Next month, Virginia Democrats assume complete control of the General Assembly for the first time since 1995. Many are expecting legislative action on gun control, the Equal Rights Amendment, repeal of abortion restrictions and increases to the minimum wage.
Another issue is also beginning to draw Democratic lawmakers’ attention, and it has national political implications. It’s the commonwealth’s relatively weak law regarding court actions known as SLAPPs, or Strategic Lawsuits Against Public Participation.
SLAPP lawsuits are typically filed to silence defendants who have exercised their free-speech rights by criticizing another party. Many states’ anti-SLAPP laws, such as California’s, allow such court actions to be thwarted early in the legal process. Virginia’s anti-SLAPP law does not.
The current controversy stems from a flurry of Virginia defamation lawsuits by a California congressman against the California company that owns his hometown newspaper and against Twitter, a Delaware corporation with headquarters in San Francisco.
The congressman is Rep. Devin Nunes, R-California, ranking member of the House Intelligence Committee, and one of President Donald Trump’s most stalwart defenders on Capitol Hill.
Nunes is suing Sacramento-based McClatchy Co., which owns The Fresno Bee, in Albemarle County Circuit Court for $150 million. Another defendant in that lawsuit is Liz Mair, a Virginia-based Republican political consultant who has also criticized Nunes.
In Henrico County Circuit Court, Nunes is suing Twitter and the parody Twitter accounts Devin Nunes’ Cow and Devin Nunes’ Mom for $250 million. Recently on Fox News, Nunes threatened to file some more lawsuits against other news organizations. It’s unclear whether those will be Virginia actions, too.
The lawsuits argue that Virginia is a proper venue because both McClatchy news and Twitter circulate online in the commonwealth.
Sen. John Edwards, D-Roanoke, who will chair the Senate Courts of Justice Committee in the 2020 legislative session, said he’s already hearing from lawyers who want Virginia’s anti-SLAPP law strengthened in the wake of Nunes’ actions.
One is Roanoke lawyer Mark Cathey, chairman of the Roanoke School Board. He emphasized he was speaking for himself and not for the board.
“Our courts shouldn’t be taken advantage of this way,” Cathey told me regarding Nunes’ lawsuits.
A Virginia lawmaker who’s urging legislative action is Sen. Scott Surovell, D-Fairfax. As an attorney, Surovell represents Adam Parkhomenko, a Democratic strategist whom Nunes has subpoenaed in an effort to learn the identity of the person behind Devin Nunes’ Cow, a Twitter parody account that has lampooned the congressman.
Surovell called Nunes “a serial SLAPP abuser” and added, “There’s no question he specifically forum-shopped this SLAPP lawsuit [against Twitter] in Virginia.”
Basically, California’s anti-SLAPP law allows defendants to strike down lawsuits before much litigating occurs, when the original complaint stems from defendants exercising their free-speech rights. That can save defendants time and money.
Virginia’s current statute contains no similar provision, although it does allow that courts “may” award defendants attorney fees in SLAPP lawsuits that are ultimately struck down.
In Virginia, “extremely wealthy people like Devin Nunes and others can torture little guys with pleadings” that have to be responded to by lawyers, Surovell told me. There’s no guarantee defendants who win can recover their costs.
“It’s outrageous what Nunes is doing here in Virginia,” Edwards told me Friday. “The General Assembly needs to look at the existing law and see whether it needs to be strengthened.”
Steven Biss, the Charlottesville attorney representing Nunes in the lawsuits, did not return a voicemail message I left Friday seeking comment. Mair did not respond to an email I sent her Friday.
In the lawsuit against McClatchy and Mair, Nunes charges, “This is a case about character assassination and a public company that weaponized its powerful pen and used it as a terrible sword.”
That lawsuit focuses on a May 2018 article in The Fresno Bee headlined “A yacht, cocaine, prostitutes: Winery partly owned by Nunes sued after fundraiser event.” The article reported on another lawsuit, filed in California against a company in which the congressman held an interest. The article didn’t allege Nunes was present for the yacht party or that he knew anything about cocaine and prostitutes alleged to have been there.
In the action against Twitter and the parody accounts, Nunes’ claims the social media service “allowed (and allows) its platform to serve as a portal of defamation in order to undermine public confidence in Plaintiff and to benefit his opponents and opponents of the Republican Party.”
Both lawsuits are also seeking 6% interest on whatever Nunes is ultimately awarded, dating retroactively to a year before the actions were filed.
But 6% of zero still equals zero. Surovell suggested that’s the amount Nunes is most likely to collect in the lawsuit against Twitter and its parody accounts.
Anonymous political commentary “has been around since the beginning of time,” Surovell told me, noting that Alexander Hamilton, James Madison and John Jay wrote “The Federalist Papers” under the pseudonym “Publius.”
Courts have also held that heaping ridicule upon public figures isn’t actionable when that occurs via parody.
That ruling’s roots are right here in western Virginia, where a federal jury in 1988 ordered Hustler Magazine to pay the Rev. Jerry Falwell $150,000 for intentional infliction of emotional distress stemming from a parody ad. Waggishly, it suggested Falwell lost his virginity to his mother in an outhouse when they were both drunk.
The U.S. Supreme Court later overturned the jury award, 8-0, ruling that nobody could ever have taken the ad seriously.
Surovell mounted a similar argument in a court filing seeking to quash Nunes’ subpoena against Surovell’s client, Parkhomenko.
“No reasonable person would believe that Devin Nunes’ cow actually has a Twitter account, or that the hyperbole, satire and cow-related jokes it posts are serious facts,” Surovell’s filing argued.
Surovell also noted that Nunes’ lawsuit has astoundingly elevated the fake Twitter account’s profile. Before the lawsuit, Devin Nunes’ Cow had fewer than 1,000 Twitter followers. As of Friday, its followers numbered more than 671,000.
Nunes, meanwhile, has amassed a campaign war chest of more than $7 million — greater than any other House incumbent.
Could that be the real reason a California congressman is filing lawsuits against California entities in Virginia courts?