Nunes faces tough odds with Twitter lawsuit

Rep. Devin NunesDevin Gerald Nunes10 top Republicans who continue to deny the undeniable A Republican Watergate veteran's perspective on a Trump impeachment Meet the lawyer at center of whistleblower case: 'It is an everyday adventure' MORE (R-Calif.) faces an uphill battle in his $250 million lawsuit against Twitter and three of its users, legal experts say. 

The lawsuit from the top Republican on the House Intelligence Committee and a staunch ally of President TrumpDonald John TrumpPelosi arrives in Jordan with bipartisan congressional delegation Trump says his Doral resort will no longer host G-7 after backlash CNN's Anderson Cooper mocks WH press secretary over Fox News interview MORE, marks the first major legal action by a member of Congress over alleged anti-conservative bias by tech companies.

But Nunes' claims that Twitter is censoring conservatives and allowing users to defame him, will need to overcome a number of tough legal obstacles to see success, including the First Amendment, robust legal protections for internet companies, and court rulings that have made it harder for public figures to claim defamation.

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Lawyers who spoke to The Hill predicted the Virginia state court where the case was filed Monday will likely dismiss the lawsuit, describing the case as "frivolous" and even "offensive" to the legal process.

Nunes is suing two parody Twitter accounts, "Devin Nunes’ Mom” and “Devin Nunes’ Cow,” and Republican communications consultant Liz Mair for allegedly defaming him on Twitter.  

He says Twitter itself should shoulder some of the responsibility, accusing the social media company of facilitating and encouraging the defamation as part of a larger conspiracy to interfere in his 2018 reelection campaign, according to the lawsuit. 

"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," the lawsuit alleges.  

Twitter declined to comment. Steven Biss, Nunes' lawyer, also did not respond to The Hill's request for comment.

Mair, whose tweets are cited throughout the lawsuit, said she is working on a response to Nunes.  

"A formal response to Rep. Nunes’ pleading is forthcoming but suffice it to say that I have a very different view on the applicable law (including the First Amendment) than Rep. Nunes," Mair said. 

The lawsuit quickly grabbed headlines and brought new attention to the controversy over alleged bias. Trump a day after the suit was filed took to Twitter to accuse the company and other tech giants of being "on the side of the Radical Left Democrats."

Legal experts, though, say one of the lawsuit's most formidable challenges will stem from the difficulties in claiming defamation against a public figure.

The courts demand a higher standard of evidence when it comes to defamation charges from public officials, Jessica Levinson, a politics and law professor at Loyola Law School, told The Hill. Under the First Amendment, citizens are allowed to speak out against public figures, particularly lawmakers, even if that speech is considered insulting or crude.

"The idea is that public officials avail themselves in a public forum, so there’s some assumption of the risk that they might be criticized and nasty things might be said about them, even potentially misleading things," Levinson said. 

"Also, they have access to the megaphone, so they can try to correct the record," she added.

Nunes must show the defendants intentionally and maliciously made false statements about him in order to prove defamation.

"Twitter allowed @DevinNunesMom to post hundreds of egregiously false, defamatory, insulting, abusive, hateful, scandalous and vile statements about Nunes that without question violated Twitter’s Terms of Service and Rules," the lawsuit states.

The tweets from @DevinNunesMom, @DevinCow and Mair cited in the lawsuit could likely be interpreted as opinions or parody, both of which are protected forms of speech, Kendra Albert, a clinical instructional fellow and lecturer on law at Harvard Law School, told The Hill.

Tweets from "Devin Nunes' Cow" cited in the lawsuit called Nunes a "treasonous cowpoke" and "udder-ly worthless." "Devin Nunes' Mom" used explicit language in tweets accusing Nunes of obstructing a federal investigation.

Those comments are likely a reference to the scrutiny Nunes faced last year over his handling of the House Intelligence Committee's investigation into Russian election interference. Nunes, the chairman at the time, was forced to step aside from the investigation pending an ethics inquiry into his handling of classified material. 

The lawsuit must also contend with a federal law, Section 230 of the Communications Decency Act, which protects tech companies from being legally liable for what its users post.

"It is overwhelmingly obvious that Twitter is an online service provider that enjoys section 230 immunity from liability for third-party posts," Heather Whitney, a doctoral candidate at New York University, told The Hill. "As a result, claims that Twitter was negligent for allowing purportedly libelous tweets is a non-starter." 

That law is at the center of its own controversy. Supporters credit its protections for tech companies with allowing the internet to flourish. But Republicans have increasingly taken aim at Section 230, with Sen. Josh HawleyJoshua (Josh) David HawleyUS ban on China tech giant faces uncertainty a month out Trump judicial nominee delayed amid GOP pushback GOP cautions Graham against hauling Biden before Senate MORE (R-Miss.) has called it a "sweetheart deal" for tech companies, which gives them protections that publications, for example, don't have.

"This lawsuit actually is a nice showcase for why Section 230 immunity is badly needed by these information content platforms," Jane Bambauer, a law professor at the University of Arizona focused on privacy law, told The Hill.    

Albert called the lawsuit the "bread and butter of what the CDA 230 was meant to deal with." 

Bambauer also said she is "concerned" about Nunes' demand that Twitter reveal the identity of the two anonymous Twitter users. She said "unmasking" orders can often result in harassment and threats at the people whose identities are uncovered. 

"It is in some ways a punishment so that a person is identified and then can themselves be subject to censure and negative attention," Baumbauer said, adding that she doesn't believe the lawsuit provides enough evidence to warrant an "umasking." 

The industry has long denied claims of censorship and bias, in particular allegations that they "shadow-ban" or hide posts from conservatives. Tech companies note that there is little evidence to back those charges.

Nunes's lawsuit marked the latest escalation in what has been a heated fight between tech companies and conservatives.

The lawsuit also sparked new interest in one of the accounts. On Wednesday, "Devin Nunes' Cow" had surpassed Nunes himself in Twitter followers, with the parody account boasting around 600,000 compared to Nunes' 397,000. 

Regardless of the outcome of Nunes' lawsuit, the fight over bias is likely to stay.

"The bottom line of the case is that its legal merits barely matter, because the point is political theater," Daphne Keller, the director of intermediary liability at the Stanford Center for Internet and Society, told The Hill.

"As theater, I suspect it will be quite successful."