Rep. Devin Nunes Loses Right of Publicity Claim Against @DevinBull (?)

In Nunes v. Meredith, decided today by Judge Jennifer Thurston (E.D. Cal.), Congressman Devin Nunes sued Ben Paul Meredith for common law misappropriation and stalking, based on "Meredith's purported pattern of public, negative commentary about Nunes and his political career." The facts:

Nunes has received criticism from many individuals for his political positions and actions taken pursuant to his role in national politics. He has also filed a myriad of lawsuits across the country in attempts to stop this criticism. His lawsuit against Meredith seeks similar relief and makes broad allegations that Meredith used multiple Twitter accounts to harass and stalk Nunes. Nunes did not submit copies of these posts, nor did he identify the accounts, which he contends Meredith manages as part of his alleged scheme to stalk and harass Nunes.

According to Nunes, Meredith is a sophisticated artificial intelligence data scientist who co-founded a technology company, which creates and delivers artificial intelligence solutions. Nunes further contends that Meredith used this "extensive experience" to launch a campaign of harassment on Twitter, designed "to embarrass Plaintiff, to make Plaintiff's life miserable, and to instill fear in Plaintiff and others." Specifically, Nunes makes the following allegations regarding Meredith's conduct:

• Operates multiple "anonymous Twitter accounts in a scheme to follow, alarm and harass" Nunes
• Coordinated with "violent third partiers"
• "Doxed" Nunes's locations "dozens of times"
• "[T]weeted and retweeted thousands of false, threatening, hateful, riotous, profanity-laced, salacious and scandalous statements about Plaintiff"  (emphasis in original)
• Accused Nunes of various state and federal crimes
• Used "derogatory, insulting and threatening hashtags within tweets"
• "[T]hreatened Plaintiff's life and threated to come after Plaintiff"
• Used Nunes's name, photograph, and likeness to sell merchandise and to conduct "professional fundraising" with Meredith's social media posts

Nunes did not provide any examples of this alleged digital speech with his complaint. With his opposition to the anti-SLAPP motion, Nunes included a website screenshot which states that a woman named Michelle Emmett is responsible for the @devincow Twitter account that was used to "troll Nunes" (i.e., to post Tweets about Nunes). Nunes also provided a screenshot of Emmett's personal Twitter account. Nunes asserts a connection exists between Emmett and Meredith because Meredith posted many Tweets tagging the Emmett's personal account and research from "Whitepages" shows the two were married. Nunes provided no further examples, screenshots, or other evidence of the alleged connection….

The court rejected Nunes's misappropriation claim, which is basically what's often known as a "right of publicity" claim:

[Cal. Civ. Code §] 3344(d) prohibits a cause of action under the statute for unauthorized use of a person's name, voice, signature, photograph, or likeliness if used "in connection with any news, public affairs, or sports broadcast or account, or any political campaign." California courts and the Ninth Circuit apply this statutory exemption to both the statutory and common law causes of action for commercial misappropriation….

According to Nunes' allegations, Meredith has used Nunes name, photograph, and likeness "for professional fund-raising" and to promote himself and his "multiple anonymous Twitter accounts." … Nunes does not dispute, however, that the challenged conduct relates to Meredith's critique of Nunes as a political figure. In fact, Nunes affirmatively alleges Meredith's intent for appropriating his likeness was to "take advantage of Plaintiff's reputation, prestige, and known brand in Tulare County." According to Nunes, Meredith's scheme of digital speech targets and seeks to disparage Nunes's reputation as a political figure in the community. Matters of current political issues, such as commentary on the suitability of a political official squarely fall within the § 3344(d) exemptions. Michaels v. Internet Entm't Grp. (C.D. Cal. 1998) (noting § 3344(d) provides a "complete newsworthiness defense" which includes "discussion of politics and public affairs"). Because the challenged conduct arises in the context of Meredith's critique of Nunes as a politician, the Court finds § 3344(d) bars Nunes's claim for misappropriation….

Nunes also sued under the California stalking statute, but the court concluded that Nunes had not sufficiently alleged the details of what was said:

[A] factual dispute exists regarding the circumstances of the alleged threat to Nunes's life and whether it constitutes a "true threat." … Assuming Nunes's allegations made in the complaint are true—that Meredith was responsible for a threatening post and did so with serious intent to inflict harm on Nunes—the complaint has sufficiently pled facts to overcome a First Amendment defense because a true threat does not fall under First Amendment protection….

[Nonetheless, under the California stalking statute], "the plaintiff shall be required to support his or her allegations with independent corroborating evidence." … Nunes did not provide any corroborating evidence such to satisfy this element of the civil stalking statute. Despite alleging that Meredith posted thousands of statements disparaging and threatening Nunes on Twitter, a public and freely accessible platform, Nunes did not provide any of these allegedly offending posts to the Court. Nunes did not submit any communications or statements by Meredith to corroborate his allegation that Meredith posted thousands of Tweets disparaging Nunes.

The only documentary evidence that Nunes attached, undermines rather than corroborates his claim. With his opposition to the motion to dismiss, Nunes submitted a screenshot from a website, purportedly identifying Michelle Emmet as the owner of the @devincow Twitter account used to "troll Nunes." Nunes also included a screenshot of Michelle Emmett's personal Twitter page. Nunes contends he reviewed Emmett's Tweets which revealed "she was tagged by Meredith in innumerable tweets about [Nunes]." Nunes, however, did not submit any of these "innumerable" Tweets.

Nunes also claims the "Whitepages" indicated Emmett was married to Meredith. {The Court fails to see the relevance of this fact. To the extent that Nunes intends to convey that Meredith is responsible for Emmett's Tweets because he was married to her, the Court rejects that notion as unfounded at this time; Nunes has cited no case law suggesting that the actions of an individual can be imputed to their spouse as a matter of law or fact in these circumstances.} Nunes likewise failed to provide this alleged evidence.

Considering only the evidence Nunes has submitted, the website and Emmett's Twitter page indicates Emmett, not Meredith, is responsible for the alleged harassment and stalking of Nunes on Twitter. Nothing in the record links Meredith to Emmett's accounts. While the 12(b)(6) standard requires the Court to take facts in the light favorable to the plaintiff and make reasonable inferences, it does not require the Court to make illogical leaps. Accordingly, none of the documentary evidence provided by Nunes connects Meredith to the alleged harassment or stalking. Thus, Nunes has failed to sufficiently plead all explicit elements of [a California] stalking claim ….

{Nunes identifies another incident for which he provided no evidence or logical basis to attribute it to Meredith. Nunes claims that Meredith was associated with a political activist who "harassed" Nunes on plane. According to Nunes, Meredith endorsed the incident by posting photos of it. However, Nunes did not provide screenshots of Meredith's alleged posts. Although Meredith submitted a copy of a news article reporting the incident with his motion, nothing in this article implicates Meredith's involvement. Therefore, this potential evidence suffers from the same defect as the @devincow Twitter page because it shows no connection to an action or statement by Meredith.} …

The court did, however, leave room for the stalking claim to be revived if the complaint is properly amended:

[If Nunes] can submit with his amended complaint, independent corroborating evidence …, Nunes may sufficiently state a claim and a probability of success to overcome the anti-SLAPP motion at the motion to dismiss stage [as to stalking].

Congratulations to Brian D. Whelan of the Whelan Law Group, who represents Meredith.