Devin Nunes, Johnny Depp inspire Virginia proposals to crack down on harassing lawsuits

California Congressman Devin Nunes’ legal campaign against the organizations he perceives to be his adversaries is lending momentum to a proposed state law 3,000 miles from his home district that could restrict harassing lawsuits.

Virginia lawmakers say the cluster of lawsuits Nunes filed against media companies in their state last year is among the reasons they’re advancing proposals that would make it easier for courts to dismiss cases that have the potential to deter free speech.

Two of the lawsuits Nunes, R-Tulare, filed — one against San Francisco-based Twitter and another against Sacramento-based newspaper publisher McClatchy — challenge companies that have headquarters in his home state.

That geography has Virginia lawmakers revisiting questions about why powerful people from out of state have chosen to file civil lawsuits there. Another high-profile case involves actor Johnny Depp, also a California resident, suing his ex-wife in Virginia over a piece she wrote in The Washington Post.

“The Nunes situation has gotten outrageous, but I don’t think anyone questions that Virginia has become a haven for SLAPP defamation suits,” said Scott Surovell, a state senator representing the Fairfax area, using an acronym for harassing lawsuits that stands for strategic lawsuit against public participation. “The problem is how to fix it without overhauling Virginia court procedures.”

SLAPP laws in other states

States like California have laws on the books that allow people to obtain early dismissal of un-meritorious lawsuits that have the potential to chill free speech. Judges also can order that all of a defendant’s legal fees have to be paid by the person who filed the lawsuit.

That’s important because even if a lawsuit is eventually dismissed, powerful people can use the courts to drive up attorney costs with exorbitant discovery requests and delay tactics.

Forcing those who file a SLAPP lawsuit to pay those punishing attorney fees for the defendants not only deters them from filing them in the first place, but also encourages more lawyers to take on the work without a large payment up front from defendants, Virginia lawmakers have said while advocating for the new legislation.

Twenty-eight states plus the District of Columbia have laws on the books discouraging lawsuits that can chill free speech, according to the Digital Media Law Project.

Nunes filed six lawsuits in 2019 against Twitter, news organizations, journalists, a left-leaning advocacy group, an investigative research firm that worked for Hillary Clinton and anonymous people who criticize him on social media with the satirical online identities “Devin Nunes’ Cow” and “Devin Nunes’ Mom.”

In each case, Nunes alleges his adversaries conspired to defame him or harm his reputation. He filed four of the cases in Virginia, and three of those remain active.

Devin Nunes’ lawsuit against Trump research firm dismissed by Virginia judge

Surovell, the state lawmaker, is an attorney defending Adam Parkhomenko, a Democratic political strategist, against a subpoena Nunes issued demanding information in Nunes’ lawsuit against Twitter. Nunes is not suing Parkhomenko, but the Democrat had to hire attorneys to challenge the subpoena.

The Virginia proposals would both put in a system for not only dismissing SLAPP lawsuits more quickly, but also making those who file them pay for defendants’ attorney fees, like in California.

Two bills in Virginia

Bipartisan lawmakers voted to advance the bills earlier in February, but there are differences between the House and Senate versions that need to be resolved before it becomes law, which Surovell and Democrat Virginia Delegate Schyuler VanValkenburg, the House bill’s author, give “about a 50/50 shot.”

“I think the odds of getting a bill that improves on the situation are better than 50/50, but the chances of getting a strong bill that we feel would significantly help is about 50/50,” said, VanValkenburg, a civics teacher who represents the area where Nunes filed his suit against Twitter.

The bill’s opponents worry that defense attorneys will use a new law to try to dismiss lawsuits that have merit and make it more difficult to file legitimate cases.

Dismissal procedures in Virginia courts currently include a narrow procedure called a demurrer, which assumes that even if all the plaintiff’s claims in the original complaint are true, he or she still doesn’t have a case under Virginia law. Twitter has filed one against Nunes in its case, arguing that under federal law Nunes cannot sue it for tweets by a third party.

That process doesn’t allow the person filing for dismissal to submit any additional evidence in that might support a dismissal.

With the new bills, some say the dismissal process should allow for more input from defendants to prove to a judge that the lawsuit lacks merit and can harm free speech. Others say changing the dismissal process would overhaul the Virginia code and would be going too far.

That issue has spurred the differences in the House and Senate versions of the bill.

“The challenge of crafting a strong anti-SLAPP law is getting these cases meant to bully people thrown out quickly while still allowing legitimate suits to go forward,” said Alison Friedman, whose group Protect the Protest has given legal assistance to people faced with harassing suits. “Vagueries are to the benefit of the bully.”

Black Lives Matter among previous targets

VanValkenburg said while the Nunes suits are a “bright shiny object” that called people’s attention to the issue, Virginia has been well known as a safe harbor for SLAPP lawsuits by more wealthy people trying to silence criticism.

Those suits have also been used against people in Virginia alleging sexual assault and harassment and against Black Lives Matter activists by filers who are “exploiting a power differential,” according to Friedman.

But even though he’s a partial inspiration, Nunes’ current legal opponents would not benefit from the bill. The law, if passed, will not apply to court cases already on the books, according to VanValkenburg.

“I just don’t think we can apply a new law to cases that were already filed,” said VanValkenburg.

Twitter has tried to recoup fees from cases filed by Nunes’ lawyer, Steven Biss, even without the new law.

Biss recently issued a subpoena to Twitter demanding information about the anonymous writer behind the Devin Nunes’ Cow account.

Nunes is suing that account in Virginia, but Biss put forward the subpoena in an entirely different lawsuit that does not involve Rep. Nunes.

Twitter called the subpoena “defective and unlawful,” and likened it to “gamesmanship” for Nunes’ lawsuit against the anonymous social media user, where Nunes has been unsuccessful in his efforts to identify the cow account’s writer.

“This demand cannot be explained except as an effort to evade the usual discovery process in an entirely separate action that Mr. Biss has brought on behalf of another party (Nunes) against Twitter and @DevinCow,” Twitter attorneys wrote in the Feb. 4 motion.

The judge in that case has not yet weighed in on that request. Meanwhile, dismissal attempts in other Nunes lawsuits have continued, with Virginia judges allowing limited discovery, continuing attorney costs for all involved.

The last day of the Virginia legislative session is March 7, and VanValkenburg said the bill’s passage is likely to come down to the last few days. If a bill manages to pass, he says he’d be “shocked” if the governor didn’t sign it, and the bill would take effect July 1.