Watchdog Slams Order Allowing Nunes to Sue Twitter in Virginia

Ranking Member Rep. Devin Nunes, R-Calif., questions Acting Director of National Intelligence Joseph Maguire as he testifies before the House Intelligence Committee on Sept. 26, 2019. (AP Photo/Pablo Martinez Monsivais)

RICHMOND, Va. (CN) – A government watchdog group blasted a ruling that will keep a defamation lawsuit filed by California Congressman Devin Nunes against Twitter and several users in Virginia state court, warning it could chill free speech.

“It seems to say anybody from anywhere who’s defamed on the internet, on platforms that can be accessed anywhere in the country, can be sued and sue anywhere in the country even if it has nothing to do with the specific jurisdiction,” Paul Levy, a lawyer with Public Citizen Litigation Group, said in a phone interview. “Injury in Virginia is enough.”

Levy said federal courts had been moving the other way on the issue of personal jurisdiction in online defamation cases, and said he had previously expressed concerns about Nunes’s efforts to bring the defamation case in suburban Richmond court.

He pointed to Virginia’s weaker strategic lawsuit against public participation, or anti-SLAPP, laws, which makes it more costly to fight against defamation claims and can lead to chilled speech.

Nunes filed the complaint in Henrico County Circuit Court in March against Twitter, the anonymous parody accounts “Devin Nunes’ Mom” and “Devin Nunes’ Cow,” and political consultant Liz Mair.

The Republican congressman for California’s 22nd District claimed the defendants had taken to the internet to decry his policies and loyalty to President Donald Trump in a defamatory way and that the social media giant is “knowingly hosting and monetizing content that is clearly abusive, hateful and defamatory.”

Henrico County Judge John Marshall said in his Oct. 2 ruling that the posts were made and published in Virginia and the cause of action for defamation arose in Virginia. He also pointed to Twitter’s registered agent in the state, as well as the number of users that live there and the revenue the company pulls in locally as reasons to keep the case in his court.

“Since any internet platform is accessible anywhere, including Virginia, that means, I suppose, a Virginian could be sued in Alaska and an Alaskan can be sued in Virginia,” Levy said Monday night.

Even though the case is still in its early stages, Public Citizen fears the ruling could have a chilling effect on other opponents of the congressman.

“Now, anybody, anywhere in the country, knows that if you criticize Devin Nunes, you can be sued in Virginia,” Levy said.

Twitter had argued the speech its users is protected by the First Amendment and any lawsuit against the company should be filed in California, where it is based.

Venue selection is also part of the company’s terms of service, but Judge Marshall found that Nunes’ claims stem from the defendants’ use of Twitter, not his own.

“The use of Twitter by the defendants to post allegedly defamatory statements cannot subject the plaintiff to the terms of use agreement and the forum selection clause as it would not subject a plaintiff who did not have a Twitter account to the terms of use agreement,” the ruling states.

According to defamation lawyer Lee Berlik, state law requires the case to be decided on the merits before Twitter or the other defendants could appeal the issue to the Virginia Supreme Court.

Until then, discovery in the case will move forward.

Attempts to reach lawyers for Nunes were not returned. Requests for comment from Twitter’s lawyers at the Washington, D.C.-based Wilmer Hale were referred to the company’s press department, which were not returned by press time.

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