Freedom of Speech

Rep. Devin Nunes Seeks Court Order Entirely Suspending @LizNair and Other Accounts

But courts can't order suspension of an entire account even if they find that some posts were libelous.

|The Volokh Conspiracy |

Here's part of the demand from the Complaint in Nunes v. Twitter:

In order to protect Nunes's property interests and his reputation, Nunes requests the Court … to permanently enjoin and order Twitter to suspend @LizMair, @DevinNunesMom and @DevinCow and to deactivate all hyperlinks to all tweets, retweets, replies and likes by @LizMair, @DevinNunesMom and @DevinCow that contain false and defamatory statements about Nunes.

Most states now do allow injunctions requiring the removal of material proved to be libelous. But Nunes also seeks suspension of the entire accounts, which will keep their owners from posting even constitutionally protected speech, such as opinions or true statements. Such an overbroad injunction would be an unconstitutional prior restraint even if it were a response to speech about a private person; it is certainly unconstitutional as a remedy for speech (even libelous speech) about an elected official.

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82 responses to “Rep. Devin Nunes Seeks Court Order Entirely Suspending @LizNair and Other Accounts

  1. [Holds sealed envelope to forehead]

    “The constitution, free market, and freedom.”

    [Tears open envelope, removes paper and reads]

    “Name three things conservatives know nothing about but speak of incessantly.”

    1. Your comment would have been funnier without the gratuitous partisan dig. It’s not like the liberals have any better track record. Or are any less hypocritical.

      1. Do liberals constantly talk about the constitution and the free market?

        1. Yes, about how evil they are and need to be destroyed & replaced with glorious socialistic tyranny.

        2. There is certainly no place for any sort of partisan dig in polite academic discourse. In this regard, it should be observed that under the precedent set by our nation’s leading criminal “parody” case, documented at:

          https://raphaelgolbtrial.wordpress.com/

          there are strong arguments why existing law should be modified to allow the blocking of these outrageous accounts–and, indeed, why the reach of any relevant statutes should be expanded just enough to guarantee the jailing of the perpetrators. Sure, Nunes is an “elected official,” but his dignity is arguably just as valuable as that of an academic department chairman and Vatican representative. New precedents can always be set, just as they have been in the linked case; and the Nunes case seems an excellent opportunity to do just that.

          1. True that, which explains why the creator of the GlennBeckRapedAndMurdered?AYoungGirlIn1990.com website remains in jail to this day.

            1. The least that can be said in that regard is that the good Mr. Beck naively went to the wrong forum–he should have called the police.

              1. Or not raped and murdered that young girl in 1990.

  2. Could the act of creating the accounts themselves be considered speech, and therefore potentially libelous speech?

    If I create an account named “VolokhKicksPuppies” is it your position that there is no legal remedy to have it removed? Because after all, I might very well use that account to make posts unrelated to your alleged puppy kicking?

    1. Why would “VolokhKicksPuppies” be actionable libel?

      1. Factual statement, damaging to reputation. Which box does “X kicks puppies” not tick? (Assuming, like Rossami says, that we’re talking about a publicly viewable username.)

        1. Is a username a factual statement?

          1. I hope not, for either of our sakes.

          2. Why not? Any string of words is capable of being a statement of fact. What is it about usernames (or wifi names?) that makes you think they’re somehow exempt?

            1. Any string of words is capable of taking the form of an assertion of fact. But just because someone chooses such a string of words as their username doesn’t mean that they are making such an assertion. For example, someone with a username “GoneFishing” probably isn’t asserting that they are fishing.

              1. So wait, are you saying you aren’t 12 inches tall? I feel so deceived.

                1. Of course he’s not 12 inches tall, he plays a 12 inch piano. 🙂

                2. The name doesn’t tell us if he is 12 inches tall or if he has some body part that stands 12 inches tall.

        2. Generic insults are not factual statements.

          “Trump blows chunks” doesn’t literally mean that he vomits solid material.

          “Pelosi is an asshole” doesn’t literally mean that she is an anal sphincter.

          “Nunes is full of bullshit” doesn’t literally mean that Devin is composed of bovine fecal matter.

          1. Agreed, but I wouldn’t put “X kicks puppies” in that category.

          2. “”Pelosi is an asshole” doesn’t literally mean that she is an anal sphincter.”

            Of course it doesn’t. If it did, she would actually be useful.

        3. But what if it’s some devil-dog from the pit? You can still kick them, right?

    2. Is creating an account speech? No. Is the selection of a publicly viewable username? Yes.

      But given that the vast majority of usernames are limited to fairly short strings of characters, you’re going to have a hard time coming up with even a hypothetical username that truly passes the threshold for libel. As NToJ points out, “VolokhKicksPuppies” doesn’t.

      1. Is creating an account speech?

        One could argue that, on a messaging site, it was protected under the “freedom of the press” argument for unfettered access to the mechanics of mass production and distribution of speech.

    3. Of course there is a remedy. Just consider the great success Glenn Beck achieved in his legal action against the disgusting owner of the website GlennBeckRapedAndMurdered?AYoungGirlIn1990.com which had treasonously fooled countless hurrying morons. Sad! Then there are the salubrious results of the numerous suits field by the Savage Weiner.

    4. It’s weird that nobody gave you the correct answer, but yes, the answer is, IF the username was held to be defamatory after a full and fair trial, because it was taken as a factual statement of and concerning Professor Volokh,a court could order you not to maintain any public account with that username.

      Which would be different from an order requiring the deletion of the account.

      1. No doubt; but a far more appropriate solution would be to have the perpetrator arrested and jailed, particularly because Volokh himself, after whom the hypothetical blog is named, has boldly argued that libel can be criminalized consistent with the Constitution. In making this argument, he has admirably avoided mentioning certain objectionable material, such as the words quoted in the famous Garrison case:

        “[P]enal sanctions cannot be justified merely by the fact that defamation is evil or damaging to a person in ways that entitle him to maintain a civil suit. Usually we reserve the criminal law for harmful behavior which exceptionally disturbs the community’s sense of security. . . . It seems evident that personal calumny falls in neither of these classes in the U.S.A. [and] that it is therefore inappropriate for penal control.”

        or the statement of the so-called OAS Special Rapporteur on Freedom of Expression and several other individuals that “criminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.”

        (And there’s of course a good deal of more recent material.) Volokh deserves our highest praise for failing to signal any foolish opinions of the sort when making his various arguments that criminal libel passes constitutional muster. And anyone who opens a website using his name ought to be arrested and jailed.

  3. I read that paragraph as more objecting to the users’ handles i.e., that they are confusingly similar to the real Mr. Nunes and/or imply sponsorship /approval by Mr. Nunes. As such, he’s not really asking to “keep their owners from posting,” he’s more asking that they need to change twitter handles.

    1. “Mr. Nunes, are you saying people will think it is your own actual cow saying these things?”

      Nunes: “Of course not.”

      “So you are saying nobody would actually think you had sex with your mother?”

      Fallwell: Of course not. Nobody would believe such a thing.

      The defense rests.

    2. The handles refer to Devin Nunes’s Mom and Devin Nunes’s Cow. Neither of those could reasonably be described as confusingly similar to Devin Nunes.

      1. But one of them sounds confusingly similar to Devin’s mother. That should be good enough for a year in the slammer, unless you’re going to insist on little technicalities, which last I heard isn’t exactly how it works in American courts. Remember, “Neither good faith nor truth is a defense.”

  4. “it is certainly unconstitutional as a remedy for speech (even libelous speech) about an elected official.”

    Is Devin Nunes’s mother a public official?

    1. No. But she isn’t the plaintiff, either.

      1. Easily fixable via an amended complaint…. I gather from that comment that you agree that Devin Nunes’s mother has a valid cause of action. Right?

        1. Devin Nunes cannot amend his complaint to force his mother into the lawsuit with him as a plaintiff. But no, I don’t think Devin Nunes’s mother has a valid cause of action either.

        2. Sure, and success woiuld be easy. Probably on the first day. Just look at the great Supreme Court result when Falwell’s mother sued Hustler. Wandering idiots everywhere were vindicated. I’m sure that the great legal minds of Trump University Law School are at work on this question as we speak.

  5. This is why we need anti-slapp laws.

    1. Virginia has one though it will be found to not apply in this case of a vicious attack on this poor dairy farmer out standing in his field just trying to have a happy, productive, and mutually satisfying relationship with his mother and her cow.

  6. The rules that protect criticism of public officials shouldn’t protect liberal Democrats, who are basically traitors. Liberalism is sedition.

    1. YAAAAY! He’s back and with a new moniker no less.

      I do admire consistency.

  7. If Twitter is conspiring and colluding with Democrat activists to influence our elections, we have serious challenge to our Democracy.

    1. Yup. Perhaps we should appoint a special prosecutor to investigate election-meddling by twitter.

      1. Multi-national companies colluding with political parties to influence elections doesn’t concern you?

        1. THIS IS ALL SO SHOCKING!

          1. So it’s acceptable for a multi-national corporation to influence our election?

            What entities is that no acceptable for?

            1. At the level of generality you’re speaking about, it’s ok for anyone to influence our election. Even foreign countries. If China bans Devin Nunes from Sina Weibo, I don’t think we need to do anything about it. Do you?

              1. If Kamala Harris coordinated with Twitter to silence and oppress a political campaign, is that problematic?

                1. If by “silence and oppress a political campaign” you mean kick them off Twitter, of course not. If you mean something else, let me know.

                  1. If Bernie Sanders colludes with Google to manipulate search results in his favor, which has been empirically demonstrated to influence elections, is that problematic?

                    1. Not for me. If Bernie Sanders creates an LLC that invents a search algorithm that manipulates results in his favor, why do you think that would be “problematic”? If Google endorses Bernie Sanders, do you think that’s problematic? Are corporations not allowed to support candidates?

                      One caveat: If Google was not telling its customers about this, they might have a claim against Google. But it’s not going to be for campaign interference.

                    2. Not for me. If Bernie Sanders creates an LLC that invents a search algorithm that manipulates results in his favor, why do you think that would be “problematic”? If Google endorses Bernie Sanders, do you think that’s problematic? Are corporations not allowed to support candidates?

                      They’re allowed to independently support candidates; there may be campaign finance issues if they’re coordinating with a campaign. Depending on the specifics, it might be an in kind contribution, and of course corporations are not allowed to make campaign contributions.

                    3. If Sam Gompers colluded with Google to manipulate search results in Republicans’ favor, which has been empirically demonstrated to influence elections, is that problematic?

                      [Quit it with the question-begging insinuations, Sam.]

                2. If Sam Gompers coordinated with Twitter to silence and oppress a political campaign, is that problematic?

                  [illustration of your snide question-begging]

    2. The word you’re looking for is “Democratic.” Democrat is a noun, not an adjective. When you misuse a simple word like that, it makes people think you’re stupid and not worth taking seriously.

      1. While you are correct that “Democrat” is a noun, the english language rules of grammar have a long tradition of allowing the use of nouns as adjectives. Complaining about that makes people think you’re pedantic and not worth taking seriously.

        1. Well, I am pedantic.

          1. can confirm

        2. Democrats created the problem becuase they use an odd, outlier method of naming their party.

          Party name and what you call a member is the same nearly every time.

          A member of the Republican Party is a Republican.

          A member of the Conservative Party is a

          A member of the Libertarian Party is a Libertarian

          A member of the Socialist Party is a Socialist

          Even a member of the Communist Party is a Communist.

          So, its a natural mistake that is also fun because it makes them sooooo angry.

          Not sure why a libertarian has to white night them though.

          1. knight not night

          2. of course, you are exacty correct.

            A member of the Reform Party is a Reform.
            A member of the Prohibition Party is a Prohibition.
            Some members of the Peace and Freedom party are Peaces and others are Freedoms.
            A member of the Labor Party is a Labor. I never knew that before, I always thought one was a chore.

            Obviously, a member of the Democratic Party is a Democratic.

    3. Newscorp, on the other hand, must be protected against any investigation by the Radical Democrat Party and it’s collaborators at the Amazon Washington Post. How else can our constitution be saved but through the collusion of the brave and true Trump administration and the fabulous patriots at Fox News.

      FREE JEANINE!!!!!!

      1. If there was intentional coordination to influence an election, you think that’s okay?

        1. Of course! All information that could possibly inhibit the Uncredible Bulk’s ascension was properly, legally, and constitutionally suppressed so that the world would never know about the relationship with that lying whore who would later publish a totally fabricated description of Baby Huey’s tiny and deformed reproductive organ guaranteeing that the smartest woman, and a fantastic linguist, so we are told, in the history of the planet, if not the universe, would understand fully and completely the lying nature of the self-described, alleged, post modernist, proto facist, crypto neo marxist porn star.

    4. If Sam Gompers is conspiring and colluding with Republican activists to influence our elections, then he should be ashamed.

  8. What a pussy. Now go sit down and have a good cry, dearie. I’ll make you a nice cup of tea.

  9. Remember back when I posted like Braunschweigeronabunewiez?

    I got busy and lazy. Operating on that level takes work!

    Respect.

    1. What’s funny is that you think your current attempts are any better.

      1. Meh. I’ll take straightforward argument over quippy sarcasm any day.

        1. Me too.

  10. Why not ban these Tweeters from publishing books in the future, too? Those books might also be libelous.

    /sarc

  11. I would pay for a courtroom seat to watch a lawyer attempt to persuade a judge or jury that comments ascribed to a cow could be defamatory.

    Part of a lawyer’s job is to inform a client that ‘that argument is so stupid it would diminish any legitimate claim you might possess.’ I do not know whether this lawyer informed his client along that line.

    1. All cows must be immune from all tort actions. Also, all natural persons creating online presences in which they assume the identities of cows must be immune. Now that I know this, I will change my login to Braunschweigeronabunewiez’s cow and I will be able to defame people far and wide with impunity. Perhaps someone will sue me and I will invite you to the courtroom just for a laugh.

    2. Let’s start:

      You eat paste.

      1. Oops, that came from my cow.

        1. So is anyone suing you yet? Not even Nunes?

          I guess you’ll have to try harder.

          It’ll be a spectacle for all to enjoy….. One sweaty red-faced cow – so desperate to prove a point, yet no one ever takes you seriously. Exactly like Nunes, who we all know is as sharp as a pound of wet liver.

          Lord Above !!!! Have I just left myself open to a lawsuit !!!

          1. “sharp as a pound of wet liver.”

            No need to go after one’s family, you know.

            1. How sweet. You’re trying to get me to sue you, right?

              1. You’re obviously not a good German. Else you wouldn’t have to ask.

                1. No. But strangely enough I married / lived with one for thirteen years – from a little village just north of Berlin. I presume my Ex would find some sort of deutsches wortspiel in your comments?

                  1. No puns, just liverwurst.

                    1. And we’re going to get Trump to issue an executive order renaming it liverbest. He can do it during executive time if he’s not too busy being engaged with a slice of warm liver. Wouldn’t want to infringe on the proper purpose of all that executive time.

                      PS. Never eat liver and onions at the White House.

                      PPS. Similarly to those cows working for Chik-fil-A, we’re going to launch an “Eat more sulze” campaign.

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