Devin Nunes Has a Cow, and Free Speech Is Endangered

California Rep. Devin Nunes opened himself up to widespread ridicule across the internet yesterday after he reportedly filed a lawsuit against Twitter, a conservative strategist, and two parody accounts -- including one called "Devin Nunes' cow," which purports to be, well, an online manifestation of the Republican congressman's livestock.

Speaking about the lawsuit with Fox News later that day, Nunes claimed that critical comments posted online were part of "an orchestrated effort" to smear his name. He is suing Twitter and the individual critics for "negligence," "libel," and "insulting words."

Paradoxically, at various points in the complaint, Nunes accuses Twitter of censoring conservatives, then demands that the platform censor his critics' speech. The complaint only devolves further from there:

The full scope of the conspiracy, including the names of all participants and the level of involvement of donors and members of the Democratic Party, is unknown at this time and will be the subject of discovery in this action.

Nunes' lawsuit will almost certainly be thrown out. But while some aspects of the lawsuit lean toward the comical -- "Devin Nunes' cow" has seen its follower count skyrocket from about 1,000 pre-lawsuit to more than 450,000; "Devin Nunes' Alt-Mom" now has some 33,000 followers -- there are also some ominous implications here, namely for free speech protections.

Libel

The United States has among the best libel protections for critics in the world. Since the Supreme Court's landmark New York Times Company v. Sullivan decision in 1964, public figures have had to overcome an incredibly high bar of "actual malice" to win a libel suit in court.

It's a standard that has allowed free speech to flourish in the United States and gives anyone the right to criticize, mock, and even insult public officials. Parody and hyperbolic statements are also strongly protected by the Supreme Court, thanks to Hustler Magazine, Inc. v. Falwell, a case that saw televangelist Jerry Falwell aggrieved at a parody piece about him that ran in Hustler. (While I haven't read every single one of the cow's tweets, I'm pretty sure we can assume no reasonable person is going to believe @DevinCow was actually Nunes' cow, or that another account was in fact Nunes' mother, as it claimed to be.)

Even so, those free speech protections are currently under attack from a variety of angles. Nunes' ally in the White House, Donald Trump, has repeatedly said the United States needs to "open up" the country's libel laws to improve the plausibility of filing a suit. It's been easy in the past to dismiss the president's threats and to mock them: There is no federal "libel law"; our libel protections come from the First Amendment, interpreted by the Supreme Court. But those remarks became all the more real last month, when conservative Justice Clarence Thomas revisited New York Times Company v. Sullivan. The longer Trump is in office and the more influence he has over Supreme Court nominees, the likelier it will become that libel protections will be overturned by the court.

Anti-SLAPP

Even with our current libel protections still in place, Nunes still has one advantage: He can make his critics pay--literally. This is a classic "strategic lawsuit against public participation" (SLAPP) case. Powerful people or corporations who are terrified of scrutiny can file a lawsuit they likely know they will lose. They'll do so in an attempt to drain their critics' bank accounts, knowing their opponents will have to spend a fortune on lawyers to defend themselves, which means defendants are essentially punished for speech protected under the Constitution. News organizations know SLAPP suits well and indeed are particularly susceptible to them.

Nunes and Twitter are both based in California, but as Techdirt's Mike Masnick pointed out, Nunes filed his lawsuit in Virginia, which has a much weaker anti-SLAPP law than California. This means he can probably drag out his losing lawsuit longer and may be able to force the defendants to spend more money. (It's unclear at this time how Nunes is financing the lawsuit.)

Strong anti-SLAPP laws allow defendants to get these types of frivolous lawsuits dismissed quickly. There remains no federal anti-SLAPP law on the books, and any momentum to pass one has been stalled. It's possible that the defendants will now shell out ungodly sums to defend themselves in court.

The right to anonymity

The right to anonymity is a longstanding feature of the First Amendment, and this case is a prime example of why such protections are still important. Here we have @DevinCow, a critic of a powerful individual, who likely feared retribution if their identity was uncovered. Lo and behold, Nunes is trying to do just that. Hopefully the judge in this case will see through it and throw the case out before ordering the person's identity to be disclosed.

Yet the protection of anonymous speakers online has taken a hit in recent years -- despite its many benefits to free speech. Commentators have called for tech companies to do away with user anonymity entirely in the name of fighting trolls who hide behind pseudonyms. Some have even proposed laws to curtail it. With powerful lawmakers not just criticizing social media companies but also suing them, the chances that platforms like Twitter will continue to offer people anonymity may further deteriorate.

Section 230

In suing Twitter itself, Nunes made a point of listing the social media platform as the "first" entity named in the lawsuit, because he thinks the company is primarily responsible. Twitter, however, is protected from being sued in this case by a law known as Section 230 of the Communications Decency Act.

Section 230 grants internet platforms like Twitter immunity for potentially libelous posts published by its users. Given that billions of tweets are posted every day, it would be impossible for Twitter to preemptively fact-check all of them. (And really, the internet as we know it would cease to exist without those Section 230 protections.)

Nunes' argument against Section 230 is hard to grasp. He essentially says that Twitter somehow "encourages" offensive content, and therefore Section 230 protections should not apply. (To be clear, it's not Twitter itself running these anonymous parody accounts.)

Twitter has plenty of lawyers, and legal experts have already torn Nunes' Section 230 arguments to shreds. (His lawyer either does not understand the law or is willfully misrepresenting it.)

Again, Nunes will inevitably lose. But Section 230 has come under attack in recent years from other lawmakers as well. Congress already carved out an exception to Section 230 last year, when it passed the Stop Enabling Sex Traffickers Act (SESTA), which was supposedly meant to combat online sex trafficking but met with vehement opposition from both free speech experts and sex workers' rights advocates.

Tech companies now must proactively take down posts that touch on sex work, a policy that has led to numerous examples of heavy-handed censorship, including against people the law intended to protect. As soon as SESTA was passed, in early 2018, websites like Google, Reddit, and Twitter began censoring posts that might bump up against the law, "not because... the sites actually were promoting ads for prostitutes," as Vox's Aja Romano put it, "but because policing them against the outside possibility that they might was just too hard."

Laugh at Nunes and his farcical lawsuit all you want. Just know that many of the wild theories to which he ascribes are increasingly held by pundits and lawmakers. These serious efforts to undermine online free speech deserve our ridicule, but also our vigilance.