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.