Republican California Rep. Devin Nunes filed a lawsuit against Twitter Monday, much to the joy of MAGA Twitter. However, Rep. Nunes’ lawsuit should be treated with extreme skepticism by conservatives who want to fight back against tech censorship.
The influential Republican’s lawsuit alleges that Twitter “shadow bans” conservatives and allowed for a “defamation campaign” to be waged against him. Besides Twitter, Nunes is also suing anti-Trump Republican Liz Mair and the all-powerful Twitter accounts @DevinNunesMom and @DevinCow.
According to the lawsuit, these accounts spread vicious attacks against Nunes and Twitter did nothing about them. Nunes’ lawsuit claims these tweets amounted to illegal “insulting words.” His lawsuit also cites the fact that his account was hidden by Twitter’s search engine for part of 2018 as an act of election interference.
The lawsuit seeks $250 million in damages from Twitter and the accounts cited in the complaint.
This lawsuit may seem great to Trump supporters at first glance, but closer examination reveals it to be unwise.
Nunes’ core argument is that Twitter needs to censor more content, especially “hateful” content. As the lawsuit states, Twitter “knowingly hosting and monetizing content that is clearly abusive, hateful and defamatory — providing both a voice and financial incentive to the defamers — thereby facilitating defamation on its platform.”
If Nunes’ case advances, Twitter will be pressured to censor more content that is deemed “hateful” by people with power. Expect more liberal journos to whine that Twitter does nothing about the mockery they suffer at the hands of groyper accounts thanks to Devin Nunes.
This lawsuit is filed on silly grounds. Nunes is irate that parody accounts called “Devin Nunes Mom” and “Devin Nunes Cow” were able to insult him without consequence. Welcome to the public sphere, congressman. No conservative should cheer a powerful public official feeling he has the right to be free from criticism.
If the claims made by Liz Mair and the cow are libelous, then Nunes should sue them. But Twitter is protected by Section 230 of the Communications Decency Act from these kinds of lawsuits.
Section 230 immunizes large tech platforms from publisher liabilities because they (supposedly) offer a “forum for true diversity of political discourse.” While Twitter of course is no longer acting as such a forum, it takes legislation to change those rules, which would be a much better use of Nunes’ power.
The point of Nunes’ lawsuit is to make Twitter abide by the rules of a publisher rather than a platform, which would be terrible for conservatives. If these tech giants acted like publishers, they would suppress free speech to a much greater extent.
Tech giants have pretended to act as publishers to defend their censorious policies. In its legal defense against PragerU’s lawsuit against YouTube, Google claimed its subsidiary has the publisher’s right to “the exercise of editorial control and judgment.” That means YouTube thinks it can censor whoever they want and on whatever grounds they choose. At the same, Google’s legal defense argued the tech giant was protected from publisher liability claims by Section 230.
Tech giants are willing to see themselves as publishers when it benefits them. What conservatives should demand from Big Tech is the acknowledgment that they are not traditional publishers and that they must abide by different rules.
Lawsuits like PragerU’s and Meghan Murphy’s case against Twitter seek to do this. Nunes’s lawsuit does not.
Nunes can do something about Big Tech censorship as a lawmaker. While the chances are low the GOP could pass a bill now, Nunes enjoyed the power to push such legislation when his party had the majority in the House. He could also have demanded the FCC, FTC, and DOJ look into social media censorship. But Nunes was more focused on attacking Jeff Sessions than protecting conservative free speech.
There are plenty of ways conservatives can fight back against tech censorship. Sens. Josh Hawley and Ted Cruz have both proposed examining Section 230 and revamping it to better protect free speech. PragerU, Meghan Murphy, and others are continuing to fight against tech censorship in the courts. President Trump and his surrogates still recognize tech censorship as a major problem and the president promised on Tuesday to look into this issue.
Those are all positive actions conservatives should support. Nunes’ lawsuit only hurts our cause and makes it appear frivolous.