As most of the internet knows by now, Rep. Devin Nunes, a Republican from California, is suing Twitter and three of its users for defamation. The suit, filed March 18 in Virginia, demands $250,350,000 in damages: $350,000 in punitive and $250 million in compensatory damages.
What sets this lawsuit apart is not only the huge damages sought by a member of the House of Representatives, but the identities of several of its defendants. They’re anonymous Twitter users named “Devin Nunes’ Mom” (@DevinNunesMom) and “Devin Nunes’ cow” (@DevinCow). The “Mom” account has been suspended, but @DevinCow continues to grow. It boasts close to 600,000 followers—up from a mere 1,204 as noted in the complaint, and more than Nunes’ official account, which has 397,000. (That’s a major Streisand effect!) And additional parody accounts are multiplying, including @cow_nunes (Devin Nunes’ Cow’s Lawyer) and @NunesAlt (Devin Nunes’ Alt-Mom).
Other legal commentators have already dissected the merits of Nunes’ libel claims, including Alan Dershowitz, the reliably conservative Fox News legal analyst. Most of them, including Dershowitz, think that Nunes has slim to no chance of winning. @DevinCow’s feed is filled with dairy puns. And although the tweets reprinted in the complaint from @DevinNunesMom may be mean-spirited and sometimes profane, they probably don’t rise to the level of knowing falsity or reckless disregard for the truth that would constitute actual malice. That’s the legal standard that Nunes, as a public official, would have to prove to win his libel suit under the current standard, established in 1964 in New York Times v. Sullivan.
But there’s another element to this case that almost no one’s discussing—and that’s the Twitter rules allowing parody accounts and protecting parody in general. Nunes’ complaint makes full use of Twitter’s terms of service, quoting liberally from the “abusive behavior” section. But aside from a brief mention of the fact that parody accounts can exist, the complaint doesn’t engage on that issue—probably because it’s another potential nail in the suit’s coffin.
The parody section of the terms of service is clear: Twitter allows these accounts if the bio and account name (not the @ handle) clearly indicate that the user isn’t affiliated with the parodied subject. This nonaffiliation can be accomplished with the use of words like “fake” or “fan,” but those words don’t have to be included. It just has to be done in “a way that can be understood by the intended audience.” Because the @DevinNunesMom account is suspended, it’s hard to say whether the bio was clear enough at the time of suspension to be considered a parody—although the tweets would be understood by the intended audience to be satirical. However, a Wayback Machine archived version of the bio captured in February does make the account’s parody status clear. The @DevinCow account is easier: Cows don’t tweet.
Parody and satire are highly protected speech forms in the United States. The lead Supreme Court case is Hustler v. Falwell, handed down in 1988. The Rev. Jerry Falwell, displeased with a satirical ad published in Hustler that described him getting drunk on Campari in an outhouse and then having sex with his mother there, sued the magazine for defamation and intentional infliction of emotional distress. The justices were having none of it. Writing for the court, Chief Justice William Rehnquist extolled the importance of parody in the the political process, listing George Washington and Abraham Lincoln as among those satirized by their political foes. Ill will, said Rehnquist, isn’t enough to recover damages here. Satirical speech aimed at public officials may be offensive and intended to inflict emotional harm, but the First Amendment will protect it when it’s clear that it couldn’t reasonably be interpreted as stating actual facts about its target.
Nunes isn’t the first political figure to be parodied on Twitter. Prior to the 2011 Chicago mayoral election, an account bearing the handle @MayorEmanuel emerged. This account parodied former White House chief of staff and then mayoral candidate Rahm Emanuel with a profane but still humorous stream of tweets, and he took it in stride. Rather than suing or demanding that the account be suspended, the real Emanuel pledged $5,000 to a charity of the parodist’s choosing if the person came forward, which he did shortly after Emanuel’s election win.
Contrast Emanuel’s response with that of his mayoral neighbor, Jim Ardis of Peoria, Illinois. In 2014, Ardis discovered that he had a parodist tweeting nasty things about his sexual proclivities under the handle @peoriamayor. Emails obtained through an Illinois Freedom of Information Act request showed that the mayor and the police chief tried unsuccessfully to get Twitter to shut the account down, then turned to an Illinois false impersonation law—and obtained a search warrant. The parodist had earlier brought the @peoriamayor account into compliance with Twitter parody policy, but Twitter suspended the account after Ardis threatened the company with an injunction to shut the account down under the false impersonation law. Public outcry resulted in no charges filed, while the parodist sued Ardis and the city and won a $125,000 settlement. Here too, additional parody accounts sprang up as news of the emails, search warrant, and subsequent raid on the parodist’s house made local and national news. (Trevor Noah even did a Daily Show segment on it.)
Twitter also enjoys additional safeguards under Section 230 of the Communications Decency Act. Passed in 1996, Section 230 virtually immunizes “interactive computer services” like Twitter, Facebook, and YouTube from liability for third-party posts on their sites. Section 230 isn’t perfect, and there have been calls to get rid of it or debate how it could be improved. However, both public discourse and companies from Amazon to Yelp benefit from Section 230’s liability protections that allow third parties to engage in discussions on their sites. Add these defenses to the weak defamation case and the strong parody protections, and Nunes’ suit appears doomed to fail.
So why sue at all? Maybe it’s not about winning a libel suit for Devin Nunes. Maybe, given the large damage awards he’s seeking, he’s trying to intimidate his critics into leaving him alone on Twitter, into abandoning their parody accounts or not starting them. If that’s his goal, he failed. But also in the complaint are accusations of shadow banning, a practice alleged by Republicans in which Twitter hides their posts from everyone but themselves, and in a way that they don’t know it’s happening. Twitter claims that it doesn’t do this, but the allegation plays into a larger conservative narrative that technology companies are trying to silence their voices. If that’s Nunes’ game, he’s certainly won: His voice is now quite loud online, although perhaps not in the way he intended.
Or maybe, like Ardis, he just has a thin skin.