In a Henrico County Circuit Court hearing on Friday, an attorney for Rep. Devin Nunes, R-Calif., suggested that someone in the courtroom could be behind one of the anonymous Twitter accounts dedicated to smearing his client.
About 20 people, more than half of the audience at Friday’s hearing, wore T-shirts with cows, carried stuffed toy cows and signed a card addressed to “Devin Nunes’ Cow” as Judge John Marshall heard preliminary arguments in a lawsuit against Twitter, two anonymous accounts and a Republican strategist who is accused of coordinating a smear campaign against the California congressman.
Some of the observers said they decided to attend Friday’s hearing after learning about it through one of the Twitter accounts. They said they found the hearing entertaining and informative, but worry that the lawsuit could chill irreverent political speech online if Nunes prevails.
The lawsuit centers on a series of provocative and withering tweets criticizing the congressman and alleges the social media company’s caretakers discriminate against conservative commentators and politicians, allowing anonymous users to defame and slander them with impunity while “shadow banning” conservative accounts by hiding their tweets from other users without notification.
“How do we know [Devin Nunes’] cow and mom aren’t in Henrico? They won’t tell us,” said Nunes’ lawyer Steven Biss, referring to the two Twitter accounts named in the lawsuit.
The lawsuit, and a similar case Nunes filed in Albemarle County against The McClatchy Co. — which operates several newspapers across the nation and published a story containing lurid allegations about a Napa Valley-based winery Nunes partly owns — prompted critics to question whether the actions were filed in Virginia to circumvent more robust California statutes intended to prevent censorship or intimidation through high litigation costs.
McClatchy does not operate any newspapers in Virginia. Henrico County does not appear to have any direct connections to Nunes or the defendants.
While Nunes and Twitter are both based in California, Biss, who is based in Charlottesville, said Republican strategist Liz Mair had sought to defame the congressman on behalf of her clients during his 2018 re-election campaign.
The lawsuit specifically points to one of Mair’s tweets referencing a Fresno Bee newspaper story as one of her “most egregious and defamatory “ comments about Nunes.
In response to a tweet by Nunes, Mair, who then lived in Arlington County, wrote on June 22, 2018: “To be fair, I think the @fresnobee writing up your investment in a winery that allegedly used underage hookers to solicit investment --an allegation you’ve known about for years, during which you’ve stayed invested in it, I might add — did surprise you.”
The lawsuit also claims that the accounts @Devin NunesMom and @Devin Cow attacked and disparaged him with false claims, which harmed his re-election campaign. Twitter has suspended the @Devin NunesMom account.
Nunes, a former chairman of the House Intelligence Committee, won re-election last November against Democratic challenger Andrew Janz by about 5 points.
Several tweets attached to the complaint centered on Nunes’ involvement in a House investigation into Russian meddling in the 2016 presidential election, as well as the Fresno Bee article about Nunes’ stake in the Alpha Omega winery.
“The Twitter attacks on Nunes were pre-planned, calculated, orchestrated and undertaken by multiple individuals acting in concert over a continuous period of time exceeding a year,” the lawsuit states. “The full scope of the conspiracy, including the names of all participants and the level of involvement of donors and members of the Democratic Party, is unknown at this time and will be the subject of discovery in this action.”
On her LinkedIn account, Mair — a former strategist to Republican politicians such as Carly Fiorina, former Wisconsin Gov. Scott Walker and Sen. Rand Paul of Kentucky — professes to “anonymously smear” her client’s opponents online. An outspoken critic of President Donald Trump, Mair courted controversy during the 2016 presidential campaign when her Make America Awesome super PAC released an ad depicting nude photos of first lady Melania Trump from a 2000 GQ photo shoot.
Joshua Matz, a lawyer for Mair, described the conspiracy allegations as “nebulous.” He said her legal team is planning to contest those allegations in court if the case proceeds. “It seems Mr. Nunes is planning to file these complaints all around the country,” he said. “It’d make more sense in California.”
Earlier this year, after the lawsuits were filed, a lawyer for the Washington, D.C.-based Public Citizen Litigation Group said he suspects the lawsuit against McClatchy was filed in Virginia in an attempt to get around the California statute.
“Unlike California, the Virginia statute does not create a special procedure for filing [anti-strategic lawsuit against public participation] motions that require judges to determine the plaintiff’s probability of success,” lawyer Paul Levy said, according to The Daily Progress in Charlottesville. “The statute also does not guarantee the granting of attorneys fees for defendants who secure dismissals.”
Lawyers for Twitter also argued that the case should be heard only in California, as its user agreement specifically says that all disputes related to its rules can be brought up only in federal or state courts in San Francisco, where the company is based.
Nunes is seeking $250 million in damages in the Henrico case. Biss, his lawyer, declined to answer questions after court.
Marshall, the Henrico judge, said he will rule within the next two weeks on whether the case will proceed and if Nunes’ lawyer can begin requesting records from the defendants.