When Devin Nunes sued a Twitter cow, this First Amendment lawyer wanted to know more
The Twitter cow captured UCLA law professor Eugene Volokh’s attention.
Rep. Devin Nunes’ succession of First Amendment-testing defamation lawsuits against media companies held it.
The California congressman has filed 10 lawsuits since 2019 against media companies and people he regards as critics, claiming defamation or conspiracies to harm him. The cases target coverage of him by The Washington Post, CNN, Hearst, NBC and McClatchy, the parent company of The Fresno Bee.
“Nunes seems to be taking a pretty aggressive litigation strategy where his view is, ‘you say something about me that I believe is false, I may very well sue you,’” Volokh, who regularly blogs about Nunes’ cases, said in an interview with The Fresno Bee.
Last month, Volokh independently intervened in one of the cases when he asked a federal judge to unseal certain documents in a lawsuit filed by Nunes’ family against a journalist and magazine over a story that suggested their farm employed undocumented immigrants. Volokh had been trying to read those documents to understand a decision that the judge made to offer separate legal counsel to the farm’s employees this summer, but they were too heavily redacted to comprehend.
The judge agreed, allowing public access to unredacted case files.
After they were released, news organizations, including The Bee, wrote about their contents. Based on some of that reporting, it appeared that the Nunes family might be relying on undocumented labor because well over half of their employees did not match Social Security Administration’s records, Volokh said.
If true, the journalist, Ryan Lizza, and magazine company, Hearst, have a better chance of winning in court. The lawsuit hinges on the family’s claim that the farm does not employ undocumented labor.
“These kinds of ‘no matches’ happen without anything sinister going on — people miswrite numbers, misspell names — but when 34 out of 46 at one time come back as a ‘no match,’ you start to wonder,” Volokh said.
The Bee spoke with Volokh on Oct. 20 about the arguments in some of Nunes’ lawsuits. This interview has been edited for length and clarity.
Q. Could you tell me about the first Nunes lawsuit that piqued your interest?
A. There was this lawsuit by Nunes against Twitter and tweeters based on various insulting comments. Some of the theories were a little outlandish.
There was one claiming that “insulting words” under Virginia law are punishable and I thought, “that can’t be right.” It isn’t: Virginia law covers “insulting words” as unconstitutional, but it is limited to so-called “fighting words,” which are face-to-face insults likely to start a fight.
The complaint demanded the court order Twitter to suspend certain accounts that contain false statements about Nunes, and deactivate all hyperlinks to all tweets on them. It’s one thing to say, remove the libelous stuff; it’s another to say, suspend the whole account, much of which might not be libelous or even about Nunes.
He was going after what were clearly parody accounts, Devin Nunes’ mom and Devin Nunes’ cow. I think in context, those would not be perceived as factual assertions, and therefore would not be libelous.
For example, Devin Nunes’ cow starts with a picture of a cow. Well, that’s not a factual assertion that this is written by a cow, right? It’s a signal that everything else is not going to be a factual assertion, but jokes at Nunes’ expense.
Then Nunes was going after Twitter, which is something he couldn’t do because of a federal statute that basically makes social media platforms not liable for material posted on (them).
I thought that was a very weak lawsuit. But there have been more recent lawsuits of his which led to court decisions that are at least partial victories for him.
Q. Speaking of some of those cases, was the decision that a federal appeals court made to reopen a case where Nunes was suing a journalist because of a tweet surprising to you?
A. I’ve talked to some other libel lawyers about this and there’s been some disagreement, which suggests that this is not a well-settled question.
In that case, Nunes is suing Ryan Lizza and Esquire magazine’s parent company over a story Lizza wrote that suggests, first, that Nunes’ family employed undocumented immigrants on their farm and, second, that Nunes was, in a sense, complicit in that.
Because Nunes is a government official, Nunes can only win if he shows that those statements are “false factual assertions” and that Lizza knew that the statements were false or likely false — that’s knowledge or reckless disregard, sometimes called the “actual malice” test. It’s hard to prove that with the initial publication because it seems likely that, even if there were mistakes and falsehoods, they were probably innocent falsehoods.
But then Nunes said, “this is all false,” in a lawsuit denying what the article said. At that point, Lizza knew at least that Nunes was denying it and maybe that these assertions were likely incorrect. That’s a possible thing Nunes might be able to prove.
Nunes stresses, “Lizza re-tweeted the article once he knew that I had said it was all false, and presumably I gave some evidence that it was.”
The question is, does then tweeting that article constitute republication?
The answer is maybe yes, maybe no.
There are some relatively recent cases that say, “that’s just sending around a link, that’s not really republishing.” There are some older cases from pre-Twitter that said, “if you republish a book or a newspaper article in a way that reaches a different and broader audience, that is a republication and therefore that itself might be libel.”
Given that tweeting links is the way you get people to read things, it might be that re-tweeting an article will reach a broader audience and therefore should count as republication.
Q. Nunes has filed 10 defamation lawsuits since 2019. As a whole, can you speak to this strategy?
A. One question that we won’t know the answer to for several years is, was this a successful strategy? Looking back, does it lead to better coverage of Nunes, at least from his perspective? Or does it backfire and end up revealing more things about him that might make him look worse?
This story was originally published October 28, 2021 at 5:00 AM with the headline "When Devin Nunes sued a Twitter cow, this First Amendment lawyer wanted to know more."
