What might be most notable about Nunes’s suit is that this is the first battle he chose. Nunes said on Sean Hannity’s Fox News show Monday night that this is “the first of many” lawsuits to come. Does he really think his most obvious and airtight case involved ... @DevinCow and @DevinNunesMom?
Here’s a sampling of the tweets he alleges are defamatory, using language directly from the lawsuit Fox obtained:
- "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.' ”
- “In her endless barrage of tweets, Devin Nunes’ Mom maliciously attacked every aspect of Nunes’ character, honesty, integrity, ethics and fitness to perform his duties as a United States Congressman.”
- @DevinNunesMom “falsely stated that Nunes was unfit to run the House Permanent Select Committee on Intelligence.”
- @DevinNunesMom “falsely stated that Nunes was ‘voted ‘Most Likely to Commit Treason’ in high school.’ ”
- @DevinNunesMom “falsely claimed that Nunes would ‘probably see an indictment before 2020.’ ”
It’s almost as if the accounts were created to sound ridiculous in a lawsuit and make it seem frivolous.
Unless, of course, this isn’t about winning lawsuits. Unless, this is really just about exacting financial pain on outspoken opponents and making Twitter and others who would dare to run afoul of Nunes think twice. If that’s the goal, then suing @DevinCow seems rather savvy. What better way to draw attention to something than to sue what is obviously a parody account claiming to be a creature without the opposable thumbs necessary to fire off a tweet? If such a ridiculous account can be subject to a $250 million lawsuit, then what about someone using their own voice and identity to attack Nunes or other Republicans?
The legal merits of the case appear highly questionable at best. The standard for defamation of a public figure such as Nunes is much higher than for an average person. One expert The Washington Post talked to cited the landmark Supreme Court case in which Jerry Falwell sued Hustler magazine for a satirical advertisement in which his likeness was engaged in sexual activity with his mother in an outhouse. The court ruled that public figures aren’t protected from “patently offensive speech” if the statements couldn’t be understood as actual facts.
Most of the tweets cited by the lawsuit are ugly and speculative, alleging Nunes has engaged in treasonous and other unseemly behavior. They even carry parallels to the Falwell case, alluding to sexual contact between Nunes, President Trump and Russian President Vladimir Putin. Nunes was the high-profile chairman of the House Intelligence Committee last Congress, and his pro-Trump actions in the Russia investigation repeatedly came under scrutiny.
But the idea that any of them were understood to be facts rather than hyperbole and/or political speculation is a little difficult to swallow. These kinds of over-the-top and unproven allegations are a feature of our political debate, and they are trafficked in by people from all parts of the political spectrum. If these are subject to damages, the impact on our political discourse would be massive. The number of Twitter users alone who could be successfully sued would be almost impossible to quantify.
More likely is that this is the latest installment in a long-running Republican campaign to “work the refs” when it comes to political discourse. Republicans have alleged media bias for decades, tempting the press to adjust its coverage to avoid criticism. Trump, who promoted Nunes’s effort in a tweet Monday night, has talked publicly about opening up libel laws to make it easier to sue people. Conservatives, including Donald Trump Jr., have increasingly argued that social media platforms like Twitter and Facebook censor them. A $250 million lawsuit would seem a good way to make Twitter think long and hard about how it’s applying its standards.
So feel free to chuckle about the spectacle of Devin Nunes suing “Devin Nunes’ cow” — especially given Nunes’s past opposition to “frivolous lawsuits” — but know that this most likely isn’t about his purported cow or what it said. Nunes is telegraphing an expansive effort to go after people who hurt Republicans with their public discourse. Its potential impact, not so much legally as from personal behavioral standpoint, shouldn’t be so casually dismissed.