Thursday, March 21, 2019

Red, red whine: Devin Nunes' defamation flawsuit against Twitter, a bogus bovine, et al.

I'm probably only the four-millionth or so person to mention this, but have you noticed a certain hyper-sensitivity in many of the conservative/libertarian manly men (and a few proud and defiant women) -- you know, the ones who are currently infesting the political and cultural landscape with their bright red caps and fact-devoid social media memes? Have you observed, as I have, that they seem to have awfully thin skins -- especially when you consider their derisive sneers about the oppressive, America-threatening "political correctness" of the left, and their screeds about wimpy liberals (aka "snowflakes") who are hypersensitive to "triggers" and have an insatiable need for "safe spaces?"
I have previously danced around the theme of right-wing snowflakery, e.g.,
in this May 2016 post (trigger warning: contains nekkid Donald Trump picture). But it's a matter that has captured my attention more fully in light of rabid Republican "strategist" Devin Nunes' comic $250 million lawsuit against Twitter, a made-up mommy, and a fake cow. (And I'm probably only the four-millionth or so person to publicly write about this, but I never claimed to be a groundbreaker.)

Anyway. From the Vox article linked to just above:

A member of Congress since January 2003, Nunes is perhaps best known nationally first for his involvement in the Benghazi investigation and second for his dogged defense of Donald Trump, upon whose transition team Nunes served. It was Nunes, for example, who wrote the 2018 memo on wiretapping that many Trump supporters believed would permanently damage special counsel Robert Mueller’s investigation into Trump’s 2016 campaign. (It didn’t.)

So it stands to reason that Twitter users less enthralled with Trump would tweet things about Nunes that were perhaps less than cordial — like calling him a “presidential fluffer and swamp rat,” for instance. (In fact, a tweet using those very words was included in the lawsuit.)

But in the 40-page
complaint filed on Monday, Nunes argues that tweets like that and the two parody Twitter accounts were not merely examples of Twitter being Twitter. Rather, he argues that the social media platform served as “a portal of defamation” by permitting parody accounts of his mother and his imaginary bovine to exist on the platform.
The operative word, seemingly missed by Nunes and his lawyer, is "parody." Which, you know, is protected in the United States by the First Amendment and whatnot. Parody and other forms of sometimes unpopular speech are not protected everywhere, of course. In Russia (to name but one example of other places in the world where freedom of expression is not exactly a sacred cow), a person might, thanks to a new law recently signed by Trump's dom bromantic partner Putin, conceivably be prosecuted for parody, since it is by its nature disrespectful, and if your parody or satire disrespects Putin or the Russian government, well, then, shame on you, Господин or девушка Smarty-Pants. But the US isn't Russia... not yet, anyway.

Here is the direct link to the fake farm animal's Twitter account, which has more Twitter followers than the real Devin. Goodness, that must trample on his ego. If you're on Twitter and haven't done so already, why not go ahead and follow that cow? I've herd that she's very nice, the crème de la crème.  

Who feels more "hard done by": libs or cons?
Defamation cases are nearly always about hurt feelings, and a sense of being hard done by, as much as they are about actual damages. (A tip of the hat to
an ancient post on the Kung Fu Monkey blog, which I've cited here before, for the "hard done by" theme. Ah, "that sweet crack pipe of moral indignation.") For me, this latest legal looniness brings up an argument that has been going on for a few years regarding who is in fact more hypersensitive: liberals/left-wingers or conservatives/right-wingers. -- to name but one of countless examples -- has tackled this matter, running two surveys that I know of a couple of years ago -- this one and this one. Spoiler: the right-wingers won the sensitivity sweepstakes both times.

But the core sensitivity of so many crass loudmouths and blowhards on the right should come as no big surprise anymore, particularly since #NotMyPresident
Donald J. Trump is such a thin-skinned type himself. For instance, just this past weekend he got in a lather about a rerun of the Christmas 2018 episode of NBC's Saturday Night Live, suggesting once again that SNL and other media he doesn't like should be investigated by the Federal Communications Commission and the Federal Election Commission.

Moreover Trump
is apparently making good on the promise/threat that he spewed forth in his recent two-hour-plus rant to the Conservative Political Action Conference: a vow to sign an executive order that would punish colleges and universities that "do not support free speech" by denying them federal research funds. The initial promise was a direct response to a February 19, 2019 incident on the campus of the University of California Berkeley in which a man who was not a Berkeley student was on campus expressing his support of Trump, whereupon another man, who was not a Berkeley student either, punched him. The punchee, one Hayden Williams, was paraded around by Trump as a hero at the CPAC rant, the poster child for liberals' oppression of conservatives on campus.

Never mind that Berkeley was, in fact, already providing a solid platform for conservatives and pro-Trumpsters. In this case, the conservative org Turning Point USA was, with the university's permission, recruiting students to the cause. And never mind that
many universities already have free-speech guidelines and policies that allow non-liberal expression on their campuses. Those inconvenient facts didn't stop the right-wing whining following the punching, and didn't stop Trump from his subsequent grandstanding.

Also never mind the fact that, according to the Chicago Trib article I cited a couple of paragraphs ago, "it's unclear what type of free speech limitation could trigger a loss of federal research funding. White House officials declined to provide specific cases of free speech suppression." The guiding sentiment behind the EO seems to be that by golly, it's time that someone stepped up and protected (conservative) free speech!

Here's an opinion piece, published on March 4, 2019 in the wake of the CPAC rant, explaining why Trump is missing the point, once again.
...Because almost across the board institutional missions center on scientific discovery, knowledge and learning, institutions of higher education are a key mechanism for fostering democratic education. Campuses often subscribe to John Stuart Mill’s notion that a university is a “marketplace of ideas,” where educators offer “balanced perspectives” so that students can “hear the other side” on every issue.

However, academic freedom guidelines specifically say that faculty members need not always cover “the other side” if the standards of the discipline deem that other side to be untrue. When topics seem to be settled, with a right answer having emerged through science and ethics, faculty can focus on the knowledge produced. A white nationalist view, for example, does not merit debate within the campus marketplace of ideas.

In the aftermath of
the Charlottesville, Va., tragedy, these disagreements have taken on a deeper significance, as those of us who work within higher education navigate increasingly polarized contexts for teaching, learning and research. Public discussions of these issues have been dominated by legal analyses of the First Amendment, without sufficient attention to philosophical discussion of disagreement, truth and the democratic purposes of higher education.

College faculty and campus leaders are caught between wanting to be nonpartisan and promoting their institution’s missions, which often prioritize excellence and truth...
On the other hand, if colleges and unis are mandated by executive order or law or whatever to allow free speech, religious schools such as Liberty University, which also receives federal research funds, might have to allow satanists and abortion-rights advocates to speak on their campuses. So there's that. Could be interesting.

Misusing the courts to capitalize on being hard done by
It's not unusual for thin-skins who have the resources to try to use the legal system to fight back against real and imagined slights, generally via multi-million dollar "defamation" lawsuits. Trump is one notable and obvious example; a few of those defamation lawsuits
are listed in this article, though the piece also covers some of his other infamous and yuuugely expensive legal dramas.

Another recent example is the "Covington kid," the MAGA-cap-sporting Catholic school student Nicholas Sandmann,
whose parents sued the New York Times for $250 million and, more recently, CNN for $275 million, for the news outlets' initial coverage of an incident in which their kid confronted an elderly Native American activist and some shouting Black Hebrew Israelite cultists. (Never mind that the NYT and CNN and most other mainstream outlets revised their stories as new info came to light.) Part of the plaintiffs' argument was that the media are biased against Donald Trump and conservatives. Ah, snowflakes. No two are alike, and yet at some level they all are.

And now there's Devin and that fake mama and that bogus bovine and, of course, that very real social media platform, the latter of whom possesses the actual deep pockets that Devin and his legal team hope to mine.

If you want a good laugh,
read the lawsuit. I have been trying to find a dowloadable PDF of the document that includes the filing/court stamps, indicating that it was actually filed and the date and time that this occurred. The document to which I linked does not seem to be that, but it was uploaded to Scribd by Fox News on March 18, and seems to be the reference point for all of the chatter about it. It begins by trying to lay out the case that Twitter has been purposely defaming poor Devin and continues to do so, and that furthermore Twitter has it out for all Republicans.
1. Twitter is an information content provider. Twitter creates and develops content, in whole or in part, through a combination of means: (a) by explicit censorship of viewpoints with which it disagrees, (b) by shadow-banning conservatives, such as Plaintiff, (c) by knowingly hosting and monetizing content that is clearly abusive, hateful and defamatory – providing both a voice and financial incentive to the defamers – thereby facilitating defamation on its platform, (d) by completely ignoring lawful complaints about offensive content and by allowing that content to remain accessible to the public, and (e) by intentionally abandoning and refusing to enforce its so-called Terms of Service and Twitter Rules – essentially refusing to self-regulate – thereby selectively amplifying the message of defamers such as Mair, Devin Nunes’ Mom and Devin Nunes’ cow, and materially contributing to the libelousness of the hundreds of  posts at issue in this action.

2. Twitter created and developed the content at issue in this case by transforming false accusations of criminal conduct, imputed wrongdoing, dishonesty and lack of integrity into a publicly available commodity used by unscrupulous political operatives and their donor/clients as a weapon. Twitter knew the defamation was (and is) happening. Twitter let it happen because Twitter had (and has) a political agenda and motive: Twitter allowed (and allows) its platform to serve as a portal of defamation in order to undermine public confidence in Plaintiff and to benefit his opponents and opponents of the Republican Party...
And so on, and so forth, adding up to yet another fine red whine. Alas, poor Devin, and oh, those poor, put-upon Republicans.

This bit, which occurs towards the end and wraps up the counts for which the plaintiff is demanding so much money, made me chuckle.

... 54. Beginning in February 2018 and continuing through the present, Mair, Devin Nunes’ Mom and Devin Nunes’ cow, acting as individuals, combined, associated, agreed or acted in concert with each other and/or with one or more “clients” or other donors, non-profits, operatives or agents of the Democratic Party (whose identity is unknown at this time) for the express purposes of injuring Nunes, intentionally and unlawfully interfering with his business and employment as a United States Congressman, and defaming Nunes. In furtherance of the conspiracy and preconceived plan, the Defendants engaged in a joint scheme the unlawful purpose of which was to destroy Nunes’ personal and professional reputations and influence the outcome of a federal election.
Nunes is asking for a minimum of $250,000,000 for the alleged attempts to destroy his reputation, but is certainly open to the idea of receiving much more, should it please the court. On his monologue on March 19, 2019, Stephen Colbert said that Nunes' legal team came up with that figure by applying a scientific legal formula: they took the dollar amount that Nunes' reputation is actually worth, and added $250,000,000 to it. That sounds about right.

Colbert and gang felt inspired by the hoopla to create
another parody Twitter account, Devin Nunes' Skin. The opening (and so far only) tweet:

Still thin.
Less than 24 hours after being launched, that account had more than 30,000 followers. And although as of this writing the account still contains a solitary tweet, the following is making its way steadily to 44,000.

I am well aware that there is an ongoing debate about several issues related to social media, and one of these issues is the question of whether or not platforms such as Facebook and Twitter are indeed biased against conservatives. A poll taken late last year by Hill.TV and American Barometer indicated that a majority of American voters thought that the social media giants have a systemic bias against conservative views. Unsurprisingly, the poll was heavily divided along party lines, with Republicans overwhelmingly likely to view tech companies as being biased against conservatives. Media bias is a perennial issue that is worthy of exploration and analysis, but frivolous defamation lawsuits by whiny politicians and other public figures are not helpful at all.
Conspiranoia strikes deep...again
All of the talk about conspiracy to defame reminds me very much of
another defamation flawsuit from a few years back, one in which I was the top-named defendant. It didn't make the mainstream news, of course, and was barely a blip in the blogosphere, but if you think I am going to pass up an opportunity to sneer about it, you are very much mistaken. As you may know, the suit did not go very well for the plaintiff, Not-Doktor Leonard Coldwell, aka LoonyC, the stupidest and most evil man in Scamworld; his attorneys advised him to drop the case, and he did. Nor did his previous attempt to sue a critical blogger (my pal and co-defendant in the aforementioned case, Salty Droid) go very well; his rent-a-lawyer in that one dropped out of the case early on, and the whole thing was dismissed because LoonyC never showed up for any hearings. Yet he has continued to boast about his powerful legal team and about his steadfast willingness to fight and defeat anyone who dares to "defame" him.

Arguably the majority of defamation lawsuits fail, at least in the US.
It's complicated, and I don't claim to be anything remotely resembling an expert on these matters. But it seems that more than likely, Devin Nunes doesn't have a very strong case, in part because he is a politician and a public figure, and America has a long history of protecting those who make fun of our politicians. Also, Twitter is merely distributing, not creating, the offending content. But some have warned that even if Nunes loses the lawsuit and the probable appeal, he is creating an opening for the Supreme Court to reconsider its previous rulings on defamation and public officials. As a lawmaker, Nunes is in a unique position to introduce legislation that could very well have a chilling effect that would make Putin proud.

For now, it seems nothing will stop either Nunes or his detractors from... oh, you knew this was coming, didn't you?... milking this matter for all it's worth. But it's worth noting that last year Nunes was a co-sponsor of HR 1179, the "Discouraging Frivolous Lawsuits Act."
Cory Doctorow on Boing-Boing made sport of this (as well as the now-defunct fake-mama Twitter account).
Nunes is upset that he was called a "herp-face," and is really upset about a human centipede meme that depicted Nunes, Trump and Putin as generic, labeled stick-figures with their mouths grafted onto one-another's anuses. This tweet may just be the greatest exhibit ever filed in a lawsuit.
It's a very good thing to have a little comic relief in the midst of the horror and chaos that is swirling all around us, but let's hope that the right-wing snowflakes don't have the last laugh.

Addendum, 5 April 2019: Republican strategist Elizabeth "Liz" Mair, who besides Twitter is actually the main defendant in Nunes' silly complaint, wrote a serious editorial about the real threats to free speech for all of us. It was published in USA Today. Here 'tis.
Related on this Whirled: Vintage whines from conservative conspiranoid snowflakes

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