Nunes’ suit against Twitter

Scott has encouraged me to weigh in on the lawsuit Rep. Devin Nunes filed against Twitter and Liz Mair. Before doing so, I should say that I’m not an expert in defamation law. I did defend a few cases that alleged defamation, but this was in the pre-social media age, and the defenses we raised don’t intersect with most of the defenses applicable in Nunes’ case.

Turning now to that case, I agree with Scott that Nunes’ claims against Twitter seem highly problematic. The Communications Decency Act of 1995 appears to protect Twitter from suits over information published on its platform by another content provider. Indeed, as a matter of public policy, I don’t believe Twitter should be required to investigate every tweet to determine whether it’s true.

As for the shadow-banning of Nunes, this is, in effect, a statement by Twitter that at least some of Nunes’ content doesn’t meet “community standards.” But that statement is too subjective to constitute defamation, in my view.

Nunes’ case against Mair is also problematic. After Nunes tweeted that nothing surprises him anymore, Mair responded:

To be fair, I think the @fresnobee writing up your investment in a winery that allegedly used underage hookers to solicit investment– an allegation you’ve known about for years, during which you’ve stayed invested in it, I might add– did surprise you.

Stating that Nunes is invested in a winery he knows uses underage hookers would be defamatory, I think. But Mair didn’t tweet that. She tweeted that Nunes is invested in a winery that allegedly used such hookers and that he knows of this allegation. I’m not sure that’s defamatory.

In any event, Nunes is a public figure. Thus, he must show that Mair tweeted with actual malice — i.e., that she knew the statement was false or had a reckless disregard for its truthfulness.

Mair seems to have been relying on a story in the Fresno Bee, and she was careful to note that the use of underage hookers was only an allegation. It seems unlikely, therefore, that Nunes can prove actual malice.

However, some of the statements by other Twitter users — “Devin Nunes’ cow” and “Devin Nunes’ Mom” — may be actionable. Many of the statements cited in the complaint might pass as statements of opinion or as satire.

But some of the statements at page 16 of the Complaint might not. For example, “Devin Nunes’ Mom” accused Nunes of putting up a “Fake News MAGA” sign outside a Texas Holocaust museum. This statement, unless true, arguably casts Nunes in a false light and might be actionable on that basis.

The fact that Nunes is a public figure might not matter. Unless the publisher of this accusation can point to a good faith basis for believing that Nunes put up the “Fake News MAGA” sign outside the Holocaust museum, a jury could, I think infer actual malice here. Other vile accusations against Nunes by the same publisher, whether actionable in themselves or not, would be further evidence from which malice could be inferred.

I’m not sure how much loss of reputation Nunes suffered as a result of allegations like the one discussed above by ridiculous publishers with ridiculous Twitter handles, but it’s possible that he suffered some. Moreover, Nunes sues not only for defamation, but also for “insulting words,” under a Virginia Code section with which I’m not familiar. Thus, even in the absence of damage to reputation, Nunes may be able to recover damages for mental suffering.

Like Scott, I’m sympathetic to Nunes. The attacks against him by “Devin Nunes’ Mom” and “Devin Nunes’ Cow” are disgusting. Twitter’s shadow-banning of Nunes, if that’s what happened, is abusive.

Whether any of this gives rise to a one or more sustainable cause of action is a different question. The answer remains to be seen.

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