by Paul Alan Levy
In pursuit of his frivolous libel suit against Devin Nunes’ Cow and other defendants in Henrico County, Virginia, Congressman Devin Nunes has served subpoenas on Twitter, on a local political consultant, and on a Richmond law firm, demanding information that would provide the identity of the owner of the Devin Nunes’ Cow account. Nunes is not, so far as we can tell, pursuing his subpoena to Twitter, because the Virginia Supreme Court held in the Hadeed case a few years ago that Virginia plaintiffs cannot assert subpoena jurisdiction over out of state companies to obtain identifying information; and the consultant, so far as we know, does not have any identifying information (although his motion to quash the subpoena is highly entertaining). But the Richmond law firm may well have that information, so this morning Public Citizen, along with the ACLU and the ACLU of Virginia, is filing a brief as amicus curiae in support of the law firm's own motion to quash, arguing that enforcement of the subpoena to identify Devin Nunes’ Cow would violate the First Amendment.
In that regard, we are taking up the unfinished business from Yelp, Inc. v. Hadeed Carpet Cleaning. Yelp had two arguments in the Virginia Supreme Court – lack of subpoena jurisdiction, and the First Amendment right to speak anonymously. In ruling for Yelp on the first question, the Virginia Supreme Court was able to postpone for another day the decision on the second question (the Virginia Court of Appeals had ruled against Yelp on the First Amendment issue; that ruling was vacated by the state supreme court). Our amicus brief argues that because Nunes has sued over rhetorical hyperbole and because he has presented no evidence that any factual statements his Twitter detractors may have made against him are false, his effort to use judicial power to compel the disclosure of Devin Cow’s real name runs headlong into the First Amendment. It was a Public Citizen amicus brief, joined by the ACLU that first proposed the Dendrite standards in Dendrite International v. Doe. We have been pursuing that issue from state to state ever since.
Virginia has never decided whether it will follow the roughly dozen states whose courts demand valid legal claims and evidence of wrongdoing before they will compel identification of anonymous critics, but our brief also addresses this anomaly: California, where Nunes lives, follows the Dendrite standard (or, more precisely, the Doe v. Cahill variation on Dendrite, adopted in another case where we had teamed up with the ACLU to file an amicus brief on this issue). Why should Nunes be allowed to take his libel claims to Virginia, to pursue an anonymous critic who may well herself be in California (her parody name has her living on the Nunes family farm), and yet fail to follow California law?
This aspect of our brief points to the disturbing pattern of libel tourism by Nunes, who has plainly decided that Virginia provides a more hospitable forum in which he can harass his critics through frivolous libel litigation. Another major difference between the two states is that California has a vigorous anti-SLAPP law, while Virginia’s is very weak. It is my view that the California SLAPP law should follow Nunes to Virginia under proper choice of law principles, but that problem may well be alleviated in the Virginia legislature this coming year – a new, strong anti-SLAPP bill is being offered, and we can hope that Virginia’s elected officials will save the Commonwealth from having its reputation sullied as the preferred venue for libel tourism, a status that London had suffered until recent changes in the law there.