Rep. Devin Nunes, R-Calif., does not much like being the subject of criticism or ridicule. He recently filed a $250 million lawsuit against Twitter and the users behind three Twitter accounts, alleging, among other things, that they had defamed him. Specifically, Nunes has sued a Republican consultant named Liz Mair and two anonymous Twitter users who have created spoof accounts and use the Twitter handles @DevinNunesMom and @DevinCow. (Nunes comes from a family of dairy farmers, a fact he has proudly repeated on the campaign trail.) This is one of three recent lawsuits he has filed based on his belief that people, or in one instance a newspaper, disparaged his character.
Nunes’ suit is more than a tad petty, which his lawyers may actually realize. But the suit raises larger questions about the liability of social media corporations and the conduct of their users that will reach far beyond Nunes and his Twitter trolls.
Nunes’ suit is more than a tad petty, which his lawyers may actually realize. But the suit raises larger questions about the liability of social media corporations and the conduct of their users.
Protections against defamation long pre-date the founding of our country and have their origins in English common law. When laws guarding against defamation were developed, no judge, attorney or scholar could have predicted the creation of the internet, let alone social media. Now the law must evolve. And Nunes and his thin skin may just help define if, how and when social media corporations like Twitter could have to pay.
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Nunes brought his suit in Virginia, where to succeed on a claim of defamation he must show that a false factual statement (not an opinion) was made about him that caused harm to his reputation. And because Nunes is a public figure, he must prove that the statement was made with “actual malice,” that the person who made the statement knew it was false or had a “reckless disregard” for its potential falsity. Also, a person who clearly engages in satire or parody will not be held liable for defamation, because reasonable people do not believe satires or parodies are true factual statements. That is how shows like “Saturday Night Live” and websites like “The Onion” can exist.
Virginia’s law is similar to the protections against defamation found in every other state in the country. However, and this a big however, there is a good reason why Nunes chose to sue in Virginia as opposed to California, where his congressional district is and where the boilerplate Twitter user agreement he signed says legal disputes involving the company must be heard. Virginia’s law is more favorable to people who might file lawsuits that actually harm a person’s right to free speech.
Specifically, Virginia’s anti-SLAPP law, to the extent one really exists there, is not nearly as robust as it is in states like California. SLAPP stands for "strategic lawsuits against public participation," but public participation here really means the right to free speech. Anti-SLAPP laws are meant to prevent suits that could curtail free speech or remedy them by forcing plaintiffs to show their likelihood of success early on in the process or by forcing them to potentially pay a defendant's legal fees. This is largely designed to protect the public participation, meaning speech and petition rights, of average citizens and prevent intimidation. Nunes no doubt wants to avoid having to show early proof of why he will win and he certainly doesn’t want to pay the legal fees of his Twitter critics.
Nunes is facing an uphill battle. Defamation cases are hard to win, for good reason. When one person wins a defamation suit, it means another person is punished for something they said. Ring, ring, it’s the First Amendment calling. The First Amendment guards against the government limiting speech. When a judge and/or a jury fines someone for what they say, that is the government burdening speech.
But Nunes’ suit brings up questions the law has yet to tackle. We don’t know exactly what to do when someone, particularly an anonymous someone, types false statements about you that harm your reputation in that town square called Twitter.
If you defame someone in a town square, chances are the whole town might find out about it — but perhaps not the whole world. The same is not true for Twitter users. If you defame someone on Twitter, a few key retweets could turn that defamatory statement into a worldwide sensation. Twitter allows for information, both true and untrue, to reach far beyond the confines of any town, city or even state.
And so to the extent a person does make a truly defamatory statement over Twitter (which is far from clear in Nunes’ cases), perhaps we should consider awarding more damages to account for the harm to their reputation. Future employers, spouses and friends can often find old tweets, even ones that are eventually deleted.
But Twitter, while they do have rules for what users are allowed to post, should not have a quasi-judicial role forced upon it. It is not for Twitter to go through the detailed analysis of determining when and if defamatory statements are made. It is for Twitter to do its best to adhere to its own standards in a neutral fashion. We should not scare online platforms out of existence for fear of lawsuits.
Nunes’ suit has made headlines mostly because it involves a sitting congressman who is both fairly litigious and thin-skinned. But his suit asks the legal system to answer questions it does need to tackle — namely how to apply centuries-old law to decades-old technology.