This falls into the category of “you can’t make this stuff up.”
Donald Trump’s co-conspirator and accessory after the fact to obstruction of justice, Rep. “Midnight Run” Devin Nunes, is suing Twitter and a satirical cow over mean tweets. (He ought to be concerned about being indicted by the Special Counsel).
Rep. Devin Nunes (R-Calif.) filed a lawsuit Tuesday claiming that Twitter, two parody Twitter accounts and a Republican political consultant violated the First Amendment and defamed him. In addition to $250 million in damages, Nunes is demanding that the social media platform disclose the identities behind the anonymous accounts that have caused him particular suffering, according to the suit: “Devin Nunes’ Mom” and “Devin Nunes’ Cow.”
The suit, filed in state court, alleged violations of Virginia’s law against insults. It also brought claims against Twitter for conspiracy and negligence. The tech company, Nunes said, “intended to generate and proliferate false and defamatory statements” about him. Its failure to police mean tweets, puns and memes posted by accounts purporting to be his mother and cow caused him “extreme pain and suffering.”
This week Russia’s Putin Signed Into Law Bills Banning ‘Fake News,’ Insults. “The new legislation allows the authorities to block websites or Internet accounts that publish what they deem to be ‘fake news’ and penalizing those who post material found to be insulting to state officials, state symbols, or Russian society.”
Rep. Devin Nunes, and no doubt “fake news” Donald Trump, saw this and thought to themself, “Self, I gotta get me some of that!”
[Nunes’ lawsuit] has been labeled by experts who spoke to The Washington Post as, in all likelihood, doomed to fail. But others believe there is more to the lawsuit than any desire by Nunes to create a spectacle.
Could the defendants be held liable for libel?
According to First Amendment attorney Floyd Abrams: The speech involved is protected for several reasons.
“Rep. Nunes seems to think the First Amendment exists to protect him from his critics when it’s actually meant to protect his critics from him,” said Abrams, calling the suit “bizarre” and “likely unconstitutional.”
As an initial matter, the First Amendment applies only to government conduct, and “Twitter is not the government,” Abrams said.
Libel is a technical term, legally. It’s a written defamatory statement. The landmark Supreme Court case, New York Times v. Sullivan, made clear that when the plaintiff is a public official (which Nunes is, as a U.S. congressman), to succeed in a libel case, he or she has to prove that the alleged defamatory statement was false and the publisher either knew it was untrue or had serious doubts about its veracity.
Years after that pivotal case, in a lawsuit very similar to Nunes’s, Jerry Falwell sued Hustler magazine for a satirical advertisement that portrayed him in an outhouse having sex with his mother. The court rejected Falwell’s claim that Hustler violated the First Amendment in Hustler Magazine v. Falwell, ruling that although the ad was provocative and insulting, a public figure was not protected from “patently offensive speech.”
According to Abrams, courts also have a history of ruling that speech that is “most obviously hyperbole” or “fighting words” is protected.
Abrams said that the statements Nunes alleges are defamatory are “precisely what the First Amendment protects,” including insults, charges of misconduct and attacks on a sitting member of Congress. “The public is allowed to and is protected when it criticizes — even in the harshest terms — people serving in public office,” he added.
Is Twitter responsible for mean tweets posted on the platform?
In 1996, Congress passed the Communications Decency Act, providing broad protection for materials posted on the Internet, including social media platforms like Twitter and Facebook. Under Section 230 of the Act, these tech giants are viewed as distributors, not publishers, and are shielded from liability.
“Unless the platform is actually a co-creator of the content, it’s simply distributing,” Stuart Karle, former general counsel for the Wall Street Journal and the former chief operating officer of Reuters News, told The Post.
Generally, a site would not be responsible for a user who posts objectionable content; inviting and encouraging users to post is not usually viewed as contributing content. Courts look to whether the host has acted as a neutral middleman, or if it created or disseminated the information. If it turns out to be the latter, the court could hold the platform liable.
Will Twitter have to identify the anonymous accounts?
By opting to disclose the users’ identities, Twitter would highlight its role as a distributor, not a publisher, said Karle, now an adjunct professor at Columbia Journalism School.
But, he said, Twitter could also argue it should not be compelled to disclose the identities until the court analyzes each statement alleged to be defamatory and determines whether it is factual — or, in other words, is a statement that can be proved true or false. They cannot be opinions, hyperbole or a nasty insults, and that could prove fatal for Nunes.
If the offending tweets are deemed nonfactual, Twitter may not be compelled to disclose identities of the two anonymous users. And many of the tweets and memes listed in the complaint are unlikely to be regarded as statements of fact, according to Karle.
And, just as no one actually thought Falwell was in the outhouse with his mother, it would be difficult to view the mean tweets as anything more than hyperbole or rude speech.
According to the complaint, Devin Nunes’ Mom called Nunes a “presidential fluffer and swamp rat,” a statement that is an opinion and, perhaps, an insult, but it’s not factual.
Devin Nunes’ Cow account allegedly said that “Devin’s boots are full of manure. He’s udder-ly worthless and its pasture time to move him to prison,” remarks that also would be construed as insults.
But an insult is not an offense in the United States. To be actionable, it must clearly create a threat of violence, and “we know there was no violent result,” Karle said. “There weren’t riots at Nunes’s events.”
What’s the end game?
Even if Nunes loses the lawsuit and appeal, Karle theorized, the congressman is creating an opening for the Supreme Court to reconsider defamation of public officials and overturn the statute passed by Congress.
As a lawmaker, Nunes is uniquely positioned to change the law by introducing legislation. (Aha! See Putin, above).
The Post’s Dana Milbank has fun mocking Devin Nunes today in the satirical Devin Nunes is having a cow:
It is rare that a leader takes the bull by the horns and corrals support for a cause in which all Americans have a steak.
I’m not referring to Democratic presidential candidate Andrew Yang’s cutting-edge decision to oppose circumcision, though voters may reward his foresight in defense of foreskin.
No, today I celebrate Rep. Devin Nunes of California, top Republican on the Intelligence Committee and close Trump ally, who has just shown the world that he has the chops to sue a cow.
Not just any cow: Nunes’s defamation lawsuit names his own cow — “Devin Nunes’ cow” is its name on Twitter — and a couple of other Twitter users, as well as Twitter itself, seeking $250 million in compensation because mean things were said about him on Twitter.
Nunes tells Sean Hannity this is “the first of many” lawsuits to come, and Trump signaled support by tweeting about it Monday night (See Putin, above). We must hope that Nunes’s bovine broadside won’t end until he sues cows into extinction. (Wait, isn’t that the job of Rep. Alexandria Ocasio-Cortez and the “Green New Deal”? I’m confused).
My friend Jonathan Chait at New York Magazine calls this “bonkers,” and The Post’s Aaron Blake sees “ridiculousness” in the lawsuit, particularly given Nunes’s co-sponsorship of a bill called the Discouraging Frivolous Lawsuits Act. (Wow, a two-fer in the category of “you can’t make this stuff up”!)
That’s a bunch of bull! Nunes’s naming of a cow as a “defamer” in his lawsuit substantially beefs up the GOP policy stable in otherwise lean times.
People are only beginning to understand the threat posed by cattle, a docile-looking but murderous beast that tramples, gores or otherwise kills, in cold blood, 20 people a year, the Centers for Disease Control and Prevention found — way more than are killed in shark attacks. Cattle burps and flatulence are the largest component of livestock’s 14.5 percent share of global greenhouse-gas emissions, according to the United Nations — as much as the entire transport sector. And then there are all the dangerous illnesses cows spread, such as lactose intolerance.
These animals — yes, I am not afraid to call them animals — invade our country from Asia (“wagyu,” they are called) and from Mexico in menacing herds. This is why we need to build a wall, or at least a 1,500-mile emergency cattle guard.
Some suppose that Devin Nunes’ cow is not really a cow, in the same way they suppose another account the congressman sued, “Devin Nunes’ Mom,” is not his real mom. No? Anybody who has read Doreen Cronin’s illustrated work “Click, Clack, Moo: Cows That Type” knows that cows used a typewriter to organize a socialist collective, forcing Farmer Brown to give them electric blankets.
Ruminate on that for a moment.
The Nunes lawsuit states: “Like Devin Nunes’ Mom, Devin Nunes’ Cow engaged a vicious defamation campaign against Nunes that lasted over a year. Devin Nunes’ Cow has made, published and republished hundreds of false and defamatory statements of and concerning Nunes, including the following: Nunes is a ‘treasonous cowpoke’ . . . ‘Devin’s boots are full of manure. He’s udder-ly worthless and its pasture time to move him to prison.’ ” (The cow, revealing its true species, spelled “move” as “mooove.”)
Nunes is also sore that the Devin Nunes’ Mom account compared him to “Scabbers,” which, the lawsuit says, “refers to Ron Weasley’s pet rat in the Harry Potter books.” The account also “falsely stated that Nunes was ‘voted “Most Likely to Commit Treason” in high school.’ ” (Truth is an absolute defense to a defamation claim).
Cows were an obstacle to Nunes before this week’s tipping point. Esquire’s Ryan Lizza reported last year that the Nunes family dairy farm quietly moved from California to Iowa.
Predictably, the cows went mad in response to the Nunes lawsuit (these black-and-white supremacists dominate the dark Web). Devin Nunes’ cow, which had only 1,204 followers when the lawsuit was filed, had bred a herd of 119,000 followers by Tuesday afternoon. Spoof accounts proliferated: Devin Nunes Mom’s Cow. Devin Nunes’s Cow Psychiatrist. Devin Nunes’s Mullet. Devin Nunes is a Whiny Baby.
* * *
But Nunes, a patriot, will stop the vicious cow in its tracks. So gird your loins, congressman. I’ve got your flank. And, before long, a grateful nation will say: Well done.
You really have to wonder about the people in his district who keep electing this idiot to represent them in Congress — or did they? Maybe it was Nunes’s cows who were illegally voting for him. Inquiring minds want to know.
What’s next? Is Devin Nunes going to sue editorial cartoonists who do political satire?