WASHINGTON, D.C. Dec. 10, 2019 – A Virginia court should ensure that the person using the satirical Twitter pseudonym “Devin Nunes’ cow” (@DevinCow) can remain anonymous, Public Citizen and the ACLU said today in a friend of the court (amicus) brief.
The filing comes in a March 19 lawsuit filed in the Circuit Court for the County of Henrico by U.S. Rep. Devin Nunes (R-Calif.) against Twitter, the person running the Twitter parody account @DevinCow, the person running Devin Nunes’ Mom (@mom_nunes) and a political consultant.
In his suit, Nunes claims that he has been defamed. He has issued a subpoena to a Virginia law firm that is helping finance the legal defense of the parody accounts, demanding information that would identify the people running the two accounts. The law firm has moved to block the subpoena.
In their brief in support of the motion, Public Citizen and the ACLU agree, addressing only the @DevinCow account. The brief explains that while courts in other states have established standards as to when Internet critics can remain anonymous, Virginia appellate courts have not yet done so. The brief urges the court to adopt the standard applied in other states.
Under that standard, first adopted in 2001 by a New Jersey court, to unmask the identity of an online user, the person suing must, among other things: 1) state specifically what the defamatory language is; 2) show specifically what negative statements embody facts rather than expressing opinions; 3) present evidence that any defamatory statements are factually false; and (4) weigh the potential harm to the person bringing the lawsuit against the harm to the critic if that person is identified.
Under this standard, Devin Nunes’ Cow should be permitted to remain anonymous, the groups said. In the suit, Nunes cites a series of brief quotations or paraphrases from @DevinCow but fails to show how the words were defamatory. In fact, many of the statements are constitutionally protected opinions, which don’t meet the definition of defamation.
The lawsuit cited an entire tweet (a criticism that @DevinCow retweeted), but the negative statements in the tweet aren’t even about Nunes.
“The Devin Nunes’ Cow account is obviously a parody,” said Paul Alan Levy, attorney for Public Citizen. “That’s clear from all the cow-related puns in the tweets. The statements are simply rhetorical insults. They certainly don’t meet the definition of defamation. It’s completely inappropriate for Nunes to ask the court to identify his online critic.”
“Rep. Nunes’ efforts to unmask Devin Nunes’ Cow rest on defamation claims about constitutionally protected opinion and political rhetoric,” said Brian Hauss, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “Fortunately, the First Amendment prevents Rep. Nunes from turning our courts into his own personal Star Chamber.”
Public Citizen has worked for years through the courts to establish strong First Amendment anonymity rights for online critics of corporations and politicians, and represented an Internet user in the New Jersey case that set the widely used standard for online anonymity. The ACLU is dedicated to defending the principles embodied in the Constitution and has been at the forefront of efforts nationwide to protect civil rights and liberties. The ACLU’s Virginia chapter has appeared before the courts in free speech cases.
Matthew E. Kelley in the Washington, D.C., office of Ballard Spahr LLP is Virginia co-counsel on the amicus brief.