Devin Nunes' Lawyer Tells Judge To Ignore Section 230, Because Twitter Is Anti-Devin Nunes
from the this-is-not-a-winning-strategy dept
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.
?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.