On Monday, Rep. Devin Nunes (R-Calif.) filed a mammoth lawsuit that might change how the game of politics is played. Nunes claimed that Republican political strategist Liz Mair carried out a defamation campaign against him using Twitter, and that other Twitter users masquerading as his “cow” and his mother also defamed him, suggesting a conspiracy.
The lawsuit stands out due to the fact Nunes is suing Twitter and due to the eye-popping number in damages: $250 million. However, this lawsuit could mean a great deal for how the game of politics is played, and how Twitter censors voices on the internet.
Nunes’s lawsuit demands $250 million in compensatory damages and $350,000 in punitive damages with interest in the meantime, but it also seeks an injunction to force Twitter to reveal the names and contact information of imposter accounts and to suspend the accounts of users defaming him. The congressman blames Twitter for allowing them to have a platform, and demands that the social media company remove defamatory messages.
Defamation law is tricky, especially when the statements in question involve public figures. By faulting Twitter for not removing the defamatory messages already, Nunes has essentially demanded that Twitter act like the government. While the horrific attacks leveled against him arguably fit the legal definition for defamation, Twitter may use this precedent to censor voices with which it disagrees. This case could, ironically, open a Pandora’s box of censorship.
Nunes claims the tweets did concrete damage to his reputation, and the lawsuit claims that the messages on Twitter cost this congressman votes in the 2018 election, although they failed to achieve the purported goal of kicking him out of office.
The lawsuit names a few defendants besides Twitter. Republican strategist Liz Mair and her firm, Mair Strategies, feature prominently in the suit. Mair, a former staffer with the RNC, Carly Fiorina, Gov. Rick Perry (R-Texas), Sen. Rand Paul (R-Ky.), Gov. Scott Walker (R-Wisc.), and Sen. Roy Blunt (R-Mo.), attacked Nunes while he led the House Permanent Select Committee on Intelligence in 2018 (he now serves as the Ranking Member on that committee).
“Mair 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,” the lawsuit claims.
Indeed, Mair vilified Nunes in person and online, trolling him by offering him slippers “to keep him comfortable while evading questions” after she had filed complaints against him. Her attacks seemed to focus on a seedy party in 2015 involving a winery which the congressman had invested in.
As The Fresno Bee reported, Alene Anase filed a lawsuit against her former employer, Alpha Omega Winery, alleging that the employer forced her to serve wine to a group of men on a cruise orgy that constituted sexual harassment against her. The men, who according to winebusiness.com were not investors but had won a cruise in a charity fundraiser, allegedly made a racket, sleeping with prostitutes — some allegedly underage — and even loudly discussed their sex acts in Anase’s hearing after the party.
Since Alpha Omega Winery settled, it is unclear as to just how true Anase’s story was. The story certainly casts a pall on the men involved in this alleged orgy and the company’s decision to abet the harassment of female employees, but any connection to Nunes is rather tenuous. Yes, Nunes invested in the winery a decade before the orgy. But the winery claims that investors do not manage the company, and whatever sort of disgusting orgy the other investors took part in did not involve Nunes.
Mair repeatedly slammed the congressman for this orgy, however, suggesting his continued investment in the winery made him complicit in the orgy and sexual harassment.
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. https://t.co/acMlAXjPP8
— Liz Mair (@LizMair) June 23, 2018
Yet Mair and Mair Strategies are not the only defendants in the lawsuit. The other defendants have hidden their identity behind Twitter personas, some by impersonating real people.
The person behind the Twitter account “Devin Nunes’ Mom” “hijacked Nunes’ name, falsely impersonated Nunes’ mother, and created and maintained an account on Twitter (@DevinNunesMom) for the sole purpose of attacking, defaming, disparaging and demeaning Nunes,” the lawsuit states. “Between February 2018 and March 2019, Twitter allowed @DevinNunesMom to post hundreds of egregiously false, defamatory, insulting, abusive, hateful, scandalous and vile statements about Nunes that without question violated Twitter’s Terms of Service and Rules, including a seemingly endless series of tweets that falsely accused Nunes of obstruction of justice, perjury, misuse of classified information, and other federal crimes.”
Indeed, pages 15-21 of the lawsuit list the many vile attacks coming from “Devin Nunes’ Mom,” some of which suggest Nunes is worse than Adolf Hitler, is a “treasonous Putin shill” and more.
While “Devin Nunes’ Mom” was removed from Twitter — after the congressman’s mother complained — the account “Devin Nunes’s cow” (@DevinCow) is still on Twitter and has 1,204 followers. “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,” the lawsuit explains.
“The substance and timing of the tweets, retweets, replies and likes by Mair, Devin Nunes’ Mom and Devin Nunes’ cow demonstrates that all three bad actors were and are engaged in a joint effort, together and with others, to defame Nunes and interfere with his duties, employment and investigations of corruption as a United States Congressman,” the lawsuit claims.
The suit also attacks Twitter for authorizing “the creation and operation of many other incendiary accounts whose sole purpose was (and is) to publish and republish (tweet and retweet) false and defamatory statements about Nunes. Among these additional Twitter accounts are ‘Fire Devin Nunes’ (@fireDevinNunes) and ‘Devin Nunes’ Grapes’ (@DevinGrapes).”
According to the lawsuit, Twitter not only allowed these accounts to exist and repeatedly defame the congressman in violation of Twitter’s own rules, but the company also “shadow-banned” Nunes. The company did so “in order to restrict his free speech and to amplify the abusive and hateful content published and republished by Mair, Devin Nunes’ Mom, Devin Nunes’ cow, Fire Devin Nunes, Devin Nunes Grapes, and others. The shadow-banning was intentional.”
While the campaign against Nunes is and was horrific, this lawsuit faults Twitter for negligence and defamation and asks the court to force Twitter to remove the offending accounts from its social media platform.
The lawsuit also claims that Twitter is a public forum with a vital political role. “A candidate without Twitter is a losing candidate. The ability to use Twitter is a vital part of modern citizenship,” Nunes’ lawyers wrote. “A presence on Twitter is essential for an individual to run for office or engage in any level of political organizing in modern America. That is because Twitter is not merely a website: it is the modern town square.”
Because Twitter is the modern town square, the lawsuit seeks an injunction forcing the company to “to reveal the names and contact information of the persons behind the accounts ‘Devin Nunes’ Mom’, ‘Devin Nunes’ cow’, ‘Fire Devin Nunes’ and ‘Devin Nunes Grapes.'” The injunction would also force Twitter to suspend Mair, “Devin Nunes’ Mom,” and “Devin Nunes’ Cow,” and erase all their defamatory tweets from the platform entirely.
In this case, these seem like very reasonable requests. The lawsuit and the injunction would change how Twitter operates, however.
According to the complaint, Twitter did not just fail to apply its rules against Mair and the other bad actors — it breached a “duty of reasonable care” by allowing “its platform to be used by others as a means to defame Nunes.”
In other words, Twitter has the duty to silence defamation on its platform. Defamation involves falsehoods meant to damage a person’s reputation. But as Mair herself tweeted, her attacks on Nunes involved opposition research, a political campaign tactic. If political candidates can claim opposition research is defamation, they can tell Twitter to silence their opponents.
Partially for this reason, defamation plaintiffs must prove that the attacks against them are “unprivileged.” It is extremely difficult for a political candidate to prove that attacks against him should not be protected in the interests of free speech and the public good. Nunes has a strong claim, but if the court faults Twitter for not removing defaming tweets in this case, what does that mean for future political campaigns?
If Donald Trump slams Sen. Elizabeth Warren (D-Mass.) a “socialist” on Twitter — even though Warren has identified herself as a capitalist — is that defamation and must Twitter take down the president’s tweet?
Thankfully, if Nunes prevails in this lawsuit, the court may still dismiss the claim that Twitter has a duty to police political attacks that might be categorized as defamation. Twitter is not the government, and it should not have to decide whether or not a statement is defamatory.
This lawsuit acts as though Section 230 of the Communications Decency Act did not make Twitter immune from prosecution for the messages posted on the platform. Some organizations want Congress to repeal that section, but according to current law, Twitter is not liable for defamation.
Follow Tyler O’Neil, the author of this article, on Twitter at @Tyler2ONeil.