1. Who is Devin Nunes?
Devin Nunes (R) has represented the Fresno area in Congress since 2003. Nunes was Chairman of the House Intelligence Committee and gained notoriety for his highly partisan handling of the Committee’s investigation to allegations into Russian interference in the 2016 elections. Nunes narrowly escaped defeat in 2018 in a Republican district.
It is worth noting that in 2017, Nunes was a co-sponsor of H.R. 1179, the Discouraging Frivolous Lawsuits Act (which dealt with suits under the Clean Water Act) and only days ago voted for an amendment “to express a sense of Congress that free speech should be protected.”
2. Nunes Really Did Sue a Fake Cow and It Is as Ridiculous as it Sounds
On Monday, Nunes filed a lawsuit in Virginia state court against parody twitter accounts Devin Nunes’ Mom and Devin Nunes’ Cow, along with Twitter and other third parties, alleging causes of action for defamation, “insulting words” and negligence (as to Twitter). Nunes’ complaint is ridiculous on many levels, including:
- The Complaint ignores the unanimous opinion of the Supreme Court in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) which held that parody and lampooning of public officials is protected under the First Amendment.
- The “insulting words” or “fighting words” claim address words that are designed to provoke an immediate physical confrontation, something impossible from a tweet sent from an unknown person in cyberspace.
- Twitter has no liability for the parody accounts under Section 230 of the Communications Decency Act which immunizes internet platforms from liability for third-party content.
3. A California Congressman Sued a California Company in Virginia Most Likely to Avoid Liability for Filing a Frivolous Lawsuit
Despite being a native Californian representing California in Congress, Nunes filed his suit against Twitter, which is based in California, in Virginia’s Henrico County Circuit Court. This most likely is because he is seeking to avoid California’s strick anti-SLAPP (Strategic Lawsuits Against Public Participation) laws that impose sanctions on parties filing frivolous actions arising from protected speech. This in itself is practically an admission that Nunes recognizes that the suit is frivolous. Virginia does have an anti-SLAPP law, albeit not as robust as California’s, and Nunes could face liability nonetheless.
4. Nunes’ Counsel Has Been Suspended Twice
Another entry in the “you just can’t make this up department,” is the fact that Nunes, whose handling of the Russia probe triggered a Congressional ethics investigation, hired a Virginia lawyer (Steven Biss of Charlottesville) who was twice suspended by the Virginia Bar – once for “assisting a client in conduct he should have known was criminal or fraudulent” and then continuing to practice while suspended. Biss also was reprimanded for a conflict of interest involving a former client.
5. Nunes Ignored the Streisand Effect
Nunes’ lawsuit also was a strategic blunder because of the “Streisand Effect,” i.e., filing a lawsuit about offending posts may result in drawing more attention to them. That is exactly what happened here. Prior to the lawsuit, @DevinCow had approximately 1,200 followers. Now, the account has 553,000 followers compared to only 396,000 for Nunes.
6. Nunes is Part of a Trend of Conservatives Suing Big Tech
Nunes lawsuit, given its many flaws, should really be seen as a political act. As Ars Technica points out, “[r]ecent years have seen a rash of lawsuits brought by conservative political figures against big technology companies.” While unsuccessful, these lawsuits allow the plaintiffs
to portray themselves as the heroes in David-and-Goliath struggles against increasingly unpopular technology giants. Filing a lawsuit against a big technology company is an easy way for right-leaning people and organizations to raise their own profiles. . . . Nunes’ lawsuit has plenty of signs that it was written for grassroots conservatives as much as for the judge in the case.
Even as a political act, the lawsuit may still be a blunder since as his hometown newspaper, The Fresno Bee, has skewered him over the lawsuit.
In Nunes’ universe, it’s OK to label The Bee as “fake news” and spread falsehoods that we send reporters to “participate” in demonstrations and “creep around” his 98-year-old grandmother’s house. But not for a parody Twitter account to call him “a treasonous cowpoke” or say he’s “whey over his head in crime.”
Which not only makes our congressman a hypocrite, but also a thin-skinned humorless lout.
The Bee concludes that the net result of the lawsuit is that “[t]o all but his staunchest allies, our Congressman is even more of a laughingstock.” If that is true, will milk come out of their nose when they laugh?
Nunes’ lawsuit is below.