When Are Lawsuits Frivolous?

Lawsuits are used to resolve private conflicts, but they can also serve important social interests. Victims of irresponsible behavior hope that their lawsuits will change behavior. For example, jurors in Oklahoma recently made clear that they intended to send a message to Aetna by awarding more than $25 million to the family of a cancer patient who was wrongfully denied insurance coverage.

Successful lawsuits against companies that market dangerous drugs or cancer-causing products may influence the behavior of corporations. Even if the cost of defending lawsuits and paying judgments is less than the cost of making a product safer, the adverse publicity that attends irresponsible corporate conduct might force corporations to respond to shareholder and societal concerns about consumer safety.

While changing unlawful behavior is an important benefit of litigation, using lawsuits to punish lawful behavior is not. The line between permissible and impermissible reasons for filing lawsuits is highlighted by Rep. David Nunes’ recent lawsuit against Twitter.

Frivolous Litigation

Industries that are subject to “message-sending” litigation often criticize lawsuits as frivolous. Whether a lawsuit is frivolous, however, usually depends not on whether it is intended to send a message but on whether it has legal merit. Federal law requires a legal claim to be supported by “existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” Most states have adopted a similar standard to assure that lawsuits have legal merit.

A lawsuit may also be frivolous if it is filed “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” Sending a message is not generally regarded as an improper purpose if the lawsuit that sends the message has legal merit and is not filed to harass the defendant.

The lobbyists for corporate defendants and their congressional champions often argue in favor of a stricter definition of frivolous litigation. One of those champions, David Nunes, recently co-sponsored the Discouraging Frivolous Lawsuits Act. As is often true of legislation, the name of the Act had little to do with its true purpose.

The proposed law would have amended the Clean Water Act to require the losing party in citizen suits against allegedly polluting companies to pay the prevailing party’s legal fees. Current law requires the polluting industry to pay the legal fees incurred by prevailing plaintiffs but does not require plaintiffs to pay the defendant’s legal fees when the defendant prevails.

Fee-shifting statutes make it possible for ordinary people to challenge large corporations by bringing lawsuits to vindicate important interests that plaintiffs could not otherwise afford. The Discouraging Frivolous Lawsuits Act was likely intended to discourage all lawsuits against polluters by placing citizens who act in the public interest at risk of incurring liability for enormous fee awards if they lose the lawsuit.

Losing a lawsuit is not the same as filing a lawsuit that is unsupported by law and therefore frivolous. A lawsuit can have legal merit even if a judge or jury disagrees that the facts are sufficient to prove liability. Since most members of Congress understand that distinction, it is not surprising that the bill died in committee.

Nunes’ Lawsuit Against Twitter

Having taken such an aggressive stance against lawsuits that he defined as frivolous, it might seem surprising that Congressman Nunes has filed a “message-sending” lawsuit that seems largely devoid of legal merit.

Rep. Nunes sued Twitter, two anonymous Twitter account holders (@DevinNunesMom and @DevinNunesCow), and account holder Elizabeth Mair. Mair is a communications consultant who has worked for Republican candidates and the 2008 Republican National Convention.

The complaint alleges that the account holders made defamatory comments about Rep. Nunes and that Twitter “created and developed” their content by “shadow-banning” conservatives and censoring viewpoints with which it disagrees. The lawsuit accuses Twitter of enabling and failing to police defamatory comments about Nunes.

The claim that Twitter shadow-bans conservatives has been aggressively advanced by some conservatives, but Twitter denies the practice and there is a dearth of evidence to support the accusation. The shadow-bans and censorship claims are at best debatable, but it is difficult to understand what Rep. Nunes thinks a court can do about it.

Twitter is a private business, not subject to the First Amendment, and is therefore entitled to censor anyone it pleases as long as it does not discriminate on the basis of sex, race, or other attributes that are protected by law. As long as Twitter’s content is lawful, it can host any content it likes and can choose not to host content it dislikes. Twitter argues that it is politically neutral, but even if it is not, no court can force Twitter to host content.

Rep. Nunes told Fox News that Twitter is not a “public square,” as Twitter claims, but is a “content developer.” He presumably made that distinction because Congress has immunized internet providers from defamation claims when the provider merely publishes content that was created by someone else. Since Twitter did not create the content that Twitter users tweeted, it is difficult to see how Twitter could be held accountable for the views expressed by its users.

So what does Rep. Nunes hope to accomplish by discussing doubtful notions of shadow-banning and censorship in his lawsuit? Nunes admits that he is trying to send a message about what he regards as “fake news.” He told Fox News that this lawsuit is “the first of many” although he did not identify the potential defendants in any lawsuits that may be on the horizon. But sending a message in a lawsuit that has no legal merit may well constitute frivolous litigation.

Law of Defamation

Rep. Nunes alleges that he was the victim of defamation. Since Rep. Nunes is a public official, Rep. Nunes’ critics are only liable for defamation if they made false and derogatory statements about him with actual malice. That standard is very difficult to meet.

In addition, only false statements of fact can be defamatory. Expressions of opinion, even when expressed in hyperbolic or outrageous language, are protected by the First Amendment. When a statement’s language or context demonstrates that it is intended to ridicule or vilify a public official, readers are expected to understand that the statement is meant as opinion, not as fact.

The lawsuit cites some tweets that clearly express opinions, such as the suggestion that Rep. Nunes brought shame upon his family. Some tweets are plainly satire and are not intended to be taken seriously, including the claim that Rep. Nunes was voted “Most Likely to Commit Treason” in high school. There is no legal basis for concluding that those tweets are defamatory.

In addition, truth is an absolute defense to defamation. Some of the tweets about which Rep. Nunes complains (including the fact that he voted in favor of certain bills) are undeniably true. Some of the tweets, including those that accuse the Congressman of obstructing an investigation into the president, are commentary on the Congressman’s political performance. The right to criticize public officials is at the core of First Amendment protection.

Is the Lawsuit Frivolous?

A few tweets cited in the lawsuit come close to crossing the line. Tweets about Rep. Nunes’ involvement with prostitutes and cocaine are based on newspaper stories that disclosed his investment in a winery that allegedly held an event on a yacht where cocaine and prostitutes were present. While some of the tweets appear to suggest that the Congressman was personally involved with cocaine and hookers, a court might well regard them as satirical given the widely reported news stories linking Rep. Nunes to the business that hosted the parties.

Had Rep. Nunes limited his lawsuit to tweets that might fairly be regarded as defamatory, a court might take the lawsuit seriously. It may be difficult for a court to do so given the lawsuit’s unsupported references to “shadow banning” and its inclusion of Twitter as a defendant. Whether Rep. Nunes has a hope of winning a judgment against the anonymous tweeters is doubtful, but there is no obvious theory under which he can win his claims against Twitter. Those claims are likely frivolous.

The court may also decide that the lawsuit is intended to harass the Congressman’s critics by making them incur legal fees to defend themselves. Litigation that is meant to harass is frivolous by definition.

The lawsuit was filed in a Virginia state court. The court will need to consider whether the lawsuit violates Virginia’s anti-SLAPP law, which is designed to “discourage frivolous lawsuits against people based on their speech.” Ironically, the anti-SLAPP law allows prevailing defendants to collect attorney's fees. Rep. Nunes may therefore be facing a large award of fees for filing frivolous litigation, exactly the remedy he advocated as a means of discouraging lawsuits against alleged polluters.

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