Devin Nunes' Libel Suit is Even Nuttier Than it Sounds

Devin Nunes' suit against Twitter has led to a lot of ridicule and a lot of cow jokes.  But if you look at it closely, it is even more alarming.  This is not to suggest that it will succeed.  There are multiple reasons why it will not.

For one thing, even if Nunes can prove libel, Twitter will not be liable under the Communications Decency Act, which hold that an internet forum that merely provides a place to publish is not liable for the content that is published there.  In other words, Nunes has no claim against Twitter, only against the posters there.  And his libel claim fails on multiple counts.

One is that under longstanding Supreme Court case of New York Times v. Sullivan, for a public figure to win a libel suit, he or she has to prove "actual malice," defined as knowing the statement was false or seriously doubting its truth.  It is true that Clarence Thomas as recently expressed an interest in overturning this rule, so Nunes may be hoping that this will be the test case that overturns it.  However, even if Nunes gets New York Times overturned, he will face other problems.

Furthermore, to be libel, a statement has to allege "fact."  This means, it must be something meant to be taken more-or-less literally.  The complaint consists largely of quotes from hostile Twitter accounts, many outrageous, some obscene, but very few anything that could be taken literally or even close to it.

Nunes also claims for emotional distress.  But that claim has been foreclosed by the case of Hustler v. Falwell (and yes, that really is Jerry Falwell versus the porn mag).  In that case Hustler ran an obscene story about Jerry Falwell in a drunken incestuous tryst with his mother in an outhouse.  It was not considered defamatory because it was clearly not meant to be believed.  The Supreme Court held that if Falwell couldn't claim for defamation, he couldn't claim for emotional distress, either. 

In this case, everyone who has ever looked at Twitter knows that it is a sewer.  Nunes appears to think that he has been personally singled out, but in fact he has been treated no worse than anyone else on Twitter.  If one takes this suit seriously, it is an attempt to outlaw Twitter.  (Maybe a good idea, but that is a different matter).

But it isn't just Twitter that Nunes wants to outlaw.  He also makes a claim for "defamation per se."  Roughly speaking, some things are considered so defamatory as to be defamatory by law (unless true).  There are traditionally five allegations that are considered defamatory per se:  (1) commission of a crime of moral turpitude (OK); (2) affliction with a loathsome communicable disease that would tend to exclude the plaintiff from society; (3) unfitness for some office or employment for profit or want of integrity in the discharge of the duties of such office or employment; (4) some falsehood that prejudices the plaintiffs profession or trade; or (5) the unchastity of a woman (sometimes changed in these modern times to an allegation of serious sexual misconduct).  Clearly the distinction between numbers 3 and 4 is rather unclear and they are often lumped together.  But Nunes claims in this category are just plain nuts:

The statements impute to Nunes an unfitness to perform the duties of an office or employment for profit, or the want of integrity in the discharge of the duties of such office or employment. Finally, Defendants’ false statements also prejudice Nunes in his profession or trade as a United States Congressman.

He also complains that these Twitter attacks were a conspiracy to make him lose the election, and that as a result he did, indeed, win by a narrower margin than in the past. 

Of course, anyone challenging an incumbent routinely impugns the incumbent's fitness to hold office or integrity in discharging those duties.  Yes, granted, it is hypothetically possible to run for office solely by boasting about one's own credentials and/or challenging the incumbent on the issues.  Maybe it would be better to run for office that way.  But here in the real world, we all know things don't work that way.

And the whole point of seeking office is the prejudice the incumbent's profession or trade as an elected official.  To say nothing of the idea that running for office is a "conspiracy" or that costing the incumbent votes is an actionable item of damages.

If we take Nunes at his word, he wants to outlaw election campaigns!