WASHINGTON _ Rep. Devin Nunes' lawsuit against social media giant Twitter is scheduled for its first hearing in a Virginia courtroom on Friday, and it might be its last.
Experienced defamation lawyers in Virginia say Nunes, a California Republican, could face trouble keeping the case alive against the San Francisco-based company in their state for two reasons:
It's unclear what specific activity happened in Virginia to warrant consideration of the case there, and Nunes accepted a user agreement that committed him to suing Twitter in California in most circumstances.
"Those (agreements) are generally held to be binding," said Tom Albro, a longtime Virginia defamation attorney.
Nunes' Twitter case was the first of three lawsuits in which he argues that activists conspired to damage his reputation in 2018, to harm his chances at reelection and to obstruct his ability to lead the House Intelligence Committee. He won reelection last year against Fresno prosecutor Andrew Janz, but by a closer margin than usual.
The Twitter case alleges that the company "shadowbanned" Nunes' social media posts, meaning he believes the company diminished the reach of his public messages. He also alleges in the case that Twitter allowed Republican political strategist Liz Mair and two parody Twitter accounts authored by anonymous writers to defame him.
The parody accounts, known as Devin Nunes' Cow and Devin Nunes' Mom, remain anonymous five months after Nunes sued them, although their influence has swelled. Each previously obscure Twitter account now has legions of followers, and each is urging its followers to support Nunes' political adversaries.
Mair, a former Virginia resident, and the writers behind the parody accounts are not expected to attend the hearing. Breitbart, the conservative online news site, has reported that Nunes plans to be in court.
In its initial motion to dismiss, Twitter focused on Nunes' filing in Virginia rather than on his substantive allegations.
"All claims against Twitter should be dismissed for lack of personal jurisdiction and improper venue," lawyers for Twitter wrote.
Outside of court filings, Twitter has challenged Nunes' contention that its platform was biased against him.
"Twitter disputes the claims raised by Congressman Nunes," a Twitter spokesperson said. "We enforce the Twitter Rules impartially for all users, regardless of their background or political affiliation. We are constantly working to improve our systems and will continue to be transparent in our efforts."
Nunes' complaint argues the case can be tried in Virginia because extensive activity by Twitter occurs in the state. Twitter counters that it does not have an office there and any argument made for why the case should be heard in Virginia could be applied to any state in the U.S.
Lee Berlik, a veteran Virginia defamation attorney, said Twitter likely will succeed in having the case dismissed because courts have generally ruled corporations need to be sued in their "home" states.
"Twitter can probably only be sued in Virginia on causes of action that arise out of specific activity conducted in Virginia," Berlik said. "Nunes' lawsuit does not appear to me to be based on any such activity, so I would expect the court to allow Twitter out of the case."
If it is dismissed, Nunes would be free to file the complaint somewhere else and restart the process.
If he files in California, he'd encounter laws discouraging frivolous lawsuits that would allow Twitter to demand that he prove his lawsuit has merit. If a California judge finds the case to be frivolous, Nunes could be responsible for Twitter's legal fees.
"That difference in state law seems to be the only reason Nunes brought his case in Virginia," Berlik said. "If the court finds that Nunes intentionally filed his case in an inconvenient forum solely to evade an unfavorable California law, the court will likely find good cause for dismissal."
There's a possibility the court will transfer the case to a venue it feels is more appropriate rather than outright dismissal, according to Albro, but that's unlikely.
"Usually a judge will essentially say, 'You have no business in my court, go figure it out,'" Albro said.
If the court allows Nunes' case to move forward, the congressman will be able to request information from Twitter and the other defendants through the discovery process.
Twitter requested a protective order so it did not have to respond to discovery requests until after the hearing and it has not complied with discovery requests in the meantime. Nunes' lawyer, Steven Biss, disputed that request.
Nunes' discovery requests appear to be focused on proving Twitter does extensive business in Virginia, on identifying Mair's clients and on identifying the authors of the parody Twitter accounts.
Biss, Nunes and the other defendants either did not respond or declined requests for comment.
In a separate case, Nunes in Virginia is suing Sacramento-based McClatchy alleging that The Fresno Bee defamed him in a news article focused on his partnership in a winery that was the subject of an employee's lawsuit. McClatchy intends to fight the case and has called the lawsuit a "baseless attack on local journalism and a free press."
Nunes filed the final case in Tulare County Superior Court, where he is suing four Californians who challenged his description of himself as a farmer on ballots that went to voters last year. Nunes won the challenge, and was allowed to refer to himself as a congressman and farmer on ballots.
