In case you haven’t heard, Devin Nunes (R-Moronville), Republican member of the House of Representatives and loyal Trump water boy, has filed a fantastically stupid law suit against Twitter, a woman named Elizabeth Mair and her limited liability corporation, and two parody Twitter accounts. This is vastly amusing.
Jonathan Chait has published a very funny article explaining the suit to some extent in which he mocks it and Nunes mercilessly, as both deserve. For whatever reason, Chait chooses not to go into the specific legal reasons why this suit is complete nonsense, but those reasons are more entertaining than legal reasons usually are, so it is well to supply the lack.
Nunes is undoubtedly a public figure. That matters. He is not only a member of the House of Representatives, which might make one automatically a public figure — that is, after all, a public office by definition — but it might not. There are four hundred thirty five members in the House of Representatives, and one doubts most people could name five of them. Some significant percentage of the population may not even know who their own House member is.
But Nunes was an unusually prominent member of the House for several months because he served as chair of the House Intelligence Committee, from which position he very actively, and most would say, inappropriately, ran interference for President Trump against the various investigations that unfolded into Trump’s various nefarious doings. Those activities attracted even more press attention than they would ordinarily because he was as comically stupid about what he did then as he is now with his idiotic law suit.
It also matters that two of the defendants are parody Twitter accounts, “Devin Nunes’ Mom” and “Devin Nunes’ Cow” (Nunes’ family owns a dairy farm, originally in California, now in Iowa).
The reason why it matters that Nunes is a public figure and two of the defendants are parody accounts is that his suit brings immediately to mind, for anyone who knows the law in this area, the famous Supreme Court case, Hustler Magazine v. Falwell, 485 U.S. 46 (1988). The Falwell in the case caption (what lawyers call the title of a case) is Jerry Falwell, (in)famous Baptist preacher who founded the Moral Majority, a major Christian conservative organization that had some influence on President Ronald Reagan and famously opposed abortion rights and LGBT rights, or gay rights, as they said then. He founded Liberty University, which his son, Jerry Falwell, Jr. now runs. Junior is a loyal Trump supporter.
Hustler magazine is a pornographic magazine, sort of like Playboy, but without even the pretense of literary merit. Larry Flynt, who publishes Hustler, is very fond of exposing what he considers the hypocrisy of conservatives on issues of sex and sexuality.
In 1983, Hustler published a parody ad suggesting that Falwell had his first sexual encounter while drunk in an outhouse with his own mother (reading the slightly prissy explanation of this ad by Supreme Court Justice William Rehnquist is amusing by itself). Falwell sued, claiming libel, invasion of privacy, and intentional infliction of emotional distress. The trial judge dismissed the invasion of privacy claim. The jury found that the content in question could not have qualified as libel because no reasonable person could believe that the events it described actually happened. However, they awarded damages on the claim for intentional infliction of emotional distress.
The issue before the Supreme Court was whether to apply the standard in the landmark case, New York Times v. Sullivan, 376 U.S. 254 (1964) that a public figure must show “actual malice” to recover for a libel or similar claim.
As the majority opinion by Justice Rehnquist states, “Falwell would have us find that a State’s interest in protecting public figures from emotional distress is sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury, even when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. This we decline to do.” Hustler, 485 at 50.
Rehnquist goes on to discuss the point that the Court has allowed “breathing room” for free speech in public debates by holding that public figures may recover for publication of false claims about them only if they can show that the claims were both false and published with “actual malice.” Next it explains that merely showing that the publisher harbored animus or hatred toward the subject of the parody is insufficient in matters of public importance, using the category of political cartoons to note that, throughout U.S. history, political cartoons have been tools for attacks on prominent persons, including many presidents with very high reputations. Rehnquist admits that the parody in question is excessive even by that measure, but he asserts that there is no “principled standard” that would allow the Court to differentiate parodies that it could leave open to liability from those it could insulate from liability, so it must insulate them all.
In closing, he writes, “We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing, in addition, that the publication contains a false statement of fact which was made with ‘actual malice,’ i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.” Hustler, 485 at 56.
In this case, because the statements in question were literally unbelievable, it was not a statement of fact at all, but a statement of satire, so its truth or falsity cannot be an issue. This plainly dispenses with the case as it applies to the two parody Twitter accounts. No one could believe that Devin Nunes’ Cow could have a Twitter account, or that his mother would make such statements about him on Twitter.
As to the claim against Twitter itself, Nunes whines that they are guilty of deliberately censoring censoring viewpoints it disagrees with and “shadow-banning conservatives” — a favorite “conservative” conspiracy theory that is ridiculous on its face. But publications are free to do that. Even if they have acted in that way, any publication is free to adopt a specific ideological perspective, explicitly or not, and only publish writing that explicitly aligns with that perspective. “Conservative” publications such as the National Review do so routinely and they should be free to continue doing so as part of their right to freedom of expression.
As to Ms. Mair and her corporation, Nunes’ complaint falls to the same response as the Court supplied to Falwell above. Nunes is a public figure. The legal bar for him to succeed in his suit is almost impossibly high.
The only interesting question here is how far the judge will allow this suit to proceed before dismissing it. Twitter, as a corporation, will almost certainly move to dismiss the whole mess. Whether the judge will allow the suit to proceed to the point of requiring Twitter to disclose the identities of the persons who created the parody accounts is an interesting question. They may choose to lie low and wait for the storm to pass without any response at all. If the court does order Twitter to reveal their identities, they may move dismissal then.
Don’t fasten your safety belts. This will likely be a total wreck from Nunes’ perspective, but the rest of us can just watch the in flight movie with amusement.