Free Speech

Twitter Wins Lawsuit Over "Devin Nunes' Cow" Twitter Feed

Rep. Devin Nunes can't hold Twitter liable for allegedly defamatory posts by Twitter user:

|The Volokh Conspiracy |

Nunes argued (in the court's words) that "Twitter has a bias towards a point of view and that bias is so extreme that it governs its decisions regarding content that is allowed on its internet platform," so that Twitter should lose its 47 U.S.C. § 230 immunity, and thus become liable for user-posted content.

No, said Judge John Marshall Wednesday in Nunes v. Twitter (Va. Cir. Ct.) (correctly, I think); § 230 regardless of whether an Internet platform engages in viewpoint discrimination.

UPDATE: Originally forgot to include the link; just added it. (Thanks to commenter santamonica811 for the reminder!)

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  1. I take it there is no available link to the case that you could insert into your OP, right?

    1. Has anyone ever seen an opinion in letter format before?

      1. Yes. I see it in state court a lot. It allows the judge to explain his reasoning without it limiting other bases for upholding the decision on appeal. The decretal language in the order itself will govern over the letter, and the order will be broader (“Defendant’s motion is granted.”)

    2. Um. The link still doesn’t work. It takes me back here.

      1. Click the actual case title.

        1. Still just brings me back here.

          Am I the only one having this problem?

  2. I understand Devin can still sue the cow though. Lord knows which end of the animal he’ll take the deposition from…

    1. The lawsuit at issue was against bot Twitter and the cow. Technically Twitter didn’t win the lawsuit. The won a motion to dismiss Twitter from the lawsuit. The Suit goes forward against the Cow.

      1. “The Suit goes forward against the Cow.”

        I don’t recall clingers using random capitalization so much before Trump’s illiterate tweets became required right-wing reading.

        Is this just an affectation designed to express solidarity with the poorly educated, a conscious rejection of elite Americans and their fancy standard English, emulation of an ignorant leader, or something else?

      2. ” Technically Twitter didn’t win the lawsuit. The won a motion to dismiss Twitter from the lawsuit.”

        that’s a win. For Twitter, anyway.
        The fictitious cow could still be on the hook for all $250 million. For successfully painting Rep. Nunes as a clown. Yep, it’s all that darn pretend cow’s fault, and nobody else’s fault, that Rep. Nunes is considered to be a total buffoon and a laughingstock.

        1. Yes it’s a win for Twitter, but the lawsuit wasn’t won. It still goes on.

          1. TWITTER won the lawsuit. full stop.
            The claim you seem to be holding on to is that Rep. Twit hasn’t lost the lawsuit (yet), because there remains a defendant. However, there doesn’t seem likely to be a remaining defendant with >$250M in assets that can be used to pay Rep. Twit’s damages (as alleged).

  3. The problem with this is that the Right will eventually abandon the presumption that the law protects everyone, and that is when things will start getting scary.

    A fair court would have ruled in Nunes’ favor under the “good faith” clause because Twatter clearly isn’t exercising it. And bystanders who won’t accept the legitimacy of an election that defeats Trump watching this is not a good thing….

    1. A fair court would consider Nunes a clown filing junk lawsuits.

    2. A fair trial court in VA would read all the case law on section 230 and come to the exact opposite conclusion. Which is what it did.

    3. You didn’t read the opinion, did you?

    4. Ah yes, rule in favor of the right lest they start getting violent.

      Weak.

      1. Yea, because that is exactly what is happening right now, amiright. Lots of alt-right rioters burning down a Wendy’s and tanking down statues; and what the left never carps endless about fearing (the authoritarian right), eh?

        Weak sauce, Sarc, and “feh” on Ed for acting like a stereotype.

        1. Feh or not, we go down a very slippery slope when courts stop agreeing that words mean what everyone always thought they meant.

          1. Ed, you see everything you don’t like as a slippery slope to violence. You’re wrong.
            But I don’t think you care about that; it’s some kind of pressure release for you getting repeatedly disappointed.

            1. But THIS is the time it comes true, for sure. The streets will run red with the blood of Ed’s enemies, and the sun will rise on a glorious new America.

        2. The populous is with the protesters, m_k.

          Ed is just talking about bitter stochastic terrorism, not protesting.

          And don’t conflate the protesters with rioters. Burning the Wendy’s is not what’s moving the populous.

          1. The populous is with the protesters?

            That is an empirical question, and they are not. People are against racism, but not looting and arson and taking down the statues.

            1. I’m not sure people are against racism as much as needing to virtue signal that they are morally good people. Most of the BLM protesters are the very same people I could see attending a Klan lynching a century ago, and for the very same reasons.

              They are useful idiots who are psychologically adrift and morally flexible. Much of this has been caused by the closing of the bars and sports stadiums…

              1. Most of the BLM protesters are the very same people I could see attending a Klan lynching a century ago, and for the very same reasons.

                Oh bullshit. How many lynchings have these protestors committed?

                How many people have they beaten?

                You’ve gone from being a ridiculous liar to a malicious fool.

              2. Whatever fantasy you want to believe, what’s going on there is quite different from your ‘I fear without more appeasement, the right will start to get violent’ nonsense. A disaffected minority turning violent is the KKK, who at best had local control in America.

                What’s happening now, regardless of how you characterize it, is worldwide, and is not the KKK.

            2. Not actually fair to conflate the protestors with the looters, etc., you know.

            3. ” People are against racism, but not looting and arson and taking down the statues.”

              Casual assumption that protesters are looting and arsoning noting, but ignored as stupid. People who are against racism don’t object to taking down racist statues. Protesters have been politely requesting that the racist statues be taken down for years, even decades, and were (not-so-) politely ignored. So, people who wanted to defend the non-racist reasons to have statues of racists get a big ol’ “boo-hoo” for their concerns… should have switched out the racist statues for non-racist ones back when the requests were still polite. When you ignore the polite requests, you don’t get to complain when the non-polite actions replace the polite requests. y’all had your chance to keep it polite, and didn’t .

          2. “Ed is just talking about bitter stochastic terrorism, not protesting.”

            I love how it’s “bitter stochastic terrorism” when the right is upset, while mere “peaceful protesting” when the left is upset. And while the USSS doesn’t publicize a list and I’m doing this from memory, let’s look at the 535 Congresscritters and physical violence.

            It was Republican Congressman Steve Scalise and the Republican baseball team that got 70 bullets fired at them in 2017. It was Republican Senator Susan Collins who got starch labeled as “anthrax” at her Bangor (ME) home and whose staffers were told they would be raped. See: https://www.dailysignal.com/2019/05/16/susan-collins-not-pelosi-is-the-true-profile-in-courage/ And Republican Senator Rand Paul wound up with 6 broken ribs and other internal injuries when he was attacked by his leftist neighbor.

            Scalise & Paul were seriously injured. Much of Downtown Bangor was shut down when Collins’ husband received that letter. And this “bitter stochastic terrorism” is happening to Republicans, not Democrats.

            1. Rand Paul was attacked on account of his politics rsther than personality, though the two may not be entirely distinct?

              How about Gabby Gifford, any reason to leave her out of your compilation? (Can we look forward to seeing her husband in the Senate come January?)

              “‘bitter stochastic terrorism’ when the right is upset, while mere ‘peaceful protesting’ when the left is upset” Not clear as to who is who and what is what there. Can you make that clear by pointing to examples of each? When “militia” carrying AR-15s show up at protests, what kind of “terrorism” would you call it?

              Is the so morally anguished Susan Collins the only Congressperson to have been targeted with malicious hoaxes of the sort you describe? It seems to me that she hasn’t been. But in any event, what’s your point? Isn’t it time for her to retire and stop anguishing so much?

            2. ” And this “bitter stochastic terrorism” is happening to Republicans, not Democrats.”

              You meant to say,
              “this cherry-picking is happening to Republicans; not Democrats.”

              Because outside your bubble-world, Some of the D’s have experienced violence, as well.

            3. Ed, you are moving your argument again.

              I’m not talking about what has happened (others have rightly taken you to task on that) I’m talking about what you PREDICT will happen.

              The problem with this is that the Right will eventually abandon the presumption that the law protects everyone, and that is when things will start getting scary.
              THAT isn’t whatever you were trying to write up, THAT is terrorism. And you threaten it the *moment* anything in politics doesn’t go your way. Like clockwork.

              You say it’s scary, but it’s clear to everyone it’s something you want; it’s something you need to believe is coming. That some day the streets will wash all this losing away in a sea of blood.

              It’s sick. And it’s weak. And you can’t stop with this sick weak sauce.

              And m_k can’t stop defending you.

          3. I’m going to start rioting if people don’t start spelling “populace” correctly.

            1. From my cold dead fingers!

    5. As Professor Volokh has explained, a provider not being treated as the publisher of information provided by another (based on §230(c)(1)) isn’t conditioned on the good faith referred to in §230(c)(2)(A).

      They aren’t, under federal law, to be treated as the publisher of such information. Full stop.

      1. Did you happen to read the second to last paragraph in the ruling?
        Which section did the judge cite?

    6. A fair court in a SLAPP jurisdiction would have made Nunes pay for his censorious abuse of the legal system.

      1. That’s why he keeps filing in Virginia.

        1. I hope VA plans to fill that gap soon.

          How many non-SLAPP jurisdictions remain?

          1. How many federal district courts are there?

            1. But is there a federal defamation law?

              1. Mr. Trump was relying on it when he sued Mr. Bolton.

      2. “Censorious abuse of the legal system” is what Nunes was up to with this lawsuit? I hadn’t been able to figure out his purpose. Does he think he hasn’t yet convinced the world that he is at best a horse’s behind?

        1. As long as a small subset of Californians remains confused on the issue, he can keep getting sent back to DC.
          Alternatively, his voters know he’s a horse’s ass, and that’s why they keep sending him away from California.

    7. You remind me of that cartoon character who kept saying ‘why, one of these days, I’m gonna blow my top . . . you just wait and see.’

      Except the cartoon character wasn’t a half-educated, bigoted, right-wing culture war casualty.

    8. “And bystanders who won’t accept the legitimacy of an election that defeats Trump watching this is not a good thing….”

      Whether or not Trump accepts his defeat, when the deep state stops listening to what he wants because he was defeated. I, for one, look forward to a time when the AG isn’t a toady who will do exactly as told by a corrupt Prez.

  4. I don’t think it’s talked about enough that the former chair of the House Intelligence Committee, and current ranking member, hired an ethically challenged lawyer to sue a Twitter parody account for saying mean things about him. In addition to him being vexatious, censorious, and not understanding the Streisand effect, it’s just super pathetic. Like so pathetic that you’d think senior Republican leadership have probably taken him aside and been like: dude, this is really pathetic and embarrassing for you and us.

    1. Anyone like Nunes who whored his integrity and went scampering to Trump, like a cockroach or slimy worm, to give Trump a heads-up about investigations–he could care less what we think about this lawsuit. Nunes knows full well that it’s only about the 27th worst thing he did in Congress, so it will barely make his Wikipedia web page, let alone his eventual obituary entry.

      1. Yes, terrible. The good news,President Trump has launched dozens of investigations into Biden’s campaign persons. He is using foreign spy agencies directed by Rick Grinell, to entrap Bidens people in foreign entanglements. The October Surprise(s) are going to be glorious, and all legal. Legal because Nunes uncovered Obama doing it, and Nunes is the bad guy.

        1. Bigots steeped in backwater conspiracy theories and right-wing fantasies are among my favorite conservatives.

          1. The DC Circuit Court of Appeals is engaged in such backwater conspiracy?

            Right….

        2. ” The October Surprise(s) are going to be glorious, and all legal.”

          These statements might be true, if Trump were competent or capable. He is actually neither, so you’re counting chickens and the eggs haven’t even been laid yet, much less hatched.

    2. I believe that’s two parody accounts (Nunes’ cow and his mom), plus Liz Mair.

    3. Yea, I mean Nunes should have gotten the guy’s parody account copyright struck like carpedonktum’s was, for “violating terms of service” the way the left shuts down the right.

      Oh….

      1. LOL Carpe Donktum.

        Great company you’re keeping there.

        Nonstop videos of Trump shooting the media. So manly!

        1. Parody bad? Or good? My situational determination meter seems out of calibration.

          1. Yes, by criticizing this one guy’s dumb and violent content, I was criticizing parody.

            The guy is too dumb or stubborn to stop stealing other people’s content in non-fair use ways.

          2. Jon Steward “destroys” Sarc sayS “good.“

            Rando meme guy make fun of CNN Sarc No likey.

            1. I don’t care if you use the word destroy. I think it’s not a good joke showing Trump shooting a bunch of people with CNN superimposed over their heads.

              Not calling for censorship, just noting what’s lame.

    4. Rand Paul was attacked on account of his politics rsther than personality, though the two may not be entirely distinct?

      How about Gabby Gifford, any reason to leave her out of your compilation? (Can we look forward to seeing her husband in the Senate come January?)

      “‘bitter stochastic terrorism’ when the right is upset, while mere ‘peaceful protesting’ when the left is upset” Not clear as to who is who and what is what there. Can you make that clear by pointing to examples of each? When “militia” carrying AR-15s show up at protests, what kind of “terrorism” would you call it?

      Is the so morally anguished Susan Collins the only Congressperson to have been targeted with malicious hoaxes of the sort you describe? It seems to me that she hasn’t been. But in any event, what’s your point? Isn’t it time for her to retire and stop anguishing so much?

    5. “…you’d think senior Republican leadership have probably taken him aside and been like: dude, this is really pathetic and embarrassing for you and us.”

      Are you kidding, Nunes isn’t embarrassing them, he’s an R stalwart, much appreciated by Trump. Other ambitious R reps, like Matt Gaetz, compete with Nunes for attention however they can get it. (BTW, what’s with that 19 y.o. Cuban lad Gaetz has taken under his wing and has living with him? Enquiring minds want to know.)

      1. “Devin Nunes’ mistake was that he instead should have TAXED Twitter”

        Trump demands loyalty, but is incapable of exercising it. You’re either useful to him RIGHT NOW or you’re NOTHING.

        1. Oops. Paste error. Meant to quote
          ” he’s an R stalwart, much appreciated by Trump. “

  5. Twitter has a bias towards a point of view and that bias is so extreme that it governs its decisions regarding content that is allowed on its internet platform,

    I thought the suit was not over content restriction but that Twitter wasn’t cooperating in revealing the ID of the poster that offended Nunes. Or is this a different lawsuit? Damn I can’t keep up and hold a day job.

    1. I believe he both sued Twitter directly for damages but is also trying to use the discovery process to force Twitter to reveal the ID of the cow and his mom.

  6. Professor Volokh

    This decision seems right to me. I think you previously explained, quite well, how Section 230 works (or how it should work based on how it’s written).

    My hypothetical is this: Say someone started a Twitter account that appeared to be the account of some public figure – e.g., one that seemed to be Devin Nunes’ account. Say Twitter mistakenly gave that account the blue check mark asserting that It was actually Mr. Nunes’ account. Say the person who controlled that account – not Mr. Nunes – posted stuff that effectively defamed him – e.g., claiming to be him they confessed to having improperly used their position in Congress to benefit themselves financially.

    In that situation, Twitter probably could be successfully sued for its own speech – the assertion that the account was actually controlled by Mr. Nunes?

    1. Interesting. I think they would be the information content provider in that case under the reasoning of Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008). I would think a blue check would be their own content creation.

    2. Twitter would have a cause of action for indemnification or contribution against the fraud that convinced them that the mystery person in your hypothetical was actually controlled by Mr. Nunes. Assuming the assertions made turned out to be false. If they’re true, there’s not defamation.

    3. In that situation, Twitter probably could be successfully sued for its own speech – the assertion that the account was actually controlled by Mr. Nunes?

      Possibly. But Nunes is a public figure, so he’d still have to show actual malice (in the defamation sense, not the lay sense) on the part of Twitter.

  7. I can’t believe that you finally wrote about this case and omitted so much of the hilarity. Courtesy of Lowering the bar:

    That account had 1,000 followers when Nunes sued in March 2019. Now it has over 730,000 (as of June 24).

    Not only that, many similar accounts also popped up because of the publicity Nunes had managed to generate. One of them, “Devin Nunes’ Mom,” is no longer active, but others that are still going include, at a minimum, “Devin Nunes’ Dad,” “Devin Nunes’ Alt-Mom,” “Devin Nunes’ Grandma,” “Devin Nunes’ Cow’s Mom,” “Devin Nunes’ Lawyer,” “Devin Nunes’ Lawsuits,” and “Devin Nunes’ [body part redacted].” So at least in the short term, if Nunes thought his lawsuit would scare Twitter users into silence, that seems to have been a miscalculation.

    Also, he apparently claimed $250 million in damages.

    https://loweringthebar.net/2020/06/court-dismisses-twitter-in-cow-case.html

    1. Martinned: For more on the Nunes lawsuits, see this post and this one.

    2. Also, he apparently claimed $250 million in damages.

      Nunes has filed something like a half-dozen frivolous defamation lawsuits; combined he has alleged that different purported tortfeasors have damaged him to the tune of roughly a billion dollars. (Not a typo.)

  8. Nunes — is he the guy with a degree in cow-milking who keeps getting his ass kicked by an illusory cow?

  9. Does Devin Nunes just go out of his way to look like a complete jackass?

    1. Yes. He’s a Trump fan, and follows the master’s lead.

  10. Devin Nunes’ mistake was that he instead should have TAXED Twitter — $10 per account established, which is minor compared to the $250 of the NFA, particularly in 1930’s money.

    Although there is also the approach of the Federal Narcotics Act and shut down Twitter for failing to buy tax stamps we won’t sell them. As they are not a publisher, there’s no First Amendment issue.

    1. “Devin Nunes’ mistake was that he instead should have TAXED Twitter”

      Under what taxing authority would he act? since the Magna Carta, the Lords no longer have authority to tax the vassals unilaterally.

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