Devin Nunes Loses Yet Another SLAPP Suit, This Time In California

Devin Nunes' campaign to intimidate and silence his critics with a flood of SLAPP suits has hit another stumbling block. While he and his lawyer, Steven Biss, had mostly avoided filing lawsuits in states with strong anti-SLAPP laws, including his home" state of California, for some reason in the fall of 2020 he sued Twitter and someone named Benjamin Meredith in California state court.

The lawsuit implied that Meredith was connected to the @DevinCow account that has vexed Nunes for so long. From the initial complaint:

Meredith controls multiple anonymous Twitter accounts that he uses multiple times daily to viciously attack Plaintiff. With Twitter's knowledge and direct participation, Meredith in violation of 1708.7 of the California Civil Code has used Twitter in the past two years to deploy thousands of incendiary and hateful comments with the intent to injure, alarm, harass, dox and intimidate Plaintiff.

A somewhat bizarre part of the lawsuit is the claim that while Meredith himself is not behind the @DevinCow account, he may be married to the person behind the account. This may be tough to follow because none of it makes much sense, but Nunes filed a declaration (this all starts on page 110 of the massive document removing the case to federal court) in the lawsuit saying that his attorneys connected Meredith to the @DevinCow account by finding a WordPress blog that showed a tweet that simply claimed (with no evidence) the name of the person they believed was behind the DevinCow account, and naming her (locked) Twitter account. That account had a bio description that read Mom, wife, therapist, dog friend."

Nunes' declaration then states that his lawyers searched and found another Twitter account with the same bio - Mom, wife, therapist, dog friend" - belonging to Meredith's wife. If this all seems like quite a stretch, well... yeah.

There were two main claims in the case: stalking and common law commercial misappropriation (because of products mocking Nunes). Early on in the case, Nunes dropped Twitter from the lawsuit. Meredith removed the lawsuit to federal court and filed an anti-SLAPP motion under California's anti-SLAPP law.

And, well, let's just say that Judge Jennifer Thurston is not the first judge who is less than impressed by a Biss/Nunes production dismissing the complaint under California's anti-SLAPP law. She does, however, allow Nunes the opportunity to file an amended complaint, so this is likely not over yet.

First up, the court finds that on the claims of cyberstalking, it all covers clearly protected speech, and speech that is in the public interest:

As Nunes himself explains, he is aUnited States Congressman, representing California's 22nd Congressional District and serves as aRanking Member of the House Permanent Select Committee on Intelligence. (Id. at 67.) Highprofile individuals," such as politicians and celebrities, are persons in the public eye and of publicinterest that typically receive extensive media scrutiny." Jackson, 10 Cal. App. 5th at 1254(finding statements on social media regarding a celebrity's various medical conditions andtreatments are matters of public interest); see also Henley v. Jacobs, 2019 WL 8333524, at *9(N.D. Cal. Aug. 2, 2019) (concluding statements regarding competitors and politicians,unquestionably concern an entity in the public eye' on a matter of widespread public interest'").

Meredith's commentary on Nunes as a political leader constitutes a topic of widespreadpublic interest because the right to speak on political matters is the quintessential subject of ourconstitutional protections." Collier, 240 Cal. App. 4th at 52-53 (holding the registration ofdomain names for websites used to endorse and discuss political candidates was in furtherance ofprotected speech under the anti-SLAPP statute); Roberts v. Los Angeles Bar Assn., 105 Cal. App.4th 604, 614 (2003) (internal quotations omitted) (Public discussion about the qualifications ofthose who hold or wish to hold positions of public trust presents the strongest possible case forapplications of the safeguards afforded by the First Amendment."). Critiques of Nunes's qualifications as political leader, such as statements about his criminal history, further underscorea public interest concern. Matson v. Dvorak, 40 Cal. App. 4th 539, 543, 548 (1995) (affirmingtrial court's dismissal of a political candidate's invasion of privacy claim where a flyer alleged thecandidate owed hundreds of dollars to the police department for unpaid fines).

Nunes does not dispute that Meredith's Tweets concern a widespread public interest orthat he is in the public eye. Instead, Nunes broadly asserts that [w]hen words are part of a patternof stalking or harassing behavior, they do not constitute protected speech." (Oppo. to Strike at64.) Nunes provides no authority to support his assertion. Despite listing approximately threepages of case law, none offer any guidance to interpret the protections of California's anti-SLAPPstatute. (Id. at 64-66.) The vast majority of Nunes's authorities originate from other jurisdictions,irrelevant to California law. (Id.) The few cases Nunes cited from the Ninth Circuit and Californiacourts, do not involve challenges to the anti-SLAPP protections, but rather analyzed FirstAmendment protections to rebut stalking and harassment allegations. See, e.g., People v. Borelli,77 Cal. App. 4th 703, 716 (2000); United Artists Corp. v. United Artist Studios, LLC, 2019 WL6917918, at *10 (C.D. Cal. 2019). Nunes did not explain how the First Amendment protectionsapply to the analysis of step one under the anti-SLAPP statute. To the contrary, the CaliforniaLegislature did not limit the scope of the anti-SLAPP statute to activity protect by theconstitutional rights of speech and petition. It went on to include any act . . . in furtherance of'those rights." City of Montebello v. Vasquez, 1 Cal.5th 409, 421 (2016) (emphasis in original).Accordingly, when determining the scope of anti-SLAPP protections, courts must look to thestatutory definitions in section 425.16, subdivision (e)," not simply to First Amendment law. Id.at 422; see also Dean v. Friends of Pine Meadow, 21 Cal. App. 5th 91, 106 (2018) (citingMontebello, 1 Cal. 5th at 422) (Montebello precludes plaintiffs from using substantive FirstAmendment principles to limit the scope of protection afforded by the anti-SLAPP law.").

Nunes insists that he's suing over conduct, not speech, but the court brushes that off, noting that:

Nunes againprovides a lengthy list of inapplicable cases, by citing unpublished opinions4from Californiacourts. (Id. at 74-75.) Notably, the statute explicitly covers conduct not merely speech. See Cal.Civ. Proc. 425.16(b) (emphasis added) (protecting any act of that person in furtherance of theperson's right of petition or free speech"). Thus, Nunes has no authoritative rebuttal to theconclusion that the alleged behavior giving rise to his claims falls under the protected activity ofthe anti-SLAPP statute.

The court does note that it's possible that Nunes could make a case for stalking under California law that would not be protected by the 1st Amendment... but failed to do so:

Nunes did not provide any corroborating evidence such to satisfy this element of the civilstalking statute. Despite alleging that Meredith posted thousands of statements disparaging andthreatening Nunes on Twitter, a public and freely accessible platform, Nunes did not provide anyof these allegedly offending posts to the Court. (See Doc. 1 at 14.) Nunes did not submit anycommunications or statements by Meredith to corroborate his allegation that Meredith postedthousands of Tweets disparaging Nunes.

Instead, the court notes, the only evidence" Nunes provided actually undermines rather than corroborates his claim."

Specifically, the judge notes the weird attempt to connect the @DevinCow account to Meredith, and claiming it's run by his wife. The court notes that Nunes claims that Meredith's wife was tagged in many of Meredith's tweets, but notably:

Nunes, however, did not submit any of these innumerable" Tweets...

The court also notes that Nunes claims that Meredith is married to the person alleged to be behind the DevinCow account based on Whitepages" but likewise failed to provide this alleged evidence."

But, more to the point, the court notes that the only actual evidence Nunes provided about this supposed harassment and stalking points to Meredith's alleged wife, and not to Meredith himself.

While the 12(b)(6)standard requires the Court to take facts in the light favorable to the plaintiff and makereasonable inferences, it does not require the Court to make illogical leaps.... Accordingly,none of the documentary evidence provided by Nunes connects Meredith to the allegedharassment or stalking. Thus, Nunes has failed to sufficiently plead all explicit elements ofstalking claim

This is the part that the judge allows Nunes to amend, but he would have to present some actual evidence this time to support the allegations.

As to Nunes's stalking claim, if he can submit with his amended complaint, independentcorroborating evidence to satisfy the statutory requirement under California Civil Code 1708.7(a)(1), Nunes may sufficiently state a claim and a probability of success to overcome theanti-SLAPP motion at the motion to dismiss stage. Therefore, amendment as to the stalking claimwould not be futile, and the Court GRANTS leave to amend claim one

The misappropriation claim, on the other hand, has no chance whatsoever.

The basic allegations formingNunes's claim indicate any alleged use of Nunes's name or likeness bears on a public issuebecause Nunes is a politician in the public eye. (See Oppo. to Strike at 67-69; Mtn. Strike at 17-18.) Regardless of any additional facts that Nunes may plead, his current allegations, accepted astrue, revolve around Nunes's role as a political figure. Any misappropriation of his identity orlikeness in this context would fall into the public affairs exception under 3344(d). Thus,amendment of additional facts would be futile to remedy Nunes's commercial misappropriationclaim.

So, this case seems to be on its last legs, but Biss and Nunes get at least one more shot at proving civil stalking.

Of course, should that fail, under California's anti-SLAPP law, Nunes may be on the hook for Meredith's legal fees.