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Nunes, Depp lawsuits in Virginia seen as threats to free speech and press

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Rep. Devin Nunes of California was angered by a story in his hometown newspaper detailing a claim that investors in a winery he partly owns partied with cocaine and prostitutes. So the Republican decided to sue - in rural Virginia.

Nunes bypassed the courthouse less than two miles from one of his offices and 10 blocks from The Fresno Bee to file the $150 million defamation claim against its owner 2,600 miles away. He also chose the Old Dominion to file two other recent defamation suits, one naming San Francisco-based Twitter and an anonymous user who has mocked him in the voice of an imaginary cow.

Likewise, actor Johnny Depp sued his ex-wife Amber Heard for $50 million in a northern Virginia courthouse, claiming he was defamed in an opinion article in The Washington Post in which she called for support for domestic violence victims such as herself. Both Depp and Heard live in California. Heard, who came to at least one hearing in the case, said in court filings that she had never previously set foot in the state.

The suits are part of a string of splashy defamation claims by politicians and the A-list star seeking nearly $1 billion in damages in Virginia courts this year, even though many of the cases have only loose connections to the state.

The plaintiffs argue that their names have been smeared and that the venues are appropriate, but several of the defendants - including Twitter and Heard - say the filing location is aimed at exploiting the state's weak protections for defamation defendants. Some legal experts say Virginia law allows those with deep pockets to bulldoze targets with frivolous, protracted and expensive litigation they couldn't pursue in many other states.

The true goals of the suits, the defendants argue, are to stifle critics, blunt aggressive journalism and settle scores. Some deride the legal maneuvers as "libel tourism" and see a growing trend not just in Virginia but in other states that similarly lack safeguards. The suits have prompted Virginia lawmakers to look at changing the law.

Liz Mair, a Republican political consultant who was named in the suits targeting the McClatchy Co. and Twitter for critical comments she made about Nunes on the social media platform, said she feels Nunes has weaponized Virginia's legal system.

"He's using litigation as a cudgel to try to stifle my and apparently quite a few other people's free speech," Mair said. "That is a right protected by the Constitution, which he has sworn an oath to support and defend."

Nunes and his attorney Steven Biss did not respond to numerous requests for comment.

California, where Nunes and Depp might have filed their cases, has one of the nation's strongest protections against lawsuits aimed at silencing critics on topics of public concern, known as Strategic Lawsuits Against Public Participation (SLAPP).

California's anti-SLAPP law allows defendants to file a special motion at the outset of litigation if they feel the lawsuit is without merit and aimed at chilling First Amendment rights on a topic of public interest. If a judge sides with the defendant, the plaintiff is required to pay the defendant's legal fees.

Virginia has an anti-SLAPP law, but there is no special motion provision and defendants are not guaranteed legal fees if a case is dismissed. The practical effect, experts say, is that cases can drag on until the sides begin to exchange evidence and a case goes to trial. That can mean months - or even years - of legal wrangling and hefty legal bills.

Experts said a 2017 move to strengthen protections for defamation defendants in Virginia has not produced a much more robust law.

"I really have not seen the anti-SLAPP in Virginia successfully applied," said Jennifer Nelson, co-director of the University of Virginia law school's First Amendment Clinic. "It does not seem to be working the way it was intended to."

Nunes's opening salvo in Virginia began in March.

He filed a $250 million lawsuit in Henrico County Circuit Court accusing Twitter of censoring him and allowing other users, including Mair and the anonymous operator of a parody account called "Devin Nunes' cow" and another called "Devin Nunes' Mom" to defame him, arguing that the social media platform is biased against conservatives.

"Twitter . . . intended to generate and proliferate the false and defamatory statements in order to influence the outcome of the 2018 Congressional election and to intimidate plaintiff," the lawsuit reads.

The parody accounts poked at Nunes, often with corny, caustic or off-color comments.

"Devin's boots are full of manure," read one of the offending tweets by "Devin Nunes' cow" cited in the lawsuit. "He's udder-ly worthless and its pasture time to move him to prison."

The suit went viral.

In the days after the complaint was filed, "Devin Nunes' cow" gained more than 500,000 Twitter followers - surpassing Nunes's count. The account appears inspired by the fact that Nunes's family owns a dairy farm.

In April, Nunes filed the defamation lawsuit against McClatchy, which owns The Fresno Bee, and Mair, who tweeted the story detailing a lawsuit involving the winery. Nunes accused McClatchy of "character assassination" by publishing the piece headlined "A yacht, cocaine, prostitutes: Winery partly owned by Nunes sued after fundraiser event."

Nunes claims in the lawsuit, filed in Albemarle County Circuit Court, that he was not at the event and not associated with it, so connecting him with it sullied his reputation. The article did not claim Nunes attended the event and said it was "unclear" whether he was affiliated with it. McClatchy says the story was accurately reported.

"The lawsuit represents a baseless attack on local journalism and a free press," McClatchy said in a statement. "At a time when local journalism is facing more pressing and urgent challenges, the lawsuit is an unproductive distraction and a misuse of the judicial system."

Nunes sued CNN in early December, claiming a November news story was "demonstrably false." The piece reported an attorney for Lev Parnas, an associate of Rudy Giuliani who is facing criminal charges, said that his client was willing to testify that Nunes sought dirt on former vice president Joe Biden during a meeting in Vienna with a former Ukrainian prosecutor. Nunes claims in the lawsuit that he never traveled to Vienna in 2018 and did not meet with the prosecutor.

CNN did not respond to a request for comment.

In March, Johnny Depp sued Heard, whose op-ed described the backlash she faced after going public about domestic abuse she said she suffered over a lifetime.

"I felt the full force of our culture's wrath for women who speak out," Heard wrote.

Depp was not named in the piece, but he argues that it clearly implied he was one of Heard's abusers. In his lawsuit in Fairfax County Circuit Court, Depp denies hurting Heard and says he was dropped from the lucrative Pirates of the Caribbean movie franchise as a result of the piece.

Attorneys for Depp did not respond to requests for comment, and Heard's attorney declined to comment.

Nunes and Depp argued that Virginia was a valid location for their suits. Nunes said Twitter, CNN and McClatchy have users and readers in the state, while Mair lived in and worked in Virginia. Depp said The Post is printed in the state, which is also where the newspaper's website servers are housed.

The defendants filed motions to move the lawsuits to California, saying the relevant action had occurred there, not in Virginia. But in each case, a judge ruled that Nunes and Depp met the state's standard for jurisdiction in a defamation case: point of publication of the allegedly defamatory statements. CNN has not yet filed a response to Nunes's lawsuit.

In the Internet age, when defamatory statements are published in multiple jurisdictions at once, many states have moved to a "significant relationship" test to determine what state a case should be heard in. Legal experts said Virginia's standard has helped make it a magnet for defamation cases.

Lee Berlik, an attorney who specializes in defamation in Virginia, said plaintiffs must prove that a defendant made a factually false statement about them to win a defamation case under state law. Opinion and parody are exempt.

Berlik said public figures like politicians and celebrities have a particularly high bar. Those plaintiffs must show "actual malice," meaning defendants made a defamatory statement with knowledge it was false or displayed reckless disregard for the truth. Berlik said such cases are rarely successful.

Berlik said he considered Nunes's lawsuits particularly shaky.

"All appearances are that the plaintiff in these cases has brought the litigation to make a statement or prove a point rather than to obtain compensation for actual harm caused by false statements," Berlik wrote in an email. "The pleadings are full of superlatives and right-wing hyperbole that cause the reader to question the plaintiff's motives."

Mair said she has pro bono representation in her defamation cases, but has started an online fundraiser to cover legal expenses should that situation end.

"This is not the kind of thing people should have to treat as a hazard of the job," Mair said.

The lawsuits have caught the attention of Virginia legislators. Del. Schuyler VanValkenburg, a Democrat, is preparing a bill for the state's next legislative session in January that would seek to put its anti-SLAPP law on par with California's. Defendants would have the opportunity to file a motion to dismiss a case early in litigation if they feel it is frivolous and, if successful, could recover fees from the plaintiff.

"If you have a democracy that works for people, the main thing we can do is make sure everyone has the ability to participate on an equal footing," VanValkenburg said.

Thirty states and the District of Columbia have passed anti-SLAPP laws with varying degrees of protection. There is no similar federal provision. Evan Mascagni, policy director with the Public Participation Project, which is pushing for a federal anti-SLAPP law, said an uneven legal landscape has prompted plaintiffs to "forum shop" their cases.

"As more states are adopting anti-SLAPP laws, we are starting to see clever plaintiffs looking to weaker jurisdictions where they can file these lawsuits and not be subject to anti-SLAPP motions," Mascagni said.


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