow Twitter account to retract all harassing, disparaging, false and defamatory tweets and retweets of and concerning Mr. Nunes, and apologize for the harm done to Mr. Nunes and his family;

3. Within one (1) business day of retraction and public apology, cause the termination of the @DevinCow Twitter account.

It also notes to Janz that he should reveal who is behind the account:

As a Deputy District Attorney, it would be egregious and irresponsible for you to continue to keep secret from the public the identity of @DevinCow.

You are legally, ethically and morally responsible to act now.

This is all, of course, utter nonsense. And this is all strategically bizarre. Who could possibly think that getting this freaked out by a satirical account could ever possibly lead to anything good? It appears to show Devin Nunes is scared of fairly mild criticism and mockery. And the idea that such a ridiculous letter would have any good results, other than leading to even more mockery of Nunes for his thin-skinned freak out, and raising serious questions about Nunes' own fitness for office. If you can't take a bit of criticism from satirical constituents, maybe you don't belong in public office.

Also, even if this is all performative, all it's really served to do is get a lot more people paying attention to the satirical cow. Before the lawsuit, the account had about 1,200 followers. It now has over 630k -- which is pretty close to Nunes himself (there was a point in which the cow surpassed Nunes himself, but both have increased their follower counts quite a bit since then. Either way, encouraging over 600,000 users to follow an account designed solely to make fun of you, and then continuing to throw a legal temper tantrum over the account is not a good look for a sitting Congress member.

In the meantime, it certainly doesn't look like the DevinCow account has any interest in backing down or apologizing:

In the meantime, Nunes continues to be wrong about Twitter as well. In a recent interview he spouted a bunch of nonsense about the case:

He claims he had no choice but to sue. That's wrong. He could have not sued, for instance. He could have ignored the mockery. Or he could have responded to it. He could have shown why they were wrong if they were. There are many options short of suing -- especially for a Congressman who once introduced a bill to stop frivolous lawsuits. He says he's "been slandered and defamed" which is also just wrong. Slander is spoken defamation. If there was defamation (and there wasn't) it would be libel, not slander. But even more to the point, he's arguing that Twitter is negligent and that's why he's suing Twitter as well. Why negligent? Because something something bots. No, really.

"Twitter's case, it's even worse because they're negligent to the fact. I mean, they're allowing these bot farms, both large and small bot farms, and they allowed it to go on, knowing that the people behind it are operatives."

First off, even if that's true, so what? How is that "negligence"? How is that against the law? The interviewer even seems a bit surprised by this and asks if there "evidence to that effect" and Nunes doesn't actually say that there's evidence, but seems to suggest that Twitter protecting the anonymity (a 1st Amendment right, by the way) of its users is proof of negligence.

"We know they're operatives. Twitter knows they're operatives. And they refuse to give us the people behind it.... And they've had six months to come clean and shut all this down and tell us who are these political actors that they're hiding from the public? And from their investors? I think people will want to know why did you knowingly hide what, one we believe is a smaller political operation and one we believe is a much larger political operation. And Twitter knows the names of them and they oughta come clean and give them to us. And that's why we're in court. And so, they're proving our case for us. [Chuckles] I mean, this is like the definition of negligence, what Twitter and their high priced lawyers have been doing over the last six months."

Spoiler alert: what Twitter and their high-priced lawyers have been doing over the last six months is certainly not negligence. Protecting the 1st Amendment protected anonymity of your users, who include some satirical accounts mocking a thin-skinned Congressman, seems like good practice in protecting free speech and the all-American tradition of being able to speak up and criticize our elected officials.

Filed Under: 1st amendment, andrew janz, devin nunes, devin's cow, free speech, satire