Devin Nunes Loses Again, But He's Still Suing The Satirical Cow Who Mocked Him

from the and-so-it-goes dept

As you likely know by now, a little over two years ago, Devin Nunes kicked off his SLAPPy litigiousness by suing the satirical internet cow with about 1,200 followers at the time of the lawsuit (it now has over 770,000). What got a bit less attention was that the satirical cow was only one of the four parties sued. There was also another satirical account pretending to be Nunes' mother, and then there was Twitter and a political consultant named Liz Mair (who he actually sued another time as well -- in a case that was also dismissed, though Nunes is appealing).

Mair has written about what an attack on free speech this is, and spoke with us last year about what a nuisance it is to be sued. Last summer, the judge dismissed Twitter from the lawsuit and now he's finally dismissed Mair as well (as first reported in the Fresno Bee, whose parent company Nunes has also sued).

The ruling is pretty short and sweet, as apparently this is just the paper version of what he ruled from the bench last month. But, more or less, the case fails for the exact reason everyone who knows anything about defamation predicted: the complaint doesn't show anything Mair stated was even remotely defamatory, and there's nothing showing actual malice, which is necessary if a public figure is claiming to be defamed.

For the reasons stated on the record at the July 2, 2021 hearing, the Court concludes that the Complaint fails to adequately allege defamation per se against Mair as a matter of law. Specifically, the defamation per se claim alleged against Mair fails for the following independent reasons: (1) the Complaint fails to plead with sufficient context the “exact words” of the statements. alleged to be defamatory; (2) the statements alleged to have been made by Mair are not defamatory as a matter of law; and (3) the facts alleged fail to support a reasonable inference that Mair made any of the alleged statements with the requisite intent of “actual malice.”

And therefore (finally) the complaint against Mair is dismissed with prejudice.

So... Twitter's out of the case. Mair is out of the case. All that's left are the two satirical accounts. And that's apparently going nowhere because Nunes' lawyer, Steven Biss -- despite using some extremely questionable methods has apparently been unable to figure out how to identify and serve the satirical accounts.

This actually puts Nunes into something of a quandary. He apparently can't appeal this latest ruling in favor of Mair unless he gives up trying to sue the satirical accounts. So, now Nunes will have to decide which is more important -- appealing the Mair decision, or hanging on and hoping he can somehow find the cow. As Mair told the Fresno Bee, this whole situation puts her (and the cow) in perpetual limbo:

“He may yet appeal,” Mair said of the decision to dismiss her from the Twitter lawsuit in Henrico County, for which the congressman sought $250 million from her, “though as I understand it, that process could occur years or even decades from now given the inability of Rep. Nunes to ‘unmask’ the cow and the mom in that case, and the possibility that the case never reaches a resolution whether through court action, settlement or dismissal of the cow and the mom from the suit.”

Perhaps more importantly, Mair explains how absolutely fucking ridiculous it is that a sitting Congressional Representative is regularly abusing the courts to silence and intimidate people for reporting on him and making fun of him:

“It is ridiculous that we have had a sitting United States congressman suing a fake farmyard animal, let alone me, for being mean to him on Twitter, which the First Amendment clearly protects,” Mair said. “It is also extremely disturbing that Rep. Nunes has, on my read, appeared to use litigation as a cudgel to try to stifle free speech in such a wanton manner.”

Separately, since the question of how the hell Nunes is funding all these cases has been raised a bunch (a complaint from the Campaign Legal Center says that it's against House rules to receive free legal services without a Legal Expense Fund), that issue may actually get some attention in a different case.

On Monday, in the case that Nunes' relatives have filed against reporter Ryan Lizza and Esquire Magazine (Nunes also sued, but that was thrown out), the defendants asked the court to force Nunes' family to reveal who is funding that lawsuit.

Through this Motion to Compel, Defendants Ryan Lizza (“Lizza”) and Hearst Magazine Media, Inc. (“collectively, “Defendants”), seek an order requiring Plaintiffs NuStar Farms, LLC, Anthony Nunes, Jr., and Anthony Nunes, III (together, “Plaintiffs”) and their attorneys to disclose responsive information and documents regarding their source of funding for this lawsuit and the material terms of their third-party litigation funding arrangement(s). This information goes directly to a dispositive issue in the case and is relevant to other issues as well; Plaintiffs cannot meet their burden to resist providing the information, which imposes no burden to produce.

While it might initially seem like a stretch to have to disclose this during discovery, as Esquire's lawyers argue in their supporting brief, it's actually quite important in this case:

This information goes to the heart of a potentially dispositive issue in this case—whether Plaintiffs should be deemed public figures by virtue of their relationship to the Congressman and their coordination in pursuing this lawsuit as part of his policy to sue media entities....

It's unclear if the judge will agree with this (and apparently he's already suggested that he's skeptical of this argument). Separately, even if they are compelled to hand over that information, that doesn't mean it will ever become public. But it still is worth paying attention to.

Filed Under: 1st amendment, anti-slapp, defamation, devin nunes, devin's cow, free speech, liz mair, slapp, steven biss, vexatious lawsuits, virginia

Devin Nunes' Lawyer, Steven Biss, Finally Gets Sanctioned In Wacky Defamation Case

from the pay-up dept

Back in April, we wrote about how Steven Biss, who has become infamous for his flurry of frivolous defamation lawsuits -- many of which are on behalf of Congressional Representative Devin Nunes as well as an odd collection of wacky people in Nunes' orbit -- had lost yet another case, but that the court had rejected sanctioning Biss. That didn't last long. That ruling was in the 4th Circuit appeals court in the case Biss brought on behalf of Russian-born academic Svetlana Lokhova against a Cambridge academic, Stefan Halper, and a variety of media organizations. I'm not going to recount all the details of the case again. You can read those in our original post. Just know that it seemed to be a pretty obvious SLAPP suit. Much of it was filed after the statute of limitations had passed, on statements that were clearly not defamatory, and, in at least one case, appearing to sue the wrong party. However, the District Court judge and the Appeals Court both found that while Biss had a long history of bad behavior in court, they didn't want to take the further step of sanctioning him. Yet. Though both courts made it clear that further shenanigans could change that.

I will give you just one guess what happened next. And I'm sure you'll get it right.

I had somehow missed that while Biss/Lokhova were getting benchslapped in that case, they had decided it would be a good idea to file another frivolous SLAPP suit against Halper. This case involved claims that Halper had somehow defamed Lokhova (again) and tortiously interfered with her publishing contract, regarding a book she was publishing all about Steven Halper (which Halper insists itself is defamatory towards him). Halper had sent a letter to the publisher and distributor of the book arguing that Lokhova's book was defamatory, and then Biss/Lokhova sued Halper again. They failed to mention that they had already sued Halper, and that the cases were related, which probably didn't make the court very happy in the first place.

Judge Leonie Brinkema seems to have had enough. Recognizing that her original lenient order not to issue sanctions in the last case was ineffective, she has finally recognized that Biss seems unwilling to back down. So she has now order both Biss and Lokhova to pay Halper's legal fees in this case.

In the May 5, 2021 hearing on defendant's Motion for Sanctions, the Court found that Halper's counsel's letters were protected by absolute litigation privilege, making the filing of the pending lawsuit by Lokhova and Biss frivolous and without merit.

It goes on, dismantling each and every argument by Biss, and also notes that much of the argument seems to be an attempt to relitigate the other case that they had already lost:

The rest of plaintiff's arguments in her opposition to the Motion for Sanctions amounted to another defamatory attack on Halper and attempts to relitigate Lokhova I, including her attachment of redacted FBI papers purportedly showing Halper lying to the FBI....

The judge then recites a very long list of examples of bad behavior in court, including admonishment and sanctions by other judges.

Bis also has an extensive history of being admonished and sanctioned by courts around the country. In this district, Biss was warned not to engage in ad hominem attacks. Steele v. Goodman.... Another judge admonished Biss for conduct unbefitting an officer of the Court. Nunes v. WP Co. LLC.... Biss was sanction and required to pay the opposing party's attorneys' fees under Rule 11 for making "objections contrary to settled law":

Counsel for Plaintiff's objections contrary to settled law are particularly troubling given this Court's previous admonishment, in its May 29, 2020 Memorandum Opinion, that Mr. Biss "ensure that all positions, including those in briefing and in support of discovery, 'are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law' . . . [f]ailure to do so could result in sanctions."

Anderson v. Sch. Bd. of Gloucester Cty..... In dismissing a RICO suit for its "conclusory allegations," yet another judge in the Eastern District of Virginia admonished Biss that any amended complaints must comply with Fed. R. Civ. P. 11. Nunes v. Fusion GPS.... Biss has also been sanction in other districts, including in an Iowa federal district court, where the judge described Biss's personal attacks in a complaint as "immaterial, impertinent, and scandalous," with "no bearing on this case," and "prejudicial to [defendant]" with "criminal overtones," Nunes v. Lizza.... and by a district judge in the Southern District of Florida who imposed sanctions on Biss under the Florida anti-SLAPP statute because his lawsuit "was without merit" and arose out of free speech in connection with a public issue. Bongino v. Daily Beast Co. LLC.... Recently, Biss was sanctioned in the District of Maryland and required to pay defendant $21,437.50 to reimburse it for its attorneys' fees after Biss filed a meritless amended complaint. Harvey v. Cable News Network Inc....

It's probably not a good sign when the judge lists off all the times you've been sanctioned. Especially after warning you to tread lightly in an earlier, related case. So the following does not come as a surprise at the end of the ruling:

Considering Biss's experience as an attorney, long history of sanctionable conduct, this Court's specific warnings in Lokhova I that further frivolous actions against Halper could result in sanctions, the Fourth Circuit's comment about joining the chorus of other courts that have sanctioned Biss, defendant placing Biss on explicit Fed. R. Civ. P. 11 warning, and the frivolousness of this complaint, the Court infers an improper purpose for bringing this civil action. Accordingly, sanctions in the form of dismissal of the complaint are not sufficient to deter Biss from continued improper litigation practices, and an award of defendant's reasonable attorneys' fees for work done in this civil action after defense counsel issued his Rule 11 letter is appropriate. In the words of the Fourth Circuit, this Court has "join[ed] the chorus in sanctioning attorney Biss."....

The judge even highlights Biss' claim that the attorney's fees amount that Halper's lawyers asked for was too high, first noting that what they asked for is actually below the range established in earlier cases, and pointing out that Biss arguing that they don't have experience in this type of litigation is "meritless."

Also, this:

Plaintiff and her counsel also argue that the number of hours defense counsel spent on this civil action was inappropriate because this civil action involved a simple, "not difficult or complex" application of the litigation privilege. That characterization of hte issue is contradicted by the multiple arguments plaintiff raised in her 15-page opposition to defendant's Motion for Sanctions.

Basically, don't file crazy long and complex arguments only to then turn around and insist that the defendant's lawyers spent too much time having to deal with your arguments. The Court then decides that the sanctions should be for Biss and Lokhova to be jointly responsible for paying $33,875 in legal fees. Frankly, this seems low. And even though the Court says it chose this number to "deter further frivolous lawsuits," I'm not convinced that will work (see the list of sanctions earlier...). At some point, some court is going to need to go even further.

It's also interesting to see the Court make both Biss and Lokhova jointly responsible for the sanctions:

Lokhova obviously chose Biss to represent her in Lokhova I, must have been aware of the rhetoric he used in that complaint, and was in court when this Court admonished Biss, yet chose to retain Biss and authorize him to file this groundless new lawsuit. She is, therefore, also properly subject to this sanction.

It would be nice to see Biss finally stop filing frivolous lawsuits, but previous sanctions haven't seemed to help. And, of course underlying all of this, there's still the open question of who is paying Biss' fees in all of these lawsuits. That remains unanswered.

Filed Under: anti-slapp, defamation, devin nunes, sanctions, slapp, stefan halper, steven biss, svetlana lokhova, vexatious lawsuits

Texas Appeals Court Brushes Off Section 230 In Allowing Lawsuit Over Sex Trafficking Against Facebook To Continue

from the it-continues-because-it-continues dept

Earlier this year, we mentioned, in passing, personal injury lawyer Annie McAdams' weird crusade against internet companies and Section 230. The lawyer -- who bragged to the NY Times about how she found out her favorite restaurant's secret margarita mix by suing them and using the discovery process to get the recipe -- has been suing a bunch of internet companies trying to argue that we can ignore Section 230 if you argue that the sites were "negligent" in how they were designed. In a case filed in Texas against Facebook (and others) arguing that three teenagers were recruited by sex traffickers via Facebook and that Facebook is to blame for that, the lower court judge ruled last year that he wouldn't dismiss on Section 230 grounds. I wish I could explain to you his reasoning, but the ruling is basically "well, one side says 230 bars this suit, and the other says it doesn't, and I've concluded it doesn't bar the lawsuit." That's literally about the entire analysis:

In reviewing the statute and the cases cited by the parties, the Court concludes that the Plaintiffs have plead causes of action that would not be barred by the immunity granted under the Act.

Why? I could not tell you. Judge Steven Kirkland provides no real basis.

Either way, Facebook appealed, and the appeals court has upheld the lower court ruling with even less analysis. The only mention of Section 230 is to say that that was Facebook's reason for asking for dismissal. The court takes three paragraphs to describe the history of the case, and this is the entire analysis:

Facebook has not established that it is entitled to mandamus relief. Accordingly, we deny Facebook’s petitions for writ of mandamus.

Why? Who the hell knows. Texas courts are weird, man.

At least one judge on the panel, Justice Tracy Christopher, issued a dissent from the majority opinion. The dissent is also pretty short and sweet, and basically says "um, seems like 230 applies here, so, yeah."

I respectfully dissent from these denials of mandamus and I urge the Texas Supreme Court to review these cases. Federal law grants Facebook immunity from suits such as these. See 47 U.S.C. § 230. Because Facebook has immunity, these suits have no basis in law, and dismissal under Texas Rule of Procedure 91a is proper.

The Real Parties in Interest urge our court to adopt a construction of Section 230 that has been adopted by only a few courts. The vast majority of the courts reviewing this law have adopted the arguments made by Facebook. The artful pleading by the Real Parties in Interest should not prevail over the statute.

Also, just to be clear, since some may ask, and since this is a case about sex trafficking: FOSTA does not apply here because (1) the actions at issue happened prior to FOSTA becoming law, and (2) (as only the dissent notes), FOSTA does not apply to civil actions in state court. Still, what a weird set of rulings, that seem to go against nearly all Section 230 case law... and with basically no analysis as to why at all.

Filed Under: annie mcadams, cda 230, intermediary liability, negligence, product liability, section 230, sex trafficking, texas, vexatious lawsuits
Companies: facebook

Judge Tosses Vexatious Litigant Brett Kimberlin's Lawsuit Against Conservative Blogger

from the 'shut-up'-he-filed-repeatedly dept

Nearly six years after Brett Kimberlin first threatened to sue blogger/prosecutor Patrick Frey (a.k.a. "Patterico") over a factual post about Kimberlin's criminal past, the courtroom battle has finally come to an end.

Free speech has won.

After nearly four years, convicted bomber and perjurer Brett Kimberlin has lost his lawsuit against your favorite blogger (that’s me!). Federal District Judge George Hazel today issued an opinion granting me summary judgment in Kimberlin’s frivolous and censorious lawsuit against me.

It is a total and complete victory. There will be no trial. I will pay nothing. I will take down no blog posts about Kimberlin. The lawsuit is simply over. (Of course, he’ll appeal. He always appeals.)

My deepest thanks go to my pro bono counsel: Ron Coleman of Archer & Greiner and the Likelihood of Confusion blog, and Bruce Godfrey of Jezic & Moyse LLC.

This should have been a simple anti-SLAPP case. Should have. Wasn't. (Part of it is Maryland's weak take on anti-SLAPP.) It took four years to resolve and tons of pro bono hours. Kimberlin claimed he had been defamed by Frey's post, which was based on four news sources and covered his conviction for bombing and his rise to dubious fame as Dan Quayle's pot dealer (back when Quayle was still VP/relevant).

Kimberlin has a long history of abusive, vexatious lawsuits -- all of them filed with the intent of shutting down criticism. His defamation claim was just the tip of iceberg. In his legal threat (all the way back in 2010), Kimberlin claimed a variety of injuries from Frey's post, accusing him of cyberstalking, cyberbullying, and "interference with business."

He also said this:

I have filed over a hundred lawsuits and another one will be no sweat for me. On the other hand, it will cost you a lot of time and money and for what.

So… basically announcing up front he sued people to harass them into silence. There's a long write-up from a couple of years back at The Daily Beast that delves into Kimberlin's litigious (and criminal) history -- one that includes filing a RICO suit against political commentators and his alleged involvement in the SWATting of defendant Patrick Frey.

It's all over now but the appeals process. Free speech was ably defended by two great lawyers working for free. (You'll probably recognize Ron Coleman as the counsel in the recent Supreme Court Tam decision, which declared the trademark's board refusal to recognize "disparaging" marks was a violation of the First Amendment.)

Even though Frey's post is upbeat, this was still a four-year bogus, censorial legal battle that cost the defendant (and his reps) time and money to defend against. Despite Kimberlin pretty much admitting he files lawsuits to harass people, no court has sanctioned him for this behavior. This court doesn't either, but it does allow Patrick Frey to dismiss the lawsuit and leave all his criticism of Kimberlin intact.

What's problematic about the long-running suit is the behavior of parties on both sides. Kimberlin has made it clear he wants to intimidate people into silence. His critics want to attribute everything from SWATtings to pedophilia to Kimberlin with little real evidence*, even though a mere factual rehashing of his past legal troubles would be damning enough. But, based on his responses to all of this, Kimberlin appears to have little interest in even factual rehashings staying alive on the web. He appears to be convinced that there's a massive conservative conspiracy trying to destroy his election-related non-profit. But rather than use his position as a minor liberal icon and the open publishing platform that is the internet to repudiate assertions, Kimberlin files lawsuits.

*UPDATE: Aaron Walker -- another critic Kimberlin sued -- wrote to me to point out the accusations of pedophilia are based on Kimberlin's and his ex-wife's own statements. He also wanted to point out that, while many have written about the SWATtings that followed criticism of Kimberlin, no one (that he's aware of) has tried to directly attribute this to Kimberlin. Details on the pedophilia claims can be found over at Popehat.

His suits are little more than a form of harassment, albeit one that can't possibly be ignored by burying comments, hitting "mute/block" buttons on social media, or simply refusing to engage in arguments with him. A lawsuit must be responded to, and those who are sued are expected to fund their own defenses even when the accusations are clearly bogus. This decision is a small win for free speech and yet another cautionary tale about the abuse of the judicial system to punish bloggers and pundits for their critical words.

This lawsuit is yet another example of what it's so necessary to push for better anti-SLAPP laws, both at the federal level and at the state level. This kind of harassment would not have wasted nearly as much time and resources if there were a reasonable anti-SLAPP law protecting Frey from having to go through such a long and arduous process. Maryland's legislature, in particular, should be aware that it has failed to protect free speech by having a woefully limited anti-SLAPP law that allows cases like this to drag on and on, rather than adopting anti-SLAPP laws similar to those found in other states (like California and Texas) that actually protect free speech by ending these lawsuits much earlier in the process.

Filed Under: anti-slapp, brett kimberlin, defamation, first amendment, free speech, legal process, maryland, patrick frey, slapp, vexatious lawsuits