Free Speech

Rep. Devin Nunes Suing Tweeters for "Insulting Words," Claiming the Insults Caused $250M of Damage to Him

This is besides the libel claims he is bringing against them; highly insulting Tweets, he argues, are "fighting words" and thus punishable under Virginia law.

|The Volokh Conspiracy |

This is from the Complaint in Nunes v. Twitter:

Defendants' insulting words, in the context and under the circumstances in which they were written and tweeted, tend to violence and breach of the peace. Like any reasonable person, Nunes was humiliated, disgusted, angered and provoked by the Defendants' insulting words.

Defendants' words are fighting words, which are actionable under § 8.01-45 of the Virginia Code (1950), as amended.

As a direct result of Defendants' insulting words, Nunes suffered actual damages, including, but not limited to, insult, pain, embarrassment, humiliation, mental suffering, injury to his reputation, special damages, costs, and other out-of-pocket expenses, in the sum of $250,000,000 or such greater amount as is determined by the Jury.

Nunes is suing in Virginia, and it appears that some of the defendants may have been posting from Virginia; and Virginia law does provide—using language quite close to the First Amendment definition of the "fighting words" exception—

All words shall be actionable which from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace.

But Tweets sent across vast distances won't qualify under either the statute or the exception, precisely because the distance between speaker and subject precludes their creating immediate violence and breach of the peace (see, e.g., State v. Drahota (Neb. 2010)); and the fighting words precedents make clear that such insults can be stripped of First Amendment protection only if they indeed tend to provoke immediate physical retaliation.

Now some Virginia cases seem to take the view that the "insulting words" statute bans only statements that are both libelous and at the same time fighting words; if so, then the "insulting words" claim would be redundant of Nunes's libel claim. Others (e.g., Hutchins v. Cecil, 44 Va. Cir. 380 (1998)) seem to read the statute, according to its text, as covering fighting words generally—and Nunes's complaint takes that view. But in either case, Tweets won't qualify (except in highly unusual cases where people send Tweets insulting someone who happens to be in the same physical place as they are).

NEXT: Rep. Devin Nunes's $250M Lawsuit Against Twitter Will Go Nowhere

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  1. “Redundant of Nunes’s libel claim”: well, were it a criminal matter (and it should be), it would be perfectly normal to charge as many crimes as possible under as many statutes as seem even remotely relevant (regardless of their constitutional validity which can always be debated in the appellate courts), just in the hope that some of the charges will stick in the end. For an excellent example of how this is done, see the documentation of our nation’s leading criminal “parody” case at:

    https://raphaelgolbtrial.wordpress.com/

    That case, incidentally, deals with issues quite relevant to the ones at the core of the Nunes lawsuit, since it dealt with outrageous texts distributed in the “name” of distinguished NYU department chairman who is also the representative to the Vatican of the Union of Orthodox Congregations of America. Confronted with such improprieties, the trial court appropriately held that “neither good faith nor truth is a defense.” In a somewhat more nuanced manner, the Second Circuit ultimately ruled that it’s okay to “deceitfully” send out emails in the name of another, as long as one does this with the intent to convey an “idea,” or as long as the emails are “puerile” enough–but that it’s not okay to do this with the intent to cause (no matter how truthfully) “damage to a reputation.”

    1. P.s. and to conclude my comment (I had a little interruption), I would merely add that clearly the ongoing assault against Nunes is aimed at damaging his reputation rather than at conveying an “idea,” and clearly the “tweets” in question are not sufficiently “puerile” to merit constitutional protection. What we really need to do is come up with a good legal pretext to criminalize this stuff and then apply the Second Circuit’s important new standard, so hopefully this lawsuit is just the beginning.

      1. Exhibit A on the folly of Section 230. Quixote can’t think of any better way to cope with the stuff Section 230 unleashed than to criminalize speech. He’s got lots, and lots of company, too. Repeal Section 230.

        1. Section 230 or no, certain forms of “speech” must not be tolerated, and in this regard one must applaud Eugene’s skill in arguing that libel may be appropriately criminalized consistent with the Constitution, an argument he succeeds in making while cleverly avoiding any mention of 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 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.”

          Such rubbish! (And there’s of course a good deal of more recent material.) Eugene deserves nothing but praise for failing to signal this nonsense when making his various arguments that criminal libel passes constitutional muster.

        2. Exhibit A on the folly of Section 230. Quixote can’t think of any better way to cope with the stuff Section 230 unleashed than to criminalize speech. He’s got lots, and lots of company, too. Repeal Section 230.

          I’m not sure which is dumber — your general crusade against ? 230 (which may be venal rather than dumb) — or your interpretation of every single data point as an argument against ? 230.

          Quixote’s crusade has nothing whatsoever to do with ? 230 in any way, shape, or manner. Quixote is upset because Raphael Golb was convicted of various crimes relating to criminally impersonating someone because he was mad that the person was mean to his daddy in relation to an academic dispute. (I assume Quixote is Golb, but I have no proof of that; it’s just hard to see why anyone else would be obsessed with the case.)

          1. Quixote is not trying to criminalize speech; he is satirically opposing such criminalization.

            1. David Nieporent is wrong on multiple counts. Far from me to engage in “satire”; nor am I “obsessed”; quite to the contrary, I’m offering support for Eugene’s principled defense of criminal libel, as well as for the “hit-and-run” form of scholarship in which he engages in this and other respects. And the characterization he offers of our nation’s leading criminal “satire” case?an important legal precedent that clearly deserves more attention than it has received in this forum?seems to reflect his own personal opinion and is both factually and legally misleading. Rather than go into details, I would refer readers to articles such as the following:

              https://forward.com/opinion/385050/

              Needless to say, I disagree with the suggestion made in such writings, and even believe students at NYU and elsewhere should be prevented from viewing them. Nonetheless, they appear to be far more accurate than David Nieporent’s statement of the “facts.”

              1. P.s. That being said, I do commend Nieporent’s own “hit-and-run” style, which I’ve noticed several times before?his skill, that is, in avoiding meaningful engagement with certain views that don’t merit discussion. In the hands of principled, conservative academics like Eugene Volokh, this skill is a potent polemical weapon?precisely what’s needed in today’s cutting-edge intellectual environment, with so many “liberals” around coming up with the nonsense I’ve referred to elsewhere in this thread (e.g. the Special Rapporteur’s claim that “criminal defamation is not a justifiable restriction on freedom of expression” and that “all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws”).

                1. P.p.s. I wish to make it clear that in using the pronoun “he” in my first reply to Nieporent above, I was referring to that particular individual’s preferred characterization of the facts involved in our nation’s leading criminal “parody” case, and not to Eugene Volokh’s various statements regarding that case, with which I of course wholeheartedly agree.

      2. “(I had a little interruption)”

        Commedus Interruptus. I hate it when that happens.

        1. Me too. Also when I clumsily repeat words and make typos as I did above.

  2. How could it cause $250,000,000 in damages to him? The most he could claim was lost wages from losing an election over and over for the rest of his life.

    Unless he can claim lost payments, wink. Or payments without the wink, such as keeping leftover donations.

    1. I assume he’ll seek punitive damages. Isn’t the amount in question designed to mirror the amount requested in the Washington Post case?

      1. Surely, Nunes has suffered great injury, perhaps greater than any other of Trump’s catamites, and will be justly compensated in court. Perhaps damages will be rewarded that nearly match those obtained by Trump (et al) when they had their fantastic and decisive victory in the suit agains the NFL. Of course, matching those results will be difficult as damages in the prior case were trebled — and, with interest.

  3. Clearly his reputation itself is worth that much. But this does speak to one of the fundamental advantages of criminal libel: to jail someone for this crime, you don’t need to show that he caused any actual harm; the requisite mens rea suffices. Let us not pay any attention to the foolish words quoted by the Court in Garrison:

    “[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.”

    These remarks (attributed by the Court to the authors of a draft of the MPC) are obviously wrong, and Eugene, in his various discussions of criminal libel, is right not to address them–just as he is right not to mention the words of the UN Special Rapporteur on Freedom of Expression and others 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.” Such foolish thoughts! These “international human rights” propagandists will come up with the silliest claims. We here in America know better.

  4. I don’t see how anything could possibly be more injurious to his reputation than this very lawsuit, but go him, I guess.

    1. Come now, sometimes the laws need to be tested, so we can create new legal precedents for the future. Certainly Nunes has done no more harm to himself than one of our distinguished colleagues at NYU did in seeking to have someone who had accused him of plagiarism thrown in jail; certainly no more than Eugene has done in defending criminal libel while failing to mention the fundamental “freedom of expression” arguments I’ve alluded to above (see http://tinyurl.com/criminal-libel-standards). In regard to Eugene, it should be noted that I fully support his efforts. Above all, it’s important never to acknowledge that one may have been wrong about something or that one may have contributed to some sort of an injustice, as such an acknowledgment could have a rather unpalatable impact on one’s own reputation. Just hit the so-called professional community with your claim, and then move on, calmly ignoring further developments or counterclaims. Some of us call that “hit and run scholarship.” It’s a method sometimes called out pejoratively, but I fully approve of it.

  5. Well, it will be interesting to follow this case from close. Let’s see how tweeter takes further actions. – https://impactresearch.org/

  6. “tweeters” – is that a sly reference to Schitt’s Creek? Aw… tweeters.. Funny. 😀

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