HENRICO, Va. (CN) – Congressman Devin Nunes resisted an attempt to throw out his defamation case against Twitter, arguing through his lawyer Friday that pervasive parody accounts about Nunes are like a fire next door that is seeping smoke into your house and choking a newborn baby.
Nunes, who did not attend the hearing in Henrico County Circuit Court in person, brought the lawsuit against Twitter this past March. Taking aim at the accounts “Devin Nunes’ Mom” and “Devin Nunes’ Cow,” as well as political strategist Liz Mair, the California Republican said the insults against him, in 280 characters or less, caused broad damage to his character and also led him to win re-election by a smaller percentage than usual.
Without delving into the broad First Amendment issues that Nunes’ suit implicates — Twitter’s ability to moderate user speech — today’s hearing turned entirely on where the suit belongs.
Though he admitted he hadn’t heard of Nunes until the case was assigned to him, Judge John Marshall sat mostly quiet during more than three hours of arguments, which ended without a ruling.
Marshall said the parties can expect a ruling in the next week to 10 days, emphasizing in court today that he is focused on the split outcome of a recent Fairfax County case involving movie star Johnny Depp and his ex-wife actor Amber Heard.
In that case, Chief Judge Bruce White denied Heard’s motion to move Depp’s defamation suit to California, saying the Virginia Supreme Court has not yet addressed how harm is decided in “situations where defamatory content is published simultaneously in multiple jurisdictions.”
Marshall said decisions by two different federal judges have led to split opinions on the issue he’s now facing. “This is a tie,” Marshall said.
Arguing for Twitter this morning, Wilmer Hale attorney Patrick Carome, noted that everything about the case implicates California, from the Twitter headquarters to Nunes himself and the district he represents.
“[This case] is no more at home in Virginia than in Montana or Alabama,” Carome said.
Carome also stressed that Nunes agreed to Twitter’s terms of service, which require lawsuits against the company to be filed in California, when he created his account.
“Nunes doesn’t pay for the use of this service,” he said. “Twitter couldn’t give away the service for free if they didn’t make sure they were [legally] efficient.”
The congressman’s attorney, Charlottesville-based Stephen Biss, pointed out meanwhile that the case is not about contracts. Complaining as well that the court is already discussing a motion to dismiss before allowing discovery, Biss noted that Twitter and Mair have so far refused to submit to requests that might provide insight into the company’s business dealings in Virginia, as well as identify the people behind of the parody accounts.
“The court will not know [these things] because Twitter will not tell me,” Biss said, likening the lack of discovery to putting “blinders” on the court.
Carome balked at the congressman’s demands. “It’s the most overbroad discovery request I’ve seen in my 35 years of practicing law,” the lawyer said.
Nunes described Mair as a citizen of Virginia when he filed suit, but Mair’s attorney Joshua Matz, of counsel at Gupta Wessler and Kaplan & Co., noted Friday that his client now lives in Connecticut.
Voicing exasperation at the congressman’s efforts to link his client to the suburban Richmond court, Matz stressed that Nunes must be experiencing harm in Virginia for the case to stay there.
As for whether Mair’s posts about Nunes are defamatory, Matz said he is prepared to defend her claims about Nunes running out of town hall meetings and other dealings with private and nonprofit businesses he’s linked to.
“[Mair] was commenting on how good a job he was doing and what his constituents thought,” he said. “Nobody cares about [Nunes’] reputation in Virginia.”
Both of the parody accounts Nunes is challenging worked to inform followers about Friday’s court date, and rumors about “mooing” and ringing cowbells in the courtroom were swirling online. But only about 20 people showed up to protest. Some wore shirts featuring images of cows below the words “Be Butter,” a nod to first lady Melina Trump’s campaign against online bullying. They also had a card signed by 22 people thanking the NunesCow account for their efforts countering the congressman.
Though Nunes was a no-show, the conservative publication Brietbart quoted sources close to Nunes as saying the congressman would be present. Nunes and his attorney did not return requests for comment and have offered no explanation for why they filed the $250 million suit in Virginia.
Defamation lawyer Lee E. Berlik floated a theory in an interview.
“It seems logical that the most likely reason has to do with difference between the state’s Anti-SLAPP laws,” Berlik said, referring to laws usually protect defendants in speech-related cases filed by those in power. “It’s much more likely a case like this would get dismissed in California.”
On the subject of discovery, Berlik said the ball is in the judge’s court.
“If he thinks there’s a reasonable chance that allowing some reasonable discovery could lead to his decision one way or another, he might do that,” Berlik said of Marshall.