Ridiculous: Judge Says Devin Nunes' SLAPP Suit Against An Internet Cow And Others Can Continue

Free Speech

from the well-that's-disappointing dept

In some surprising, and ridiculous, news the local court judge, Judge John Marshall (no, not that Judge John Marshall), has decided not to dismiss the lawsuit that Nunes filed against Twitter, two satirical Twitter accounts, and political strategist Liz Mair. As you’ll recall, Mair and Twitter had both argued that the case had no reason to be in a local Virginia court, and that, if anything, the proper venue was in California. The judge had demanded that Twitter reveal to him the details of who was behind the Twitter accounts (something that was already questionable under the 1st Amendment, which protects anonymity). Twitter refused, though did say that neither account holder was based in Virginia.

Of course, now it looks like none of that even mattered anyway, as the judge has said that the venue is fine because Mair once lived in Virginia (she doesn’t any more) even though it was a different county from where the lawsuit was filed. The reasoning from the judge is… weird.

The court rejects this argument and finds in this case that the posts to social media were made in Virginia and therefore publication occurred in Virginia and the cause of action for defamation arose in Virginia.

The judge also rejects Twitter’s argument that Nunes signed Twitter’s terms of service which require any disputes to be handled in California by saying (perhaps slightly more reasonably) that since the lawsuit isn’t about things that Nunes did on Twitter, but about third parties, what Nunes agreed to has nothing to do with the venue question. The logic there makes some sense, actually, even though there are many other reasons why the court should say that California is the proper venue (including both Nunes and Twitter and the servers all being based in California).

The negligence claim of the Plaintiff against Twitter here arises from the Defendants use of twitter not the Plaintiff’s use of twitter. The use of twitter by the Defendants to post allegedly defamatory statements cannot subject the Plaintiff to the terms of use agreements and the forum selection clause as it would not subject a plaintiff who did not have a twitter account to the terms of use agreement. The court finds the terms of use agreement does not apply to the Plaintiff here.

And, no, I have no idea why the judge chooses not to capitalize Twitter in that paragraph (he does elsewhere in the document). But the logic there is pretty sound if you’re looking at this strictly about whether or not the terms of service are binding on Nunes for venue choice. However, the court notes that since Twitter has business activity in Virginia, the case is fine to remain there. It also notes that much can be done by video in the case, so it shouldn’t “inconvenience” anyone too much if the case is in Virginia (ignoring that the whole damn lawsuit is an inconvenience…). Either way, in the end, the court has said Virginia is just fine and the case can move forward.

The court refuses to do so as litigation over the defamation claim will necessarily involve Twitter as the claim relates to the use of Twitter’s social media platform and the fact that the negligence claim against Twitter is totally dependent upon the success or failure of the defamation claim. The court has ruled that the Defendants’ cases are properly raised in Virginia. The Plaintiff came to from California to Virginia to pursue claims that arose in Virginia against Defendants in Virginia. The causes of action in this case are interdependent and for the other reasons in this opinion the court will not dismiss the action against Twitter based on forum non conveniens.

That’s disappointing (and a bit surprising), but hardly the end of things as the case can still be tossed on other grounds. The defendants can (and likely will) ask for the case to be dismissed for failure to state a claim (i.e. even if everything in the complaint is accurate, it’s still not defamation or any other violation of the law).

Meanwhile, not surprisingly, Nunes, who has historically positioned himself as a “small government” type whose own website focuses on all the ways he’s cut “wasteful” government spending, is now crowing about using “every lever that we have in this government” to tell Twitter how to run its business.

His message is actually… contradictory:

“As conservatives and Republicans, we have to use every lever that we have in this government and we really have to have the courts step in and right these wrongs,” Nunes said. “It’s not OK for tech oligarchs to allow for their platforms to be used to slander conservatives ? silence conservatives while at the same time, treating the Democrats differently.”

Nunes said these are “monopolies that have full power over spaces of the internet” and “this can’t be allowed to happen.”

Of course, we don’t need to go over (yet again) how there is no evidence to support that Twitter is actually treating Republicans differently than Democrats, but he seems to be saying that Twitter must do the reverse. It can’t be allowed to silence conservatives… but it has to silence… people criticizing Devin Nunes? That’s about the only interpretation of his statements that make sense. No censorship… except for my critics. Censor them. Also, Rep. Nunes, “slander” is spoken. Twitter is written. The word you want is “libel.” And, criticizing you is not libel anyway. You’re in Congress, man. Get a grip.

Filed Under: anti-slapp, defamation, devin nunes, devin nunes cow, free speech, jurisdiction, liz mair, slapp, virginia
Companies: twitter