California Congressman Devin Nunes earlier this week sued Twitter, two parody accounts and political consultant Liz Mair for defamation.
The complaint, lodged in Henrico, Virginia Circuit Court, seeks a whopping $250 million due to the defendants’ alleged “Negligence, defamation per se insulting words and civil conspiracy.”
It says Twitter should be held liable for the parody accounts and Mair’s allegedly false and malicious statements.
But federal law says internet service providers are not responsible for content posted by third parties. Additionally, the Supreme Court ruled in 1988 that parody and opinion are First Amendment protected expression.
Some of the statements by Mair cited in the lawsuit, like calling the congressman “Dirty Devin,” sound like opinions rather than factual assertions. But one legal scholar told the California Globe that other stuff she said about Nunes are factual assertions which, if false as he alleges, are not protected under the First Amendment.
Is the whole claim a publicity stunt?
The facetious Twitter accounts that supposedly defamed Nunes are @DevinCow and @DevinMom.
The lawsuit says somberly that, “Devin Nunes’ cow has made, published and republished hundreds of false and defamatory statements of and concerning Nunes” including that Nunes is a “treasonous cowpoke” and “Devin’s boots are full of manure. He’s udder-ly worthless and its pasture time to move him to prison.”
Similarly, @DevinNunesMom “falsely stated that Nunes was unfit to run the House Permanent Select Committee on Intelligence” and “falsely stated that Nunes was ‘voted ‘Most Likely to Commit Treason’ in high school.’”
The lawsuit also accuses Twitter of conspiracy and negligence for discriminating against him because he is a conservative Republican congressman. Nunes was a high-profile target for the DCCC in the midterms but held on in a tighter race than usual.
“@LizMair, @DevinNunesMom, @DevinCow, @fireDevinNunes, and @DevinGrapes repeatedly tweeted and retweeted abusive and hateful content about Nunes that expressly and undoubtedly violated Twitter’s Terms and Rules.”
But Twitter “did nothing to investigate or review the defamation that appeared in plain view on its platform. Twitter continuously allowed the defamation of Nunes to continue” because of “its agenda to squelch Nunes’ voice, cause him extreme pain and suffering, influence the 2018 Congressional election, and distract, intimidate and interfere with Nunes’ investigation into corruption and Russian involvement in the 2016 Presidential Election.”
However, Twitter suspended @DevinMom in 2019 after his real mother voiced objections, the lawsuit says.
The Twitter press office told the California Globe it is not commenting on the case.
As for Mair, Nunes claims that she “relentlessly smeared and defamed Nunes during the campaign, filming stunts at Nunes’ office in Washington, D.C. and posting them online, publishing videos on YouTube that falsely accused Nunes of multiple crimes, repeatedly publishing false and defamatory statements on Twitter, defaming Nunes online and to the press, and filing fraudulent ethics complaints against Nunes accusing him, inter alia, of violating House Ethics Rules.” (“Inter alia” is a fancy way of saying, “among other things.”)
“Mair falsely tweeted to her 37,900 followers, inter alia, that Nunes ‘voted for warrantless wiretapping and unlimited surveillance of Americans’ emails [and] that Nunes broke the law when he ‘spent contributions that are supposed to be used for the express purposes of the PAC or committee in question, and not for financing their personal lifestyle choices. That is a legal problem, not just an ethical or optics-related one.’”
Reached on his cell phone, Mark Tushnet, a First Amendment expert at Harvard Law School, told the California Globe that he saw nothing “actionable” with the claims against Twitter and the parody accounts. But if Mair files a motion to dismiss that “should fail,” he explained, because the statements cited in the complaint are factual.
Defendants’ motions to dismiss generally argue that even if the facts cited in the complaint are accurate they don’t amount to a violation of the law.
(Tushnet, who seems like a cool guy because he leaves his cell phone number on his voicemail, whereas lots of folks guard it like some kind of state secret, made similar comments to Vox.com)
Mair said on MSNBC Tuesday night that she would not discuss the specifics of the lawsuit but she did allow that, “I’m a libertarian Republican and I believe extremely strongly in the Bill of Rights and in our Constitution—all of it, not just parts of it, all of it—and that includes the First Amendment. And I hope that Representative Nunes does too, because he’s actually sworn an oath as a member of Congress to support and uphold and protect the Constitution.”
She accused Nunes of “trying to use litigation as a cudgel to stifle free speech.”
The congressman, ironically enough, as Washington Post reporter Aaron Blake wrly pointed out, co-sponsored legislation designed to curb supposedly frivolous lawsuits.
Renowned civil libertarian Norman Siegel, who was vaguely familiar with the case, told this reporter that defendants generally have 20 days to respond.
With its stock at a one-month high and more than double where it was during the doldrums of Summer 2017, Twitter presumably has plenty of resources to defend itself in court. Ms. Mair, however, has started a fund to accept donations from those who want to help her stand up to attacks on her First Amendment rights.
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