After the Republicans lost the House of Representatives in November, my colleague, David Taub, asked Fresno State political science professor Thomas Holyoke how the election results might affect Rep. Devin Nunes’ high profile.
“Since he no longer has the chairmanship of the intelligence committee for a platform, he will find other ways to get out a message, a message most likely in defense of the president,” Holyoke said. “Fox News is a great place for him to do that, so I expect to see even more of him. There is not much more a member of the House minority party can do.”
One of those other ways is suing media companies for large amounts of money and making sure Fox News is alerted first.
Here are six essential things you should know about Nunes’ $250 million lawsuit against Twitter, two anonymous Twitter accounts, and political consultant Liz Mair; and his $150 million lawsuit against The Fresno Bee and McClatchy Newspapers:
1. Why He Sued
Nunes loves attention as much as he hates meeting with constituents who aren’t major campaign donors. He loves public fights as much as he hates held to account by The Fresno Bee. And he loves carrying Donald Trump’s political water as much as he hates environmentalists.
Plus, Nunes gets to talk “conspiracies” with Sean Hannity.
In a Fox News interview, former independent counsel Ken Starr praised Nunes for suiting Twitter.
“They can censor. They proudly say we must censor,” Starr said of social media companies. “But are they censoring in a fair-minded way?”
Starr called the lawsuit “a terrific method for getting real accountability in a way that is going to be hard to do for Congress.” He also speculated that Nunes’ goal is to force Twitter into depositions where its methods for determining what’s fit and unfit would be “illuminated.”
2. The High Bar for Proving Defamation
Lawyer Jeffrey G. Purvis is the James K. and Carol Sellars Herbert Professor of Constitutional Law at San Joaquin College of Law. In an interview last week, he explained the legal obstacles facing Nunes.
Purvis said that “it’s extremely rare for a public figure to win a defamation lawsuit, where the defendant is engaged in information gathering and publishes that information.”
The standard for a public figure to prove defamation against a news organization is high, he said. Public figures must show that the defendant published “a falsehood that injures their reputation. They have to show that the defendant knew what was printed was false and they were reckless about the falsity.”
Purvis also said the fact that Nunes didn’t respond to The Bee’s requests for interviews before publication of the story cited in his lawsuit — “A yacht, cocaine, prostitutes: Winery partly owned by Nunes sued after fundraiser event” — “would undercut his defamation lawsuit.”
Additionally, The Bee says Nunes has never asked for a correction.
3. The Famous Falwell Case
Nunes’ defamation lawsuit against Twitter and Mair also cites the parody accounts (@DevinNunesMom and (@DevinCow). Twitter has since suspended the @DevinNunesMom account.
Purvis pointed me to Hustler Magazine, Inc. v. Falwell, which involved a parody ad published by the skin magazine. It portrayed the Rev. Jerry Falwell as engaging in a drunken sex act with his mother in an outhouse.
At trial, the jury rejected Falwell’s claim for libel but ruled he had suffered emotional distress. The jury awarded him $150,000 in compensatory and punitive damages.
The case eventually reached the U.S. Supreme Court, which ruled 8-0 in Hustler’s favor and struck down the award.
Chief Justice William Rehnquist, an appointee of President Nixon, wrote the opinion, concluding:
“This claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here. The judgment of the Court of Appeals is accordingly Reversed.”
4. Nunes’ Claim of Twitter ‘Shadow-Banning’ Conservatives
In his lawsuit against Twitter, Nunes accuses it of potentially impacting the 2018 midterm election results by “shadow-banning” conservatives. Good luck proving that.
One, Nunes raised many millions of dollars and won his race. In fact, his campaign account ended 2018 in excellent financial condition, with no debt and $4.2 million cash on hand.
Two, nothing on Twitter appears to have hurt his conservative credentials or fundraising capabilities. In fact, he raised $12.6 million during the 2017-18 campaign cycle for his account. That compares to the $2.16 million average raised by House members for the 2018 campaign, according to opensecrets.org.
“Twitter is a machine,” Nunes’ personal attorney, Steven Scott 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.”
Appears to me that Tammany Hall, if anything, has helped Nunes’ standing with donors. He only raised $2.46 million in the 2016 election cycle — and that figure was his all-time high at the time.
Three, President Donald J. Trump is the leader of the Republican Party and of today’s conservative movement. Trump’s two Twitter accounts (@realDonaldTrump, @POTUS) totaled 85.3 million followers as of Monday morning. He has sent out about 46,600 tweets.
While not nearly as prolific on Twitter as the president, Nunes is active on the social media giant, too. And he appears to have no trouble getting his message out. His personal account, @DevinGNunes, has tweeted 2,067 times and has 437,000 followers. His congressional account, @RepDevinNunes, shows 32,400 followers and 159 tweets.
— Devin Nunes (@DevinGNunes) April 15, 2019
Twitter isn’t shadow-banning Nunes. Instead, it’s providing a free platform for the congressman to promote his views.
5. Nunes’ Attorney Once Was Suspended, Now He Seeks Millions in Lawsuits
Steven Scott Biss has had an interesting career. His LinkedIn profile indicates he graduated from Princeton University with a bachelor’s degree in American history and military intelligence. He got his law degree from the University of Richmond School of Law.
In October 2008, the Virginia State Bar suspended Biss a year and one day.
“In a corporate and securities matter, he violated professional rules that govern competence, scope of representation, and misconduct that involves deliberately wrongful acts that reflect adversely on his fitness to practice,” the bar said.
While Biss was serving that suspension, the Virginia State Bar additionally suspended him for 30 days effective the first day of 2010 for representing himself as an attorney while on suspension.
According to bar records, he presently is a lawyer in good standing.
Biss also represents Dallas area investor Ed Butowsky. Last summer Butowsky filed a $57 million defamation lawsuit against NPR and its media reporter, David Folkenflik, for a series of stories in 2017, including one headlined “The Man Behind The Scenes In Fox News’ Discredited Seth Rich Story.”
Folkenflik reported that a federal lawsuit alleged that Butowsky had worked with the White House to influence a retracted Fox News report. The Fox Report centered on conspiracy theories about murdered Democratic National Committee staffer Seth Rich.
The case isn’t resolved.
6. Is Your Skin Thin? Then Stay Out of Politics
One Biss case echoing Nunes’ lawsuit against The Bee was a $1.35 million defamation lawsuit on behalf of a Virginia county supervisor against a weekly publication for a series of articles.
The judge threw out the case before it went to the jury.
Before the initial story’s publication, the reporter sent the supervisor 12 specific questions laying out what he had turned up. Instead of answering the questions, the supervisor responded with a statement that the weekly published with the article.
The judge noted that this sequence of events weighed in his decision.
And he told Biss’ client: As a public official, “you’re required to have a thicker skin.”
Editor’s Note: This column was corrected at 12:45 p.m. Tuesday to reflect that Nunes sued Twitter, two parody accounts, and Mair.