RICHMOND, Va. _ The attorney for Rep. Devin Nunes said on Friday that he is at a "dead end" in attempting to identify anonymous people who criticize the California Republican on Twitter as he asked a Virginia judge to hold the company responsible for social media criticism.
Nunes, R-Calif., filed a lawsuit against Twitter last year alleging he was defamed on Twitter by Republican political strategist Liz Mair and the writers behind anonymous social media accounts that call themselves "Devin Nunes' Cow" and "Devin Nunes' Mom."
Nunes' attorney and lawyers for Twitter were in court on the social media company's motion to dismiss the case. The San Francisco-based company argues it is protected from lawsuits like Nunes' under a federal law that says social media companies like Twitter are not liable for what people post on their platforms if they don't have a hand in creating the content.
Nunes' attorney Steven Biss said that Twitter should not qualify for immunity under the law, known as Section 230, contending it treats Nunes unfairly.
"They're doing more than allowing Liz Mair, the cow and the mom to post a tweet," Biss said. "They're censoring, they're promoting an anti-Nunes agenda, they're banning conservative accounts and they're knowingly encouraging it."
Judge John Marshall did not issue a ruling on Twitter's motion. He raised pointed questions about Nunes' arguments, citing the federal law that broadly protects social media companies from defamation lawsuits.
Even if Twitter had done what Nunes alleged, the immunity provided by Section 230 does not depend on whether Twitter is a neutral site, Marshall said.
"I don't know of any requirement in the law that says these sites have to be neutral," Marshall said. "Just because you don't like it and asked to have them take it down, doesn't mean they're liable if they don't take it down."
Patrick Carome, an attorney for Twitter, argued that Biss wanted Marshall to carve out an exception for Twitter in the law, which is up to Congress, not the courts.
"Mr. Biss is asking the court to enact a new law," Carome said. "And if he wants a new law, well, Mr. Nunes is a congressman."
President Donald Trump in late May issued an executive order challenging the law after Twitter placed a fact-checking message on one of his tweets. Twitter has flagged another Trump tweet on protests over police killings of unarmed black men "as one that "violates our policies with regard to the glorification of violence."
Congress created the law in 1996 and courts have upheld it.
Biss submitted Trump's executive order as part of Nunes' case, but Marshall was quick to shoot down the legal weight of Trump's order in the courtroom, saying, "that doesn't change the law."
Nunes, a congressional ally of Trump, has filed seven lawsuits since last year alleging that various news media companies and activists have defamed him. He is suing CNN, The Washington Post and The Fresno Bee, alleging that news stories they published defamed him.
The news organizations have filed motions to dismiss the lawsuits or move them to California, where Nunes lives.
Sacramento-based McClatchy, the parent company of The Fresno Bee, has called Nunes' lawsuit against the news organization a "baseless attack on local journalism."
Nunes' lawsuit against Twitter alleges the anonymous writers conspired to damage his reelection bid in 2018. He won the race against Democrat Andrew Janz, but by the narrowest margin of his political career.
The anonymous accounts have grown massive audiences since Nunes filed a lawsuit against them. The cow account, @devincow, has more than 700,000 people following messages that mock the congressman as "treasonous cowpoke." It had about 1,000 before the lawsuit.
Biss argued that Twitter must release information about the accounts' authors in order for the case to go forward, because he doesn't know the identities of the anonymous authors. Without knowing their identities, he could not serve them with lawsuits, he said.
"We're trying to figure out who they are, and we read the comments on Twitter, as painful as it is, we do that every day," Biss said. "But we're at a dead end."
