Section 230 Protects Twitter from the “Devin Nunes’ Cow” Lawsuit–Nunes v. Twitter

In this well-publicized case, Rep. Devin Nunes sued Liz Mair (@LizMair) and the accounts @devincow (“Devin Nunes’ Cow”), and @DevinNunesMom for various tweets. That lawsuit is dubious. Even less wisely, Nunes also sued Twitter for these third-party tweets. The judge gave Nunes a first-hand tutorial in Section 230 and dismissed Twitter. The case wasn’t close.

The court rejects Nunes’ key arguments:

• Courts can grant the Section 230 defense on a motion to dismiss because it is an immunity from suit. This issue has vexed courts from time to time (remember the tortured Barnes v. Yahoo ruling?). At this point, most courts will grant Section 230 on a motion to dismiss when the defense is apparent on the complaint’s face. (Like when a plaintiff tries to hold Twitter liable for third-party tweets).
• Nunes tried the common “conservative” talking point that Twitter lost its eligibility for Section 230 because it made editorial decisions about third-party content (the “it’s no longer a platform, it’s become a publisher” argument you find routinely featured on @BadLegalTakes and @BadSec230Takes). The court responds simply: “Plaintiff seeks to have the court treat Twitter as the publisher or speaker of the content provided by others based on its allowing or not allowing certain content to be on its Internet platform. The court refuses to do so” (citing Zeran). THERE IS NO PUBLISHER/PLATFORM DISTINCTION IN SECTION 230 JURISPRUDENCE AND NEVER HAS BEEN. Anyone suggesting otherwise deserves to be posterized on @BadLegalTakes and @BadSec230Takes.
• Nunes tried another popular “conservative” talking point that Twitter exhibited viewpoint bias against him, and that means Twitter should lose Section 230’s protection. The court says that the Nemet Chevrolet v. ConsumerAffairs court found Section 230 even when the plaintiff alleged bias.

The opinion concludes with a curious statement: “The court further finds that 47 USC Section 230 (c)(2) provides immunity for all civil liability and therefore Twitter is immune from Plaintiff’s negligence claim.” This sentence makes more sense if the court meant Section 230(c)(1) and not Section 230(c)(2). Zeran and Barnes both rejected negligence claims on (c)(1) grounds. If the court meant what it said, this sentence seems likely to exacerbate “conservatives'” baffling obsession about Section 230(c)(2).

In an uncharacteristically savvy legal move, California congressmember Nunes sued California-based Twitter in Virginia, not California. This means he avoided California’s powerful anti-SLAPP law that would have forced him to write a check to Twitter for its defense costs. (Virginia has some enhanced protections for defamation defendants but still needs a robust anti-SLAPP law). This case is another awesome example of why we need a federal anti-SLAPP law to prevent plaintiffs like Nunes from forum-shopping into jurisdictions without strong anti-SLAPP laws. It would take a lot for Nunes to rehabilitate the reputation he’s earned from bogus lawsuits like this, but sponsoring a strong federal anti-SLAPP law would be a positive move. More likely, Nunes will violate the First Rule of Holes and appeal this ruling.

Personally, I’m always fascinated when elected politicians lose badly as plaintiffs. I hold them to a higher standard than other plaintiffs because we entrust our politicians to craft our laws. When they so blatantly demonstrate that they don’t understand the law at all, they indicate that their constituents never should have given them supervisory power over our laws in the first place. I wonder if this will be a relevant factor for Nunes’ constituents in November’s election.

Case citation: Nunes v. Twitter, Inc., 2020 Va. Cir. LEXIS 89 (Va. Cir. Ct. June 24, 2020)