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.”
Since filing, Nunes has been ridiculed, and the case has been labeled by experts who spoke to The Washington Post as, in all likelihood, doomed to fail. But others believe there’s more to the lawsuit than Nunes’s desire to create a spectacle.
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) 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, to succeed in a libel case.
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, 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 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 siting 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.
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 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.
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 qualified, Twitter could also argue it should not be compelled to until the court analyzes each statement alleged to be defamatory and determines whether it’s factual — or, in other words, is a statement that can be proven true or false. They cannot be opinions, hyperboles or a nasty insults, and that could prove fatal for Nunes.
If the offending tweets are deemed non-factual, 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 a statement of fact, according the 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.
For example: Karle said that statements like “Alpha Omega wines taste like treason” were “neither comprehensible nor factual.” Memes, like comments, also tend not to be factual.
According to the complaint, Devin Nunes’ Mom called Nunes a “presidential fluffer and swamp rat,” a statement that is an opinion and, perhaps, and insult, but it’s not factual.
The cow’s 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,'” who would be construed as an insult, too.
But an insult is not an offense in the U.S. To be actionable, it must clearly create a threat of violence, and “we know there was no violent result,” said Karle. “There weren’t riots at Nunes’ events.”
