Devin Nunes – California’s SLAPP-Filer-in-Chief

Rarely does one individual so perfectly demonstrate the need for strong anti-SLAPP laws at both the state and federal level, but leave it to California’s own Devin Nunes to be the poster child for the need for strong protections against SLAPPs.  

In 2019 alone, Nunes filed at least six lawsuits against his critics, one of which earned him the “most ridiculous SLAPP lawsuit of the year” award by Protect the Protest.  Nunes has filed so many lawsuits against his critics in the past few years that Washington Post journalist Dana Milbank recently wrote an opinion piece titled “Raise your hand if you have not been sued by Devin Nunes.”  Here are just a few of the most notable SLAPPs Nunes has filed recently:

• Nunes v. Twitter – an absurd lawsuit where Nunes is not only suing Twitter for allegedly diminishing the reach of conservatives, but also two satirical Twitter accounts (“Devin Nunes’ Cow” and “Devin Nunes’ Mom”) and a Republican strategist who engaged in opposition research against him. Of course, even though Nunes and Twitter are both based in California, he filed the lawsuit in….Virginia…which has a notoriously weak anti-SLAPP law.
• Nunes v. McClatchy – a defamation lawsuit against the parent company of The Fresno Bee, over an article written about a winery in which Nunes is an investor. Of course, even though McClatchy and The Fresno Bee are both based in Sacramento, California, Nunes against chose to file the lawsuit in…wait for it…Virginia!
• Nunes v. CNN – a defamation lawsuit filed against CNN based on a report about Nunes’ involvement in efforts to have Ukraine investigate Joe Biden. The lawsuit was filed in…you guessed it…Virginia!
• Nunes v. Hearst – a defamation lawsuit based on article in Esquire that was filed in…not Virginia! However, Nunes made sure to file this lawsuit in a state with no anti-SLAPP law – Iowa.

These are just a few examples.  Nunes also has filed lawsuits against a watchdog group, Campaign for Accountability, an organic farmer who called Nunes a “fake farmer”, and the Washington Post, which he said is known for its “notoriously libelous reporting.” Somewhat ironic, as the Washington Post’s Dana Milbank pointed out, as Nunes was a co-sponsor of the Discouraging Frivolous Lawsuits Act of 2017. 

So where do all of these lawsuits stand now? It appears that at least five of these lawsuits are still in the court system, while Nunes has withdrawn one of them. Nunes has suggested that he may file more. 

Earlier this month, a United States District Judge in the Northern District of Iowa dismissed one of Nunes’ many SLAPPs.  In that case, Nunes had filed a $75 million defamation lawsuit against Hearst Magazines and journalist Ryan Lizza, over an article Lizza wrote in Esquire, “Devin Nunes’ Family Farm Is Hiding a Politically Explosive Secret.”  Iowa does not have an anti-SLAPP law.  So even though the judge ultimately dismissed this lawsuit, the defendant was not able to recover attorneys’ fees.  Because none of these jurisdictions have strong anti-SLAPP laws, Nunes has essentially been able to continue filing frivolous lawsuits across the country without facing any real cost or punishment for doing so. 

As Mike Masnick wrote in Techdirt, Lizza and Hearst attempted to persuade the court that California’s strong anti-SLAPP law should apply because any reputational damage to Nunes would occur in California.  The court ultimately rejected this argument on procedural grounds for reasons that Mike points out in his post:

“The court…[said]…that standard 12(b)(6) motion to dismiss procedures (and other rules of federal civil procedure) “pre-empt” California’s anti-SLAPP law, since they grant the same basic protections in getting cases tossed out early. That’s an argument that comes up frequently in anti-SLAPP cases. And while it’s true that a motion to dismiss can — at times — serve a similar purpose to an anti-SLAPP motion to strike, there are important procedural differences that protect free speech, including the attorney’s fees award that goes along with most anti-SLAPP laws, including California’s. Unfortunately, here, the court says that cannot apply.”

In addition to the Hearst case, at least four other Nunes lawsuits have been filed in jurisdictions where ant-SLAPP protections are unavailable. As Mike concludes, this is just another reason why we need a strong federal anti-SLAPP law with a fee shifting provision.