As has been widely reported, Representative Devin Nunes has filed a lawsuit against an imaginary cow. Apparently the Twitter account @DevinCow has proved so abusive that Nunes is defending his good name in the Henrico County Circuit Court in Virginia, seeking $250 million in damages.
The complaint alleges content “that is clearly abusive, hateful and defamatory . . . that no human being should ever have to bear and suffer in their whole life.” Needless to say, this description spurred me to log on immediately.
Sandwiched between bucolic pictures of cows, some photo-shopped with Nunes’s head, are tweets opining that the suit is “udderly ridiculous” and Nunes should be given a swift kick in the “dairy-erre.” The cow herself has joined in with “I moo that this case be dismissed.”
We should be grateful to Nunes for making himself a laughingstock; after all, not so long ago, as the chair of the House Intelligence Committee, the California Republican was doing his best to obstruct inquiry into attacks on our national security and free elections.
Still, there are a few points that bear mention. Perspective, for starters: In the words of one commenter, @Murtwitnessone: “A US congressman is suing an online cow. Let that sink in.” And surely there are more serious problems for Nunes to focus on. The San Joaquin Valley, which Nunes represents, is reported to have some of the nation’s worst air quality, high rates of childhood asthma, and contaminated drinking water. But these must take a backseat for the moment.
Nunes, for all his buffoonery, has a dark purpose. He is acutely aware that the court system can be abused by those with sufficient resources. During the last session, Nunes cosponsored a bill, HR 1179, entitled the “Discouraging Frivolous Lawsuits Act.”
The real purpose of that legislation was to amend the Clean Water Act so that judges would be required to award litigation costs, including expert witness fees and attorneys’ fees, against losing parties regardless of whether the lawsuit had merit. Such costs pose a far greater problem to citizens’ groups and nonprofit organizations, the most likely plaintiffs in environmental cases, than they do to industry defendants. The point is clear — intimidation.
But by pursuing Twitter, Nunes is also trading on the very real concerns that millions of Americans have about online content providers and social media sites. The difficulty inherent in policing online content — and the disinclination of Internet hosts to do so — has become a defining unintended consequence of the electronic age. Even while Nunes is busy defending his honor from well-deserved ridicule, he is piggybacking on public reaction to the proliferation of hate speech on social media. .
In fact, Nunes’s lawsuit frankly admits that its purpose is to curtail speech. Revealing serious paranoia, it requests an immediate injunction against a dramatic cast of conspirators:
“Whether the accounts are controlled by wealthy Democrats, the Democratic National Committee, an opposition research firm, such as Fusion GPS, the ‘Russians,’ the ‘Chinese,’ or some other foreign government or non-governmental organization (NGO), the corruption of American Democracy and society by intentional falsehoods, fraud and defamation must stop.”
Of course, the next best thing to killing speech is chilling speech. So perhaps not coincidentally, Supreme Court Justice Clarence Thomas recently indicated he wants to make it easier for public figures to win defamation suits by relaxing the standard they have had to satisfy for more than a half-century under the Supreme Court’s landmark case New York Times v. Sullivan. In making this wrong-headed suggestion, Thomas, wittingly or not, is serving the interests of Nunes and President Trump, who understand all too well that the First Amendment is a powerful antidote to the spread of authoritarian and dishonest government.
We may laugh at Nunes and his latest antics, and we should. But we must also be careful to refute the seriously deformed vision of America that he represents.
Andrew Grainger is a retired associate justice of the Massachusetts Appeals Court.