A month ago, Supreme Court Justice Clarence Thomas issued a call to his colleagues to find a way to rethink the landmark Sullivan ruling on libel, slander, and defamation. Devin Nunes may have stepped up to give Thomas the opportunity to make that case. The ranking member of the House Intelligence Committee filed a $250 million lawsuit against Twitter, two satirical accounts, and Republican consultant Liz Mair alleging defamation and for acting as “a vessel for opposition research.”
Needless to say, this may be a Sisyphean task:
On Monday, Nunes said he is suing the cow account, other individual users and Twitter for defamation and negligence, alleging that the social media platform “knowingly acted as a vessel for opposition research” and censors conservative voices. The lawsuit — the latest one accusing a social media site of anti-conservative bias — drew criticism Monday as many, including legal experts, questioned its motivations and wondered if it could be a “publicity stunt.” …
The complaint alleges that Twitter “intended to generate and proliferate false and defamatory statements” about Nunes to influence the midterm elections; tried to “intimidate” the congressman, who is currently a ranking member on the House Intelligence Committee; and sought to “interfere with his important investigation of corruption by the Clinton campaign and alleged Russian involvement in the 2016 Presidential Election,” according to a copy of the suit obtained by Fox News. Nunes is seeking $250 million in compensatory damages and $350,000 in punitive damages.
Sullivan might only pertain to Liz Mair’s portion of the lawsuit. Mair (full disclosure: a friend of mine) is accused in the suit of “conspir[ing] with (and presumably was paid by) one or more as-yet unknown “clients” to attack and smear Nunes.” Nunes’ suit lists a lot of links to YouTube videos and tweets, with special emphasis on Mair’s repetition of a Fresno Bee news report about alleged misconduct by Nunes, as well as an ethics complaint filed by Mair and another group relating to other allegations. The suit cites public statements by Mair about her hostility and disdain for Nunes, and cites tweets such as this one, which is screen-capped in the complaint:
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
As a reminder, Sullivan raises the standard on defamation for public persons (and members of Congress clearly belong to that class) to “actual malice,” a term which doesn’t mean quite what the normal definition of the words would suggest. It requires a showing that the defendant knew that claims were false or had an intentional reckless disregard for their truthfulness with a “high degree of awareness” for falsehood. That is very difficult to prove, although not impossible. Carol Burnett famously won such a lawsuit against the National Enquirer forty years ago or so, for instance, over false and defamatory reporting.
Did Mair cross the line? Perhaps, perhaps not, but her reliance on outside reporting will make it more difficult to prove she acted with “actual malice” in the Sullivan sense. If the case goes that far, Thomas could use this case to argue for eliminating the Sullivan standard as he did in his concurrence last month. It might be difficult to convince his colleagues based on this case, and it might not even reach Sullivan at all, as attorney Jim Bickerton told the Washington Post:
“The case is not really well thought through,” Bickerton, who has practiced libel law for nearly 40 years, said of Nunes’s suit. He noted that Nunes, a public official and public figure, will have to overcome the “actual malice” standard set by New York Times Co. v. Sullivan in 1964. Actual malice is defined as “a statement made with a reckless disregard for truth,” and requires the person making the statement to have a “high degree of awareness” that it is false.
A number of the examples cited in Nunes’s lawsuit appear to be “things that are most obviously hyperbole,” Bickerton said, which along with opinion is a form of protected speech.
Nunes’ claims against the satirical accounts and Twitter have even more problems. Satire has long been a protected form of political speech, especially when the satire is obvious. The Supreme Court ruled unanimously in Hustler Magazine v. Falwell that when no one can reasonably believe that satirical claims are true, damages cannot be awarded. No one can reasonably think that tweets from accounts called “Devin Nunes’ cow” and “Devin Nunes’ Mom” are in fact coming from a cow and Nunes’ mother. That claim won’t last long, at least not in a court that pays the least bit of attention to precedent.
What about Twitter? They have statutory protection that covers most of their alleged liability:
The other obstacle Nunes faces is section 230 of the Communications Decency Act of 1996, Kevin Goering, a media law expert, told The Post. Under the act, Internet service providers, such as social media sites, and their users have protections because they are not “treated as the publisher or speaker of any information provided by another information content provider.”
Nunes also alleges misconduct by Twitter via “shadow-banning,” a practice Twitter denies but which has been substantiated a number of times. That might make for an interesting fraud case, although since Twitter is free and a private platform, perhaps that might just be limited to a truth-in-advertising regulatory issue. Twitter’s a sewer and its management are hardly honest brokers, but a defamation action isn’t going to work against them unless Twitter’s corporate agents committed the defamation themselves — and that would have to survive a Sullivan review, too.
This looks more like a publicity stunt than a serious claim. Nunes inadvertently got Sean Hannity to endorse the Sullivan standard last night, although Hannity did give Nunes a sympathetic ear in this interview. Nunes had better treasure that, because he’s not going to get too many of those in court.
Update: Corrected the case name in Hustler Magazine v Falwell and provided a link, courtesy of Power Line’s Scott Johnson. He’s a bit more sympathetic than I am to Nunes, but hits this home run in his conclusion with one sentence:
Moreover, I am quite certain that this allegation in paragraph 41 is flatly mistaken: “As a citizen of the United States of America and as a United States Congressman sworn to uphold the Constitution and laws of this great country, Nunes has a fundamental constitutional interest and entitlement to the uninterrupted enjoyment of his reputation.”
That made me laugh out loud because of its obvious truth.