Screenshot from the Twitter account of Devin Nunes’ Cow.

 

It’ll likely take a subpoena to reveal the identity of Devin Nunes’ Cow. Even so, the Republican congressman’s defamation lawsuit against Twitter involving the parody social media account may have more meat to it than one might expect.

Libby Locke, a partner at Clare Locke, a Kirkland & Ellis spinoff in Alexandria, Virginia, says the case brought by the California politician—widely lampooned in the press and on social media as silly and self-destructive—involves some critical issues pertaining to social media, parody and immunity that have yet to be determined. Last week, Locke and her husband Tom Clare led a team in winning a $26 million defamation verdict in North Carolina against Puma Biotechnology and its CEO.

Rep. Nunes’ lawsuit, filed in Virginia state court on Tuesday, seeks $250 million in damages and includes defamation and First Amendment claims involving two parody Twitter accounts—Devin Nunes’ Cow and Devin Nunes’ Mom—and a political consultant. Nunes alleges that the tweets directed at him were part of Twitter’s efforts to influence the 2018 congressional election and to interfere with his investigation into Russian involvement in the 2016 presidential election. (Nunes formerly was chairman of the House Intelligence Committee.)

Nunes is demanding that Twitter disclose the identities behind the anonymous accounts.

We spoke with Locke, a plaintiffs lawyer, about the two parody accounts at the heart of the case—and how the litigation may unfold. (A Twitter spokesman declined to comment; Nunes’ office did not respond to request for comment.)

Locke’s answers were edited for clarity and brevity.

Libby Locke. Photo by Carrie D. Photography.

How likely are we to find out the identity of Devin Nunes’ Cow and Devin Nunes’ Mom? A cow cannot use Twitter, so an account purporting to be written by a cow, on its face, is obviously a joke. Even so, just because an account on its face purports to be parody does not insulate all content on that account from defamation liability. If the speaker makes false statements with actual malice, and a reader reasonably understands them to be statements of fact, they are actionable for defamation.

On the other hand, with Devin Nunes’ Mom, it’s not apparent from the name or the photo used purporting to be Devin Nunes’ mom, that the account is necessarily a parody account. So it is more likely that the identity is revealed.

At the end of the day, I wouldn’t rule out the possibility of unmasking both of these individuals. Just because someone has a parody account, it doesn’t make the content of each of their individual tweets parody. If that were the law, it would provide a license to publish defamatory falsehoods so long as a Twitter account were labeled “parody.” That’s just not how the law works.

How likely do you think the lawsuit will move forward? I think this is an area of law ripe for review.

Why? Social media companies are nervous about protecting their immunity under Section 230 of the Communications Decency Act. [Under the law,] Twitter would not be responsible for statements posted by its users if it were not moderating that content. But we know that Twitter does moderate content based on its community guidelines and user policies, and based on its own statements about content that it has taken off of its site. If Twitter is calling balls and strikes on content on their platform—like Nunes’ lawsuit claims—that immunity can be stripped.

Does it make a difference that Nunes’ lawsuit involves speech about an election? Does it matter what the subject of the statements are? As a practical matter the answer is no. Nunes is a sitting congressman. He is a public official and will have to prove the statements were made with actual malice. That means the person who wrote the post either knew the statements were false or recklessly disregarded the truth or falsity of the statement.

What else strikes you about this case? It’s filed in Virginia state court, where it is very challenging to get summary judgment. In that respect, it was a smart move by the plaintiffs to file in Virginia.

But? There is a Virginia defendant. But Nunes is in California and Twitter is in California. There may be a forum non conveniens argument for the defendants.