How strong is Rep. Nunes' case against Twitter?
GOP Rep. Devin Nunes files a $250 million lawsuit against Twitter and some of its users for alleged bias against conservatives. Former independent counsel Ken Starr breaks down the case.
California GOP Rep. Devin Nunes filed a major lawsuit seeking $250 million in compensatory damages and $350,000 in punitive damages against Twitter and a handful of its users on Monday, accusing the social media site of "shadow-banning conservatives" to secretly hide their posts, systematically censoring opposing viewpoints, and totally "ignoring" lawful complaints of repeated abusive behavior.
In a complaint filed in Virginia state court on Monday, obtained by Fox News, Nunes claimed Twitter wanted to derail his work on the House Intelligence Committee, which he chaired until 2019, as he looked into alleged and apparent surveillance abuses by the government. Nunes said Twitter was guilty of "knowingly hosting and monetizing content that is clearly abusive, hateful and defamatory – providing both a voice and financial incentive to the defamers – thereby facilitating defamation on its platform."
The lawsuit alleged defamation, conspiracy and negligence, as well as violations of the state's prohibition against "insulting words" -- effectively fighting words that tend towards "violence and breach of the peace." The complaint sought not only damages, but also an injunction compelling Twitter to turn over the identities behind numerous accounts he said harassed and defamed him.
“Twitter is a machine," Nunes' personal attorney, Steven S. Biss, told Fox News. "It is a modern-day Tammany Hall. Congressman Nunes intends to hold Twitter fully accountable for its abusive behavior and misconduct.”
Although federal law ordinarily exempts services like Twitter from defamation liability at all levels, Nunes' suit said the platform has taken such an active role in curating and banning content -- as opposed to merely hosting it -- that it should face liability like any other organization that defames.
"Twitter created and developed the content at issue in this case by transforming false accusations of criminal conduct, imputed wrongdoing, dishonesty and lack of integrity into a publicly available commodity used by unscrupulous political operatives and their donor/clients as a weapon," Nunes' legal team wrote. "Twitter is 'responsible' for the development of offensive content on its platform because it in some way specifically encourages development of what is offensive about the content."
The lawsuit is separate from Nunes' work on the House Intelligence Committee, where he is now the ranking member. To prove his defamation charge, Nunes, as a public figure, would typically need to meet a higher standard than a private individual -- essentially that the defendants acted intentionally or recklessly with respect to the provable falsity of their posts, rather than than merely negligently.
Twitter CEO Jack Dorsey testifying before the House Energy and Commerce Committee hearing on Twitter's algorithms and content monitoring in September 2018. (REUTERS/Chris Wattie, File)
The complaint also maintains in its action for negligence, however, that Twitter has a duty to exercise reasonable care to avoid hosting outwardly defamatory content because of its increasingly important role in current affairs.
"Access to Twitter is essential for meaningful participation in modern-day American Democracy," the complaint stated. "A candidate without Twitter is a losing candidate. The ability to use Twitter is a vital part of modern citizenship. A presence on Twitter is essential for an individual to run for office or engage in any level of political organizing in modern America. That is because Twitter is not merely a website: it is the modern town square. Twitter is equivalent to the private owner of a public forum who has fully opened its property to the general public for purposes of permitting the public’s free expression and debate. That is, in fact, what Twitter has always claimed to be."
Twitter CEO Jack Dorsey has testified previously before Congress that his platform is a kind of "digital public square," although he has insisted that Twitter, as a private company, retains the right to censor speech.
In large part because of Twitter's actions, Nunes "endured an orchestrated defamation campaign of stunning breadth and scope, one that no human being should ever have to bear and suffer in their whole life" in the past year, according to the complaint.
"Twitter is a machine. It is a modern-day Tammany Hall."
The complaint also named specific Twitter accounts that spread allegedly defamatory material about Nunes. One defendant, identified as "Liz" Mair, purportedly published tweets that "implied that Nunes colluded with prostitutes and cocaine addicts, that Nunes does cocaine, and that Nunes was involved in a 'Russian money laundering front,'" according to Nunes' lawyers.
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The complaint quoted a June 22, 2018 tweet from Mair that implied Nunes invested in a winery that "allegedly used underage hookers to solicit investment."
Mair did not respond to Fox News' request for comment. Fox News has also reached out to Twitter for comment on the lawsuit, and was told only that "we're not commenting at this time." (The lawsuit seeks joint and several liability, which permits plaintiffs to recover from one defendant, and then leaves the defendants to sort out what each owes.)
The complaint also named "Devin Nunes’ Mom," "a person who, with Twitter’s consent, hijacked Nunes’ name, falsely impersonated Nunes’ mother, and created and maintained an account on Twitter (@DevinNunesMom) for the sole purpose of attacking, defaming, disparaging and demeaning Nunes."
Nunes lawyers' wrote, "In her endless barrage of tweets, Devin Nunes’ Mom maliciously attacked every aspect of Nunes’ character, honesty, integrity, ethics and fitness to perform his duties as a United States Congressman."
One tweet from the account, cited by the complaint, contained a crude drawing of Russian President Vladimir Putin, President Trump, and Nunes in a physically linked, symbiotic arrangement like the characters in the horror film "The Human Centipede (First Sequence)."
The complaint goes to allege that the account gave factually false and defamatory information, mixed in with impermissibly "insulting" fighting words.
FILE - This April 26, 2017, file photo shows the Twitter app icon on a mobile phone in Philadelphia. (AP Photo/Matt Rourke, File)
"Devin Nunes’ Mom," the complaint alleges, "stated that Nunes had turned out worse than Jacob Wohl; falsely accused Nunes of being a racist, having 'white supremist friends' and distributing 'disturbing inflammatory racial propaganda'; falsely accused Nunes of putting up a 'Fake News MAGA' sign outside a Texas Holocaust museum; falsely stated that Nunes would probably join the 'Proud Boys', if it weren’t for that unfortunate 'nomasturbating’ rule'; disparagingly called him a 'presidential fluffer and swamp rat'; falsely stated that Nunes had brought 'shame' to his family; repeatedly accused Nunes of the crime of treason, compared him to Benedict Arnold, and called him a 'traitor.'"
As of Monday afternoon, the @DevinNunesMom account was suspended by Twitter when Fox News tried to access it. The complaint stated that "Twitter only suspended the account in 2019 after Nunes’ real mother, Toni Dian Nunes, complained. ... Twitter permitted @DevinNunesMom, for instance, to tweet and retweet with impunity throughout 2018."
However, according to the complaint, "Twitter did nothing to investigate or review the defamation that appeared in plain view on its platform. Twitter consciously allowed the defamation of Nunes to continue" despite reports and purported reviews by Twitter's content moderators.
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"As part of its agenda to squelch Nunes’ voice, cause him extreme pain and suffering, influence the 2018 Congressional election, and distract, intimidate and interfere with Nunes’ investigation into corruption and Russian involvement in the 2016 Presidential Election, Twitter did absolutely nothing," the complaint stated.
Another account named as a defendant was "Devin Nunes' Cow," or @DevinCow, which purportedly called Nunes a "treasonous cowpoke" and an "udder-ly worthless" criminal.
Calif. GOP Rep. Devin Nunes has sued Twitter for over $250 million. (AP, File)
The @DevinNunesMom account also “falsely stated that Nunes was unfit to run the House Permanent Select Committee on Intelligence, and “falsely stated that Nunes was ‘voted ‘Most Likely to Commit Treason’ in high school,'" the complaint states.
The timing and substance of the tweets, according to Nunes' team, suggested that Mair was working jointly with @DevinCow and @DevinNunesMom accounts. Mair's LinkedIn profile, the complaint notes, contains the boast: "What do I do for [my] clients? Anonymously smear their opposition on the Internet."
In response to the lawsuit, the @DevinCow account -- which was still active as of Monday evening -- posted numerous tweets mocking Nunes. "I’m not quitting my day job," one read.
The complaint also charged that Twitter "shadow-banned" Nunes in 2018 "in order to restrict his free speech and to amplify the abusive and hateful content published and republished by Mair, Devin Nunes’ Mom," and other accounts. A "shadow-banned" user can see his or her own tweets, but others may not be able to access them easily, or at all -- making it difficult for the shadow-banned user to even realize his account is being censored.
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"The shadow-banning was intentional," the complaint continued. "It was calculated to interfere with and influence the federal election and interfere with Nunes’ ongoing investigation as a member of the House Permanent Select Committee on Intelligence. Twitter’s actions affected the election results. The combination of the shadow-ban and Twitter’s refusal to enforce its Terms and Rules in the face of clear and present abuse and hateful conduct caused Nunes to lose support amongst voters."
The lawsuit cited numerous articles, including a Vice News story from last summer, reporting that Twitter had, for a time, downplayed the visibility of prominent conservatives in its search results. In a blog post last year, Twitter denied shadow-banning anyone based on political beliefs, and said all users' tweets are always accessible from their profiles.
However, the site did acknowledge that tweets from "bad faith users" would appear lower in search results, when other users attempt to look for specific terms using Twitter's search functionality.
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On Monday, Sean Davis, the managing editor of The Federalist, wrote that he recently had been an apparent victim of a form of shadow-banning on Twitter -- and said that contrary to Twitter's claims, other users were unable to see a specific tweet even when they were on his profile page.
"Twitter gave me no notice or explanation when it shadowbanned one of my Tweets about Russian interference in our elections," Davis wrote. "But what's worse is how Twitter apparently gives its users the fraudulent impression that their tweets, which Twitter secretly bans, are still public."
Davis charged that Twitter "claimed in its e-mail to me that it 'mistakenly remove[d]' a completely anodyne tweet about public congressional testimony, but didn't explain why it left the tweet--and metrics showing no engagement--visible to me when logged in. Is conning users a bug, or a feature?"
Dorsey, the Twitter CEO, acknowledged on Joe Rogan's podcast earlier this month that the platform has been too aggressive in banning certain accounts.
Vijaya Gadde, Twitter's chief legal officer, said that the company would learn from its mistakes.
"Where we draw a line is when people use their voice and their platform to use their voice to silence someone else on the platform," Gadde said on the podcast. "It’s rare for us to outright ban someone without warning."
