from the will it ever end? dept
Back in June, we wrote about how a judge had sided with Twitter in the very first of Rep. Devin Nunes’ long series of frivolous SLAPP suits, saying that the company was clearly protected from lawsuit by Section 230 and that it did not need to reveal the identity of the two satirical Twitter accounts who had mocked Devin Nunes so mercilessly that he decided to ignore his oath to protect the Constitution (which, last I checked, still includes the 1st Amendment) and sued.
Some assumed that this was the end of the lawsuit. It was not. First of all, the lawsuit against the two satirical accounts (one claiming to be Devin Nunes’ cow and one claiming to be Devin Nunes’ Mom) along with political consultant Liz Mair, were still alive and kicking unfortunately. But also, Nunes is still attempting to bring Twitter back into the case. He has filed a proposed amended complaint that his lawyer — the ever ridiculous Steven Biss — argues should get around Section 230 and make Twitter a party to the lawsuit. And… just as I originally finished writing this story, Judge John Marshall rejected that attempt. At around the same time, Liz Mair has filed her attempt to get the case against her dismissed in both this case, as well as in the second case Nunes filed against her.
Let’s start by looking at the proposed amended complaint. As “amended complaints” go, following a judge completely dismantling your legal arguments, this is… not very amended. Indeed, I scrolled through both the original and the amended complaint and they appear to be identical, page for page (if there are any changes, they are so minor as to be cosmetic, and I couldn’t see any), right up until the very, very end. While the original complaint had five claims (negligence, defamation per se, insulting words, common law conspiracy, and injunction), the new one has… six. After it includes the identical (as far as I can tell) first five claims, it adds in a sixth: “aiding and abetting.” This is Biss’s weak ass attempt to bring Twitter back into the case and get around Section 230:
Twitter aided and abetted the defamation of Nunes, the violations of §
8.01-45 of the Code, and the conspiracy by Mair, Mair Strategies, @DevinNunesMom and @DevinCow. It is, therefore, jointly liable for those torts….
Twitter actively participated in, aided and abetted Mair, Mair Strategies,
@DevinNunesMom and @DevinCow’s intentional torts by (a) knowingly hosting and
monetizing the abusive, hateful and defamatory content – providing both a voice,
exposure to a massive audience and financial incentive to the defamers – thereby material
contributing to the defamation, (b) using its algorithms and targeting capabilities to
surreptitiously and deceptively shadow-ban Nunes, impeding his speech, and, thereby,
amplifying the defamation of Mair, Mair Strategies, @DevinNunesMom, @DevinCow
and others, (c) intentionally abandoning and refusing to enforce its Terms of Service and
Twitter Rules against Mair, Mair Strategies, @DevinNunesMom, @DevinCow and
others who post defamatory statements about Nunes with the express purpose to facilitate
the defamation, (d) completely ignoring lawful complaints about offensive content and by
allowing that content to remain accessible to the public and to be republished, (e) by
permitting its platform to be populated and used by bots whose sole purpose it was/is to
republish the false and defamatory statements by Mair, Mair Strategies,
@DevinNunesMom, @DevinCow and others who post defamatory statements about
Nunes, (f) by selectively encouraging defamation of Nunes in order to further a left-wing
political agenda, to undermine public confidence in Nunes and to benefit his opponents
and opponents of the Republican Party. In this case, Twitter contributed materially to the
illegal conduct of defamers Mair, @DevinNunesMom and @DevinCow. Twitter
provided a “public square” for these Democratic political operatives. Twitter intended to
generate and proliferate the false and defamatory statements about Nunes in order to
influence the outcome of the 2018 Congressional election and to intimidate Nunes and
interfere with his important investigation of Russian involvement in the 2016 Presidential
Election. Twitter used its platform, including its proprietary algorithms, selectively to
convey its corporate/institutional viewpoint, its position on issues and candidates for
office, such as Nunes, to influence the outcome of elections, such as the 2018 election for
California’s 22nd Congressional District, and as a dumping ground for opposition
This is… not how any of this works. At all. You can’t just ignore Section 230 by claiming a website “aided and abetted” the bogus other claims you’re arguing.
And thus it did not take long for Judge Marshall to reject this in a short letter — not even getting at the ridiculous amended complaint, but rather pointing out that Biss is just bad at his job and filed his request for leave to amend way too late:
The Plaintiff in oral argument on the motion to dismiss referenced leave to amend to file an amended complaint even though there was no notice of hearing filed for that to be heard on June 12, 2020. The Plaintiff did not file a motion for leave to amend to add a count against Twitter until July 28 four days after the order had been entered dismissing Twitter from the case and over a month after Plaintiff had been notified of the dismissal of Twitter by the court’s opinion letter.
The court denies Plaintiff’s request for leave to amend as the dismissal of Twitter as a defendant occurred prior to the filing of a motion for leave to amend.
In other words, as will be no surprise to regular readers of this saga, Steven Biss is bad at his job.
As for Mair, she is trying to (quite rightly) get out of both of the nonsense SLAPP suits that Nunes has filed against her, and her arguments in both cases is the legal equivalent of “WTF is this, I don’t even…” but in legalese.
First, many (if the “statements” addressed in the Complaint consist only
of hyperlinks or editorialized descriptions, rather than the exact words of the alleged
defamatory statement. Count II must be dismissed as to each and every one of these
statements: “Good pleading requires that the exact words spoken or written must be
set out in the declaration in knee verba. Indeed, the pleading must go further–that
is, it must purport to give the exact words.” … Particularly in a case brought by an elected official against private citizens
who dared to challenge his qualifications for office, the core requirements of
defamation law must be respected.
Then her lawyer points out that even if Nunes had shown defamatory statements by Mair, which he has not, he hasn’t shown actual malice (which means that Mair knew they were false, or said them with reckless disregard to whether or not they were true), which is the required standard for defamation of a public figure. The actual malice standard — for very good reason — is where many vexatious SLAPP suits go to die:
As the Virginia Supreme Court has recognized, “the burden of proving
‘actual malice’ is upon the plaintiff[,] who must demonstrate by clear and convincing
evidence that the defendant realized that his statement was false or that he
subjectively entertained serious doubt as to the truth of his statement.”… This demanding standard applies with full force even where criticism “include[s] vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”…
The Complaint fails that standard. Its allegations of “actual malice” are
conclusory and thus inadequate…. This deficiency is not cured by Rep.
Nunes’s repeated allegations that Mair harbored “hate,” “disdain,” and “ill will”
In fact, the Complaint’s non-conclusory allegations defeat an inference
of actual malice…. Most of Mair’s allegedly defamatory statements were based directly on news reports and court filings whose truth Mair had no reason to doubt…. There is thus no valid basis to infer that she acted with a “high degree
of awareness of probable falsity.”
And then, of course, there’s the other reason why most SLAPP suits from angry, insecure, brats tend to fail: what they got mad about is usually someone’s opinion. As it was here.
Here, many of the alleged defamatory statements by Mair rank as
opinions. Those include (but are not limited to) declaring that Rep. Nunes is “a clown
with big league ethical issues,” calling him “Dirty Devin,” deeming controversial use
of PAC funds to be “a legal problem, not just an ethical or optics-related one,” stating
that Rep. Nunes should be held accountable for “having voted for warrantless
wiretapping and unlimited surveillance of Americans’ emails ([including] Carter
Page’s),” and stating that Congress should “prioritize review of Rep. Nunes’
investment and involvement in the Alpha Omega Winery, and the facts reported by
the Fresno Bee.” None of these statements can be described as objectively “true” or
“false.” Each is a subjective opinion and thus shielded by the First Amendment.
That conclusion is confirmed by context. Mair was commenting in the
political arena about the news of the day, and “[p]otentially defamatory statements”
that are “made during the course of an ongoing public controversy” are “likely to be
understood to be rhetorical opinion” rather than “assertions of fact.” Judge Robert D.
Sack, 1 Sack on Defamation: Libel, Slander, and Related Problems….
If Rep. Nunes is allowed to hold citizens liable for expressing political opinions, then
Americans throughout the Nation will face legal peril as they engage in democracy.
There’s a lot more in the response but those are the key points on the defamation claims. The other claims are just silly add-ons that are just attempts to add emphasis and try to get around the obviously bogus defamation claims. I will note the dismantling of the “conspiracy” claims is particularly fun:
In his efforts to establish a conspiratorial agreement, Rep. Nunes relies
mainly on allegations that three of the Defendants tweeted about similar subjects
and occasionally retweeted or liked each other’s tweets…. But if that
were the standard, millions of Americans would be shocked to learn that they are
enmeshed in all manner of conspiracies. It would not comport with the First
Amendment of the US. Constitution–or Article I, Section 12 of the Virginia
Constitution–to treat routine political speech on social media as a coordinated plot.
Mair does try to make use of Virginia’s (unfortunately weak, though hopefully soon to change) anti-SLAPP law. The argument in the satirical tweets lawsuit also includes the fact that Nunes appears to have sued Mair over the same basic points in his second SLAPP lawsuit (the one against McClatchy and Mair) saying that he’s trying to get two shots at this same issue in separate courts — and says it’s “improper claim splitting.”
In the filing to get out of that other case, Mair notes that this time she’s only being sued for an alleged conspiracy, which is also utter nonsense:
This lawsuit is a direct assault on the freedom of speech. Devin Nunes (a Member of
Congress) has sued Liz Mair (a private citizen) for tweeting articles critical of his conduct while
in public office–and for sharing an opinion critical of him with a reporter at McClatchy.
Nunes does not allege in this case that Mair committed defamation. Instead, he seeks to
hold Mair liable for allegedly defamatory statements published by McClatchy. To do so, he posits
that Mair somehow entered into an illegal conspiracy with McClatchy. But the most essential
element of any conspiracy claim is an agreement–a meeting of the minds–to carry out unlawful
acts together. And the Complaint comes nowhere close to adequately alleging the existence of
such a conspiratorial agreement: it fails to allege the requisite details about when, where, and how
this agreement supposedly came into being; it papers over those defects with conclusory assertions;
and it resorts to exceedingly unreasonable inferences from a mere handful of factual allegations.
Simply put, sharing political opinions with a newspaper–and then tweeting, retweeting, and liking
relevant articles by that newspaper–do not suggest the existence of an illegal conspiracy. They
are signs that we live in a democracy where people can express political opinions and criticize
elected officials on social media platforms. For good reason, no court has ever upheld a conspiracy
theory–based mainly on tweets and retweets–like the one that Nunes has advanced here.
That is reason enough to dismiss the Complaint. Yet there is more: in order to impose
liability on Mair for allegedly conspiring with McClatchy to defame him, Nunes must adequately
allege that McClatchy actually defamed him. None of the alleged defamatory statements described
in the Complaint, however, are actually defamatory: most of them are not pleaded with their exact
words and so must be dismissed; Nunes has failed to allege that any of them was published with
actual malice; and most of them are categorically non-actionable as a matter of law.
It is ridiculous that these cases have gone on this long and are still continuing. For what it’s worth the @DevinCow account has a GoFundMe campaign set up for its legal fees, and Mair is accepting funds via her Swamp Accountability Project page.
One hopes the judges in these two cases recognizes how insane all this is and benchslaps Nunes and Biss.
Filed Under: 1st amendment, anti-slapp, defamation, devin nunes, devin's cow, free speech, liz mair, satire, section 230, slapp, steven biss