Twitter Back in Court to Urge Dismissal of Nunes Defamation Case

Rep. Devin Nunes, R-Calif., pauses while meeting with reporters outside the White House in March 2017. (AP Photo/Pablo Martinez Monsivais, File)

RICHMOND, Va. (CN) — Pointing to a law that shields internet platforms from legal action for content posted by third-party users, Twitter asked a Virginia judge for a second time Friday to dismiss defamation claims brought against the social media giant by Republican Congressman Devin Nunes of California.

One of six such cases filed around the country by Nunes, the dispute in Henrico County Circuit Court involves tweets by a Republican strategist and two anonymous parody accounts called “Devin Nunes’ Mom” and “Devin Nunes’ Cow.” 

Clad in a face mask due to the ongoing coronavirus outbreak, Washington, D.C.-based Wilmer Hale partner Patrick J. Carome argued in the socially distanced courtroom that Twitter is immune from the congressman’s claims because of Section 230 of the Communications Decency Act. Passed by Congress in 1996, the federal law says online platforms cannot be held liable for the content users post while also empowering them to moderate content as needed. 

“We don’t need to get into [this case] beyond Section 230 because this is right in its bullseye,” Carome said, noting Twitter played no role in the crafting of the content posted by consultant Liz Mair, @DevinCow and the since-deleted @DevinMom.

He said hundreds of courts have sided with sites like Twitter in similar disputes. Carome himself famously argued the appeals court case that helped establish the law’s core principles around the country. 

In Zeran v. America Online Inc., decided in 1997 at the Fourth Circuit, the court found online outlets act as bulletin boards and provide space for users to post, and while they have the capacity – and incentive – to remove posts, that does not make them part of the publishing process and therefore liable. 

“Section 230 protects platforms and allows for review,” Carome said. 

But Charlottesville attorney Stephen Biss, who is representing Nunes in several defamation cases, pointed to that capacity for review as justification for Twitter being considered a publisher. If the company is picking and choosing what content can be posted on its site, he said, then it’s putting its fingerprints on the content.

“[Twitter] has changed the face of defamation,” he said, adding the world has never seen a speech platform quite like it. “Your reputation can be destroyed in an instant.” 

Biss said Twitter’s use of algorithms that help push certain content to the top of users’ feeds also shows its role as a creator. Even worse, he argued, is when that algorithm pushes defamatory speech while suppressing the victim of that speech. 

The social media giant is “materially contributing to the defamation,” he argued.  

Biss also accused the platform of holding a political bias, specifically against Nunes, President Donald Trump and other conservatives. He pointed to Twitter adding a fact check to recent Trump tweets as an example of the company making its “political viewpoints known.” 

But Henrico County Judge John Marshall, who allowed the case to stay in the suburban central Virginia court last fall despite tenuous connections for both the congressman and the company, pushed back on Biss’ concerns about political bias. 

“[The law] does not say you have to be neutral,” the judge said from the bench. “What if the site only allowed conservative voices?” 

Marshall also pointed to Trump’s recent executive order directing a review of Section 230 and the immunity it gives to internet companies.

“Doesn’t the existence of the executive order, which isn’t law, suggest the law can do what Twitter says it can?” the judge opined. 

Biss continued to argue the site must be a “passive conduit” in order to be protected, but Carome said another case proved him wrong. 

The 2009 case Nemet Chevrolet v. Consumeraffairs.com involved the defendant website existing for the sole purpose of hosting negative reviews on products and businesses. Monetizing the model involved linking those who were burned by reviewed companies to lawyers collecting plaintiffs for class action lawsuits. The Fourth Circuit ruled the site was protected by the Communications Decency Act.

“If you write a negative review, you might get money by joining a class action,” Carome said, before returning to Biss’ theory that Twitter’s alleged bias means it should not be shielded by the law. “Even if he’s 100% correct [about bias], that doesn’t make a whit of difference.”

But much like the first hearing in the case, Judge Marshall expressed some doubts about Twitter’s arguments as well. He pointed to a procedural issue involving the company’s failure to respond to numerous offenses Nunes alleges the company committed, ranging from shadow banning conservatives to acts of illegal defamation. 

But Carome argued that procedurally, Twitter didn’t have to answer questions at this point in the case, while Marshall said state law might suggest otherwise.

The judge also expressed discontent at Twitter’s efforts to dismiss the case so early. 

“The Supreme Court of Virginia doesn’t want us to short-circuit cases. I’m reminded by lawyers of it frequently,” he said to some chuckles in the court. 

Biss also pushed for the identities of the parody accounts’ users to be released to Nunes in discovery. Marshall, however, seemed to be in agreement with Twitter on that being unavailable for now.

Carome listed the steps the congressman could take to get the identities revealed. They include filing subpoenas in Virginia and California and going through numerous steps to overcome each state’s unmasking laws.

“I don’t know why Nunes has been sitting on his hands,” Twitter’s lawyer said, pointing to the congressman’s original requests for the identities when the complaint was first filed over a year ago. “He’s wasted a lot of time.” 

Marshall didn’t rule from the bench Friday but said he would offer answers to some of the motions before June 26.

BRAD KUTNER

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