West Coast Observer: A slap against Devin Nunes

By William Silveira

The title of a March 14 article in the Washington Post asks its readers to “Raise your hand if you have not been sued by Devin Nunes,” implying, of course, that Congressman Nunes has sued a lot of people. Columnist Dana Milbank states that “The top Republican on the House Intelligence Committee has, aided by a lawyer with a colorful past and a flair for invective, sued just about everybody who criticizes him.” Everybody who criticizes him. Well, that includes me, and he hasn’t sued me yet, so I guess I need to raise my hand. Or, maybe I’m next.

    Anyway, according to a post in “The Virginia Defamation Law Blog,” by the large litigation firm BerlikLaw, many lawsuits for defamation filed by public figures are SLAPP lawsuits – Strategic Lawsuits Against Public Participation. The cost of defending such lawsuits chills the free expression of opinion. California and a number of other states have “anti-SLAPP” laws designed to facilitate the identification and early dismissal of frivolous SLAPP suits.
    The BerlikLaw post states that “A flurry of defamation lawsuits filed in Virginia by California congressman Devin Nunes inspired the introduction of House Bill 759, designed to bring Virginia’s anti-SLAPP law more into line with California’s more robust First Amendment protection.”
    In California, a plaintiff in an anti-SLAPP special motion to dismiss can collect attorneys’ fees in connection with a successful motion. The article goes on to note that attorneys’ fees are normally not recoverable in defamation actions, so moving-to-dismiss can be a powerful deterrent against meritless lawsuits for defamation brought by public figures.
    It should be further noted that under old and established law, as set forth in New York Times v. Sullivan (1963), defamatory comments against public figures must not only be shown to be false but also made with actual malice – that is, with knowledge that the comments were false or uttered with reckless disregard as to whether they were true or not. (The truth of the comments would be an obvious defense.)
    Of course, if you’re a California resident forced to defend yourself in a lawsuit brought in Virginia, you would be obligated to file pleadings in a distant forum and would probably expend money on attorneys’ fees for legal representation. So, House Bill 759, to bring Virginia’s anti-SLAPP law more into line with California’s, would help a lot.

On a concluding note, during the federal government’s early confusion about what to do in the face of the COVID-19 threat, Devin Nunes urged people to go out to restaurants and pubs and enjoy themselves notwithstanding the contrary sound advice that was being given by public health figures (and even Trump himself, by then). Or, as Dana Milbank puts it, “[Nunes] generally sues for defamation, but nobody could make [him] look worse than his own lawsuits do.”

Copyright © 2020 by William Silveira