from the the-nunes-effect dept
Last year, Devin Nunes co-sponsored the Discouraging Frivolous Lawsuits Act. Twelve days ago, he voted for a House Amendment “to express a sense of Congress that free speech should be protected.”
And yesterday, he sued an internet cow for making fun of him.
By now you may have heard, as first reported by Fox News, that Rep. Devin Nunes — who spent two years making a total mockery of the House Intelligence Committee — has decided to sue Twitter and some satire accounts, and a real political commentator for a variety of “offenses” from defamation to shadow banning. The complaint, filed in a local court in Virginia, is not yet available anywhere but Fox News’ posting of it (so you can click the link above, but we can’t embed it yet).
Let’s just get the first part out of the way: the complaint is utter nonsense. It is a complete joke. It makes a total mockery of the judicial system and its an embarrassment that Nunes thought this was a good idea. We’ll get into the details in a moment, but rest assured, we see a lot of really dumb lawsuits, and this one is up there on the list of truly special ones.
At the very least, it highlights exactly what kind of content gets under his skin. It’s mostly a bunch of dumb tweets mocking Nunes that not that many people saw… and now absolutely everyone will see. Apparently, Rep. Nunes has never heard of the Streisand Effect, but he’s learning quite a bit about it now.
Let’s dig in. The caption for the lawsuit is… truly special:
If you can’t see that, it lists Nunes as the plaintiff followed by four defendants: Twitter, Liz Mair, and then two obviously satirical Twitter accounts: @DevinNunesMom and @DevinCow. Yeah.
The lawsuit does not get any better from there. He’s seeking $250 million and almost every argument in the lawsuit is beyond laughable. The very first footnote, on the first page, completely misrepresents Section 230 of the CDA to a laughable degree:
The term ?information content provider? means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
See Title 47 U.S.C. § 230(f)(3). The word responsible
ordinarily has a normative connotation.
The Oxford English Dictionary 742 (2nd ed. 1998) (stating one definition of
responsible as ?Morally accountable for one?s actions.?). As one authority puts it: ?[W]hen we say, ?Every man is
for his own actions,? we do not think definitely of any authority, law, or tribunal before which he must answer, but rather of the general law of right, the moral constitution of the universe….? James C. Fernald, Funk & Wagnalls Standard Handbook of Synonyms, Antonyms, and Prepositions 366 (1947). Synonyms for
in this context are
blame, fault, guilt,
Oxford American Writer?s Thesaurus 747 (2nd
ed. 2008). Accordingly, to be ?responsible? for the development of offensive content, such as defamation, one must be more than a neutral conduit for that content. One is not ?responsible? for the development of offensive content if one?s conduct was neutral with respect to the offensiveness of the content (as would be the case with the typical Internet bulletin board). We would not ordinarily say that one who builds a highway is ?responsible? for the use of that highway by a fleeing bank robber, even though the culprit?s escape was facilitated by the availability of the highway. Twitter is ?responsible? for the development of offensive content on its platform because it in some way specifically encourages development of what is offensive about the content.
FTC v. Accusearch, Inc.
, 570 F.3d 1187, 1198-1199 (10th
Cir. 2009) (citing
Fair Housing of Council of San Fernando Valley v. Roommates.com, LLC
, 521 F.3d 1157, 1168 (9th
Cir. 2008) (?a website helps to develop unlawful content ?if it contributes materially to the alleged illegality of the conduct.?)
This is totally misrepresenting Section 230 and a variety of lawsuits around it. It focuses in, bizarrely, on the definition section 230(f)(3) ignoring what the law actually says in 230(c)(1) and (2) about the lack of liability for the platforms. Instead, it focuses narrowly on “responsible” as if that’s all the law says. It’s wrong and no court agrees with this analysis. Indeed, it misrepresents two key CDA 230 cases to try to make this point. The Accusearch case involved a databroker that sold user data, and tried to claim Section 230 immunity after the FTC sued. But as the court found, since Accusearch itself was selling the data, and that was the action the FTC went after the company for, it was liable for those actions, not the user-generated content. And, in the Roommates case, the 9th Circuit was pretty clear that while Roommates could be found liable for violating the Fair Housing Act, it would only be on the specific content that Roommates.com itself created (namely, a pulldown menu for users to disclose their sex, family status and sexual orientation — which the court ruled could lead to discrimination). Again, in both cases, the law is specifically applied not to any of the content by users, but specifically to direct content or actions done by the platforms themselves.
Nunes is trying to use those cases to argue that Twitter loses its CDA 230 immunity because it’s moderating content, because those moderation choices are actions, a la what happened in Accusearch and Roommates:
Twitter is an information content provider.
Twitter creates and develops content in whole or in part, through a combination of means: (a) by explicit censorship of viewpoints with which it disagrees, (b) by shadow-banning conservatives, such as Plaintiff, (c) by knowingly hosting and monetizing content that is clearly abusive, hateful and defamatory ? providing both a voice and financial incentive to the defamers ? thereby facilitating defamation on its platform, (d) by completely ignoring lawful complaints about offensive content and by allowing that content to remain accessible to the public, and (e) by intentionally abandoning and refusing to enforce its so-called Terms of Service and Twitter Rules ? essentially refusing to self-regulate ? thereby selectively amplifying the message of defamers such as Mair, Devin Nunes? Mom and Devin Nunes? cow, and materially contributing to the libelousness of the hundreds of posts at issue in this action.
This interpretation literally ignores basically every Section 230 decision (other than the two it misreads entirely) and completely ignores the entire point of the law, which is to immunize platforms in response to their moderation choices. Remember, CDA 230 was passed in response to the ruling in Stratton Oakmont v. Prodigy that found Prodigy liable for moderation choices it had made. The entire point of the law is that making moderation choices for user content leaves you immune from liability.
Furthermore, there is no actual evidence of conservative bias on Twitter, and another lawsuit claiming the same thing got tossed out just last week. As for the claim of “shadowbanning,” Nunes is again completely misrepresenting reality. Last year, we wrote about this (in the context of Devin Nunes grandstanding on this), but the claims of “shadowbanning conservatives” was based on a misleading report in Vice. There was a temporary glitch in Twitter’s “autocomplete” feature, that meant that some users’ names did not show up in the autocomplete pulldown, and some people noticed that some of those impacted were well known conservatives. That’s it. They were not shadowbanned. It was a temporary glitch for a very tiny feature (autocomplete) that had no bearing on whether or not users could find those impacted. And it impacted over 100,000 users, not just conservatives.
The story we wrote last year mocked Nunes for insisting he was considering taking legal action over this, and we would have thought that maybe lawyers would have talked him off of this, but apparently not. In short, the entire legal basis for including Twitter in this lawsuit is nonsense.
And from there, the complaint gets even worse. Because most of the lawsuit is little snowflake Devin Nunes whining about how a couple of satirical Twitter accounts, as well as one Republican political commentator, mocked him mercilessly, and Nunes just can’t take it. If you want to know how to get under Devin Nunes’ insanely thin skin, he’s just given the entire world a guide.
We seriously don’t have enough time to go through all of the claims in the lawsuit, but suffice it to say almost all of them are (a) opinions, (b) opinions based on clearly disclosed facts, or (c) rhetorical hyperbole. And note: none of those are defamatory. Also, the complaints reveal what Nunes is most afraid of: people looking into his “family farm” that is so much a part of his origin story, as well as an investment he made in a Napa winery. While the lawsuit doesn’t go after these two articles, he does seem to consider references to the following two articles magically defamatory. And therefore, you should probably join in with thousands of others people today in reading the following two articles from last year:
- First up, an article in the Fresno Bee about Nunes investment in a Napa winery, with the following headline: “A yacht, cocaine, prostitutes: Winery partly owned by Nunes sued after fundraiser event.” That can’t look good. The details do show that it was merely a winery that Nunes had invested in, and there’s no allegations that Nunes had anything to do with the yacht, cocaine or prostitutes, but Nunes has carefully tried to avoid commenting on it, leading to even more coverage. And Liz Mair keeps reminding him of all of this, leading Nunes to call the following tweet the “most egregious and defamatory” of her tweets towards Nunes:
This is not defamatory. The facts stated are not in dispute. The Fresno Bee wrote about the story. Nunes did invest in the winery. The winery was involved in a lawsuit where it was alleged that prostitution was used on a boat and it was alleged in the lawsuit that some of the prostitutes appeared to be underage.
- Then we have this truly amazing story in Esquire by Ryan Lizza about how Devin Nunes’ family sold their California farm, opened a new dairy farm in Rep. Steve King’s district in Iowa, where nearly all of the farms in the area employ undocumented workers. The story is completely worth reading, and I would have never known about it, absent this lawsuit (there’s a term for that…). Basically Lizza goes to Sibley, Iowa to try to track down why Nunes is so secretive about his family moving there, and discovers a friendly set of people in the town who readily admit that they think Steve King and Donald Trump’s views on immigration are bad, and worry that ICE raiding the farms in the town would put all the farms out of business. But, then Lizza is basically chased out of town by Nunes family — and, amazingly, at the same time a years-old article that Lizza had used to find out about the Nunes’ farm in Iowa magically disappears from the internet.
The rest of the lawsuit, concerning the two satirical accounts @DevinNunesMom and @DevinCow are truly something to behold. This is “someone is mad online” in the form of a $250 million lawsuit. I mean, look, when your lawsuit has this paragraph, I’m afraid you’ve already lost:
Defendant, Devin Nunes? Mom, is a person who, with Twitter?s consent, hijacked Nunes? name, falsely impersonated Nunes? mother, and created and maintained an account on Twitter (@DevinNunesMom) for the sole purpose of attacking, defaming, disparaging and demeaning Nunes. Between February 2018 and March 2019, Twitter allowed @DevinNunesMom to post hundreds of egregiously false, defamatory, insulting, abusive, hateful, scandalous and vile statements about Nunes that without question violated Twitter?s Terms of Service and Rules, including a seemingly endless series of tweets that falsely accused Nunes of obstruction of justice, perjury, misuse of classified information, and other federal crimes
This is followed by a bunch of tweets from @DevinNunesMom, almost all of which are clearly rhetorical hyperbole, accusing Nunes of not caring about his district and of engaging in obstruction of justice (a claim based on some of Nunes’ activity as Chair of the House Intelligence Committee, in which he seemed much more focused on protecting the President, rather than actually doing his job). And then there’s all of this, none of which is really defamatory. It’s just part of being a public person (indeed, an elected official) online:
In her endless barrage of tweets, Devin Nunes? Mom maliciously attacked every aspect of Nunes? character, honesty, integrity, ethics and fitness to perform his duties as a United States Congressman. Devin Nunes? Mom stated that Nunes had turned out worse than Jacob Wohl;
falsely accused Nunes of being a racist, having ?white supremist friends? and distributing ?disturbing inflammatory racial propaganda?; falsely accused Nunes of putting up a ?Fake News MAGA? sign outside a Texas Holocaust museum; falsely stated that Nunes would probably join the ?Proud Boys?,
?if it weren?t for that unfortunate ?no masturbating? rule?; disparagingly called him a ?presidential fluffer and swamp rat?; falsely stated that Nunes had brought ?shame? to his family; repeatedly accused Nunes of the crime of treason, compared him to Benedict Arnold, and called him a ?traitor?, ?treasonous shitbag?, a ?treasonous Putin shill?, working for the ?Kremlin?; falsely stated that Nunes was ?100% bought and sold. He has no interest remaining for his constituents?; falsely accused Nunes of being part of the President?s ?taint? team; falsely stated that Nunes was unfit to run the House Permanent Select Committee on Intelligence; falsely accused Nunes of ?secretly hat[ing] the people he?s supposed to serve?; falsely accused Nunes of being a ?lying piece of shit?; falsely stated that Nunes would lose custody of his children and was going to ?the pen?; falsely accused Nunes of receiving pay for undermining ?American Democracy?; falsely stated that Nunes was ?the most despicably craven GOP public official? and that ?Devin might be a unscrupulous, craven, back-stabbing, charlatan and traitor, but he?s no Ted Cruz?; falsely stated that Nunes was ?voted ?Most Likely to Commit Treason? in high school?; falsely stated that ?The people of California?s Central Valley are upright folk who work hard, look you square in the eye and give you a firm handshake. And then there is @DevinNunes?; falsely stated that Nunes is ?not ALL about deceiving people. He?s also about betraying his country and colluding with Russians?; stated ?I don?t know about Baby Hitler, but would sure-as-shit abort baby Devin?; falsely stated that ?Alpha Omega wines taste like treason?; falsely stated that ?@DevinNunes wanted me to tell everyone that he?ll be releasing a pic soon to get ahead of that AMI thing, and that it only looks that way because of all the blow?; falsely suggested that Nunes might be willing to give the President a ?blowjob?; falsely stated ?@Devin Nunes look @SpeakerRyan is removing @Rep_Hunter from his committee seat because he?s corrupt and incompetent. I wonder why he let you keep yours??; falsely accused Nunes of ?covering up Trump?s conspiracy against the United States?; falsely accused Nunes of lying to Congress; falsely accused Nunes of suborning ?perjury?; falsely stated that ?@Devin Nunes is DEFINITELY a feckless cunt?; falsely stated that ?[i]f you vote for @Devin Nunes the terrorists win?; falsely stated ?please don?t call @DevinNunes compromised. He?s not at all. He?s a complete and total fucking traitor?; falsely stated that Nunes was a ?spy? in Congress ?passing along information to the subject of a federal investigation?; falsely stated that Nunes knows ?a thing or two about throwing away evidence, don?t you Scabbers?; falsely claimed that Nunes was ?WANTED? and hiding and ?hopes he doesn?t get indicted?; falsely claimed that Nunes would ?probably see an indictment before 2020?; and even falsely stated that Nunes has ?herp-face?.
Seriously, there is way too much to comment on in there, but pretty sure none of that is defamatory. It’s mocking and disparaging, and lots of it contains rhetorical hyperbole, but defamatory? How do you prove whether or not someone has a “her face”? Also, apparently Nunes would like it to be known that he thinks it breaks the law to refer to him as a “presidential fluffer and swamp rat.” Also, the “taint team” reference apparently makes it clear that Nunes and his lawyer don’t understand puns. Which, you know, not a good look.
And then the part that is getting the most attention of all:
Many of the tweets were vile and repulsive, including tweets that depicted Nunes engaged in sexual acts with the President:
On to Devin’s Cow.
Defendant, ?Devin Nunes? cow?, a person who, with Twitter?s consent, created and maintains an account on Twitter (@DevinCow) for the sole purpose of attacking and defaming Nunes. [https://twitter.com/devincow?lang=en]. @DevinCow has 1,204 followers. Like Devin Nunes? Mom, Devin Nunes? cow engaged a vicious defamation campaign against Nunes that lasted over a year. Devin Nunes? cow has made, published and republished hundreds of false and defamatory statements of and concerning Nunes, including the following: Nunes is a ?treasonous cowpoke?; ?prosecutors? were ?investigating Devin Nunes?; ?Nunes needs to be investigated. He knew the truth, yet conspired with a criminal, @realDonaldTrump, to conceal the facts from the investigation. Nunes is a criminal too?; ?718 more days until your term is up, Devin. Unless Mueller indicts you first?; ?724 more days, Devin, unless the indictment comes first?; ?It?s on, Ranking Member Nunes. #nunesindictment?; ?Devin Nunes is a traitor?; ?Devin Nunes used Leadership PAC funds on luxury vacay in his family?s native Portugal?; Nunes hung out with the Proud Boys at a private invite-only fundraiser; ?Devin?s boots are full of manure. He?s udder-ly worthless and its pasture time to move him to prison?; ?Devin is whey over his head in crime ? I bet @DevinNunes? cocaine yacht and underage prostitutes won Trump over #AlphaOmega!?
Incredibly, the lawsuit also whines about two other satirical accounts mocking Nunes, but doesn’t sue them:
Among these additional Twitter accounts are ?Fire Devin Nunes? (@fireDevinNunes) and ?Devin Nunes? Grapes? (@DevinGrapes). The additional Twitter accounts followed the same pattern as @DevinNunesMom and @DevinCow, and published the same false and defamatory statements Nunes was involved in underage prostitution, etc. Fire Devin Nunes published memes of Nunes in prison attire. In a July 30, 2018 post, Devin Nunes? cow retweeted the following:
Complaining that one of the satirical accounts mocking you retweeted another satirical account mocking you does not suggest you’re a big believer in free speech, Nunes.
Anyway, two other points on all of this. As first pointed out by Gabriel Malor, the supposed free speech supporting Devin Nunes first argues that “The ability to use Twitter is a vital part of modern citizenship” and that “Twitter is essential for an individual to . . . engage in any level of political organizing in modern America” just a few paragraphs before demanding that Twitter should permanently suspend Liz Mair’s account. It actually goes beyond that. It doesn’t just say these accounts should be permanently suspended, but that all of their likes should be removed.
In order to protect Nunes?s property interests and his reputation, Nunes requests the Court (a) to Order Twitter to reveal the names and contact information of the persons behind the accounts ?Devin Nunes? Mom?, ?Devin Nunes? cow?, ?Fire Devin Nunes? and ?Devin Nunes Grapes?, and (b) to permanently enjoin and order Twitter to suspend @LizMair, @DevinNunesMom and @DevinCow and to deactivate all hyperlinks to all tweets, retweets, replies and likes by @LizMair, @DevinNunesMom and @DevinCow that contain false and defamatory statements about Nunes.
Yeah, you see, while Twitter can make moderation decisions on its own, no court can order such a result, as it would clearly violate the First Amendment. You know, that thing that Nunes is supposedly sworn to protect.
The other key point. As the lawsuit notes, the @DevinCow account had 1,204 followers when the lawsuit was filed. This morning, just 1 day after the lawsuit was filed, it currently has 106,000. And it will probably have more by the time you look at it. The @DevinNunesMom account has been suspended by Twitter, however. Still, congrats to Devin Nunes for telling lots of people about these accounts, and just what kinds of satire you are unable to live with, and which you insist requires people pay you $250 million for.
Despite the fact that both Twitter and Nunes are based in California, Nunes chose to file the lawsuit in a local court in Virginia. Twitter and the other defendants may be able to remove it to federal court, but Virginia’s anti-SLAPP law is not nearly as strong as California’s. In particular, Virginia’s anti-SLAPP law does not do the one thing most important in anti-SLAPP statutes: allow the defendants in SLAPP suits to stop lawsuits before they get ridiculously expensive:
Unlike California and other states, the Virginia statute does not create a special procedure for filing anti-SLAPP motions requiring judge?s to conduct an early assessment of the plaintiff?s probability of success; there is no presumptive limitation of discovery, and no provision for an interlocutory appeal when anti-SLAPP motions are denied.
That means that, as ridiculous as this lawsuit obviously is, it may still end up costing the defendants a lot of money to get it tossed out. And, thus, we have a case in which an elected official is using the burdens of the legal system to tie up some of his critics in a wasteful, time-consuming, expensive mess that could take years to resolve. That’s an incredibly shameful thing for a politician who literally supported a bill against “frivolous lawsuits.” Devin Nunes is deserving of mockery for a variety of reasons, and this lawsuit is one of them.
Filed Under: cda 230, conservative bias, devin nunes, devin nunes cow, devin nunes mom, free speech, frivolous lawsuits, intermediary liability, liz mair, section 230, shadow banning, thin skin