Devin Nunes Loses Yet Another SLAPP Suit, This Time In California

Free Speech

from the anti-slapp-ftw dept

Devin Nunes’ campaign to intimidate and silence his critics with a flood of SLAPP suits has hit another stumbling block. While he and his lawyer, Steven Biss, had mostly avoided filing lawsuits in states with strong anti-SLAPP laws, including his “home” state of California, for some reason in the fall of 2020 he sued Twitter and someone named Benjamin Meredith in California state court.

The lawsuit implied that Meredith was connected to the @DevinCow account that has vexed Nunes for so long. From the initial complaint:

Meredith controls multiple anonymous Twitter accounts that he uses multiple times daily to viciously attack Plaintiff. With Twitter’s knowledge and direct participation, Meredith in violation of § 1708.7 of the California Civil Code has used Twitter in the past two years to deploy thousands of incendiary and hateful comments with the intent to injure, alarm, harass, dox and intimidate Plaintiff.

A somewhat bizarre part of the lawsuit is the claim that while Meredith himself is not behind the @DevinCow account, he may be married to the person behind the account. This may be tough to follow because none of it makes much sense, but Nunes filed a declaration (this all starts on page 110 of the massive document removing the case to federal court) in the lawsuit saying that his attorneys connected Meredith to the @DevinCow account by finding a WordPress blog that showed a tweet that simply claimed (with no evidence) the name of the person they believed was behind the DevinCow account, and naming her (locked) Twitter account. That account had a bio description that read “Mom, wife, therapist, dog friend.”

Nunes’ declaration then states that his lawyers searched and found another Twitter account with the same bio — “Mom, wife, therapist, dog friend” — belonging to Meredith’s wife. If this all seems like quite a stretch, well… yeah.

There were two main claims in the case: stalking and common law commercial misappropriation (because of products mocking Nunes). Early on in the case, Nunes dropped Twitter from the lawsuit. Meredith removed the lawsuit to federal court and filed an anti-SLAPP motion under California’s anti-SLAPP law.

And, well, let’s just say that Judge Jennifer Thurston is not the first judge who is less than impressed by a Biss/Nunes production dismissing the complaint under California’s anti-SLAPP law. She does, however, allow Nunes the opportunity to file an amended complaint, so this is likely not over yet.

First up, the court finds that on the claims of cyberstalking, it all covers clearly protected speech, and speech that is in the public interest:

As Nunes himself explains, he is a United States Congressman, representing California’s 22nd Congressional District and serves as a Ranking Member of the House Permanent Select Committee on Intelligence. (Id. at 67.) “High profile individuals,” such as politicians and celebrities, are persons in the public eye and of public interest that typically receive “extensive media scrutiny.” Jackson, 10 Cal. App. 5th at 1254 (finding statements on social media regarding a celebrity’s various medical conditions and treatments are matters of public interest); see also Henley v. Jacobs, 2019 WL 8333524, at *9 (N.D. Cal. Aug. 2, 2019) (concluding statements regarding “competitors and politicians, unquestionably concern an ‘entity in the public eye’ on a matter of ‘widespread public interest’”).

Meredith’s commentary on Nunes as a political leader constitutes a topic of widespread public interest because “the right to speak on political matters is the quintessential subject of our constitutional protections.” Collier, 240 Cal. App. 4th at 52-53 (holding the registration of domain names for websites used to endorse and discuss political candidates was in furtherance of protected speech under the anti-SLAPP statute); Roberts v. Los Angeles Bar Assn., 105 Cal. App. 4th 604, 614 (2003) (internal quotations omitted) (“Public discussion about the qualifications of those who hold or wish to hold positions of public trust presents the strongest possible case for applications of the safeguards afforded by the First Amendment.”). Critiques of Nunes’s qualifications as political leader, such as statements about his criminal history, further underscore a public interest concern. Matson v. Dvorak, 40 Cal. App. 4th 539, 543, 548 (1995) (affirming trial court’s dismissal of a political candidate’s invasion of privacy claim where a flyer alleged the candidate owed hundreds of dollars to the police department for unpaid fines).

Nunes does not dispute that Meredith’s Tweets concern a widespread public interest or that he is in the public eye. Instead, Nunes broadly asserts that “[w]hen words are part of a pattern of stalking or harassing behavior, they do not constitute protected speech.” (Oppo. to Strike at 64.) Nunes provides no authority to support his assertion. Despite listing approximately three pages of case law, none offer any guidance to interpret the protections of California’s anti-SLAPP statute. (Id. at 64-66.) The vast majority of Nunes’s authorities originate from other jurisdictions, irrelevant to California law. (Id.) The few cases Nunes cited from the Ninth Circuit and California courts, do not involve challenges to the anti-SLAPP protections, but rather analyzed First Amendment protections to rebut stalking and harassment allegations. See, e.g., People v. Borelli, 77 Cal. App. 4th 703, 716 (2000); United Artists Corp. v. United Artist Studios, LLC, 2019 WL 6917918, at *10 (C.D. Cal. 2019). Nunes did not explain how the First Amendment protections apply to the analysis of step one under the anti-SLAPP statute. To the contrary, the California Legislature “did not limit the scope of the anti-SLAPP statute to activity protect by the constitutional rights of speech and petition. It went on to include ‘any act . . . in furtherance of’ those rights.” City of Montebello v. Vasquez, 1 Cal.5th 409, 421 (2016) (emphasis in original). Accordingly, when determining the scope of anti-SLAPP protections, courts must look to “the statutory definitions in section 425.16, subdivision (e),” not simply to First Amendment law. Id. at 422; see also Dean v. Friends of Pine Meadow, 21 Cal. App. 5th 91, 106 (2018) (citing Montebello, 1 Cal. 5th at 422) (“Montebello precludes plaintiffs from using substantive First Amendment principles to limit the scope of protection afforded by the anti-SLAPP law.”).

Nunes insists that he’s suing over conduct, not speech, but the court brushes that off, noting that:

Nunes again provides a lengthy list of inapplicable cases, by citing unpublished opinions4 from California courts. (Id. at 74-75.) Notably, the statute explicitly covers conduct not merely speech. See Cal. Civ. Proc. § 425.16(b) (emphasis added) (protecting “any act of that person in furtherance of the person’s right of petition or free speech”). Thus, Nunes has no authoritative rebuttal to the conclusion that the alleged behavior giving rise to his claims falls under the protected activity of the anti-SLAPP statute.

The court does note that it’s possible that Nunes could make a case for stalking under California law that would not be protected by the 1st Amendment… but failed to do so:

Nunes did not provide any corroborating evidence such to satisfy this element of the civil stalking statute. Despite alleging that Meredith posted thousands of statements disparaging and threatening Nunes on Twitter, a public and freely accessible platform, Nunes did not provide any of these allegedly offending posts to the Court. (See Doc. 1 at 14.) Nunes did not submit any communications or statements by Meredith to corroborate his allegation that Meredith posted thousands of Tweets disparaging Nunes.

Instead, the court notes, the only “evidence” Nunes provided actually “undermines rather than corroborates his claim.”

Specifically, the judge notes the weird attempt to connect the @DevinCow account to Meredith, and claiming it’s run by his wife. The court notes that Nunes claims that Meredith’s wife was tagged in many of Meredith’s tweets, but notably:

Nunes, however, did not submit any of these “innumerable” Tweets…

The court also notes that Nunes claims that Meredith is married to the person alleged to be behind the DevinCow account based on “Whitepages” but “likewise failed to provide this alleged evidence.”

But, more to the point, the court notes that the only actual evidence Nunes provided about this supposed harassment and stalking points to Meredith’s alleged wife, and not to Meredith himself.

While the 12(b)(6) standard requires the Court to take facts in the light favorable to the plaintiff and make reasonable inferences, it does not require the Court to make illogical leaps…. Accordingly, none of the documentary evidence provided by Nunes connects Meredith to the alleged harassment or stalking. Thus, Nunes has failed to sufficiently plead all explicit elements of stalking claim

This is the part that the judge allows Nunes to amend, but he would have to present some actual evidence this time to support the allegations.

As to Nunes’s stalking claim, if he can submit with his amended complaint, independent corroborating evidence to satisfy the statutory requirement under California Civil Code § 1708.7(a)(1), Nunes may sufficiently state a claim and a probability of success to overcome the anti-SLAPP motion at the motion to dismiss stage. Therefore, amendment as to the stalking claim would not be futile, and the Court GRANTS leave to amend claim one

The misappropriation claim, on the other hand, has no chance whatsoever.

The basic allegations forming Nunes’s claim indicate any alleged use of Nunes’s name or likeness bears on a public issue because Nunes is a politician in the public eye. (See Oppo. to Strike at 67-69; Mtn. Strike at 17- 18.) Regardless of any additional facts that Nunes may plead, his current allegations, accepted as true, revolve around Nunes’s role as a political figure. Any misappropriation of his identity or likeness in this context would fall into the public affairs exception under § 3344(d). Thus, amendment of additional facts would be futile to remedy Nunes’s commercial misappropriation claim.

So, this case seems to be on its last legs, but Biss and Nunes get at least one more shot at proving civil stalking.

Of course, should that fail, under California’s anti-SLAPP law, Nunes may be on the hook for Meredith’s legal fees.

Filed Under: 1st amendment, anti-slapp, benjamin meredith, devin nunes, free speech, stalking