A reporter for McClatchy newspapers who covers Rep. Devin Nunes (R-CA) filed a misleading report this week suggesting that the California congressman can no longer sue Twitter for aiding and abetting defamation against him.
The report was then picked up by several other media outlets, inadvertently echoing the false reporting.
The McClatchy reporter, Kate Irby, wrote on Wednesday in a story with the headline, “Devin Nunes can’t sue Twitter over statements by fake cow, judge rules”:
A judge has ruled that Rep. Devin Nunes has no right to sue Twitter over statements made by a fake Internet cow, someone parodying his mother and a Republican strategist.
… [Judge] Marshall is removing Twitter as a defendant on the case, leaving the case pending against the two parody Twitter accounts and Mair.
Irby also tweeted the story headline “Devin Nunes can’t sue Twitter over statements by fake cow, judge rules,” which Nunes critics retweeted and liked about 6,000 and 22,300 times respectively.
BREAKING: Devin Nunes can’t sue Twitter over statements by fake cow, judge rules https://t.co/JtMpP6NfKs
— Kate Irby (@kateirby) June 24, 2020
Irby’s reporting was referring to a decision by the judge to throw out one negligence charge against Twitter — not to remove Twitter from the lawsuit entirely.
In fact, Nunes is still suing Twitter for “injunctive relief,” meaning that Twitter would be forced to remove the defamatory material against Nunes. That charge against Twitter remains. Nunes is also seeking to add a claim against Twitter for allowing defamation against him.
Nunes’s attorney, Steven Biss, said in a statement blasting Irby’s reporting as “willful” and “shameful”:
Twitter remains a party to this lawsuit. Reports that Twitter was dismissed from the suit are absolutely false. Indeed, the Circuit Court has not ruled on our request for an injunction (Count V) or Congressman Nunes’s request to add a claim against Twitter for aiding and abetting the egregious defamation on its platform.
It is shocking to me that some in the media continue to publish utterly untrue accounts of these cases. In my three decades of practicing law, I have never seen such willful and shameful misreporting as I constantly see about Congressman Nunes’s cases. It’s appalling.
McClatchy itself is being sued by Nunes for its constant attacks against him as a way to drive traffic as the newspaper chain is trying to rebound after filing for bankruptcy.
Irby’s report remains uncorrected. However, it has been cited by multiple news outlets, including Fox News, where Nunes had to correct the record during an interview on Thursday with Fox News’s Martha MacCallum.
He informed MacCallum the story fell into the “fake news category,” when she asked about Irby’s report.
“The Twitter case is still very much alive, and we look to continue to hold them accountable for their negligence. So there are several components to this case, and we look forward to fighting it,” Nunes said.
Irby’s misleading reporting was echoed by the following news outlets:
- After McClatchy posted the misleading report at 1:17 p.m., Business Insider posted around 3:00 p.m. a report that erroneously said, “According to the Fresno Bee, Marshall’s ruling removes Twitter as a defendant in the case”;
- The Hill reported at 5:29 p.m.: “Rep. Devin Nunes (R-Calif.) cannot include Twitter in his lawsuit against two parody accounts and a Republican strategist he accuses of defaming him on the platform, a federal judge ruled Wednesday”;
- Newsweek reported at 7:07 p.m.: “Twitter has been removed from the lawsuit”;
- USA Today reported at 9:43 p.m.: “The judge’s ruling removes Twitter as a defendant in the case…”;
- The Los Angeles Times at 9:57 p.m. posted Irby’s report via the Tribune News Service;
- New York Magazine‘s Jonathan Chait reported: “Nunes has very predictably lost his case against Twitter,” linking to Irby’s report;
- And the Washington Post reported Thursday at 10:23 a.m.: “A Virginia judge dismissed a defamation lawsuit brought by Rep. Devin Nunes…”
The reports are erroneous, since Twitter is indeed still included in Nunes’s lawsuit against the parody accounts and Never Trump Republican strategist Liz Mair, whom Nunes suspects is running an information campaign against him.
Irby did not report positive news for Nunes that also happened on Wednesday, which was that the District Court for the Eastern District of Virginia in a separate Nunes lawsuit against Fusion GPS entered a scheduling order and scheduled a pretrial conference where a trial date will be set, and ordered the case to begin discovery.
That means that Fusion GPS is compelled to hand over relevant documents being sought by Nunes.
Here is a copy of the scheduling order that went unreported:
Irby had also previously reported that Nunes’s case against Fusion GPS was dismissed, but she did not mention that the case could be refiled, which Nunes did. Irby later reported that the case was “active,” in an article that was mainly about a different lawsuit.
Media reporting on Nunes’s lawsuits have followed a familiar playbook, wherein Irby posts a report about Nunes’s lawsuits, which includes first-hand quotes from those Nunes is suing. Irby’s reports — however misleading — are then re-reported by other news outlets.
This playbook played out earlier in June, when Irby in a report implied that Nunes’s lawyer said their defamation lawsuit had hit a “dead end,” when Biss was referring to court action to compel Twitter to cooperate with discovery efforts.
Irby’s June 12 piece was headlined, “Devin Nunes’ attorney says he’s at ‘dead end’ in quest to reveal identity of Twitter cow,” and suggested Nunes was not getting anywhere with the lawsuit:
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-Tulare, 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.
Biss’s comment about being at a “dead end” referred to not being able to serve lawsuits to the creators of anonymous accounts attacking Nunes without action from Twitter, not a “dead end” in the lawsuit or the overall quest to find out the identities of the accounts.
Biss argued to the court, as part of the reason they need Twitter to act, “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 … but we’re at a dead end.”
The “dead end” comments had nothing to do with Nunes’s legal case or actions, but Nunes’s team’s efforts to identify the account creators on its own.
Biss argued, “I would ask the Court to compel Twitter to respond to the remaining aspects of the discovery in this case. And there aren’t that many of them.”
Biss then gave the judge a list of items he was seeking in discovery from Twitter, and agreed to narrow down the list to three items, in order to find out who the fake account creator is and where he resides so that he can be served with a lawsuit.
What the judge will do next and whether he will force Twitter to comply with the discovery push remains under consideration.
However, Irby’s misleading story was re-reported by other outlets.
The Hill reported a piece headlined: “Nunes’s hunt for Twitter cow’s identity at ‘dead end,’ attorney says,” citing Irby’s piece. The Hill piece erroneously attributed Biss’s “dead end” quote to a non-existent interview between Biss and the McClatchy newspaper Fresno Bee. Biss’s comment was made in court, not in any interview.
Newsweek erroneously stated that the judge had thrown out a subpoena from Nunes — which is false. The judge has not made any decision yet on whether to compel Twitter to provide information on the identities of the anonymous accounts attacking Nunes. Nunes’s team has also not filed any subpoenas.
As Breitbart News’s Matt Boyle previously reported:
Irby and McClatchy seem overly focused on anything Nunes says or does, including various lawsuits the California Republican and the ranking member of the U.S. House Select Committee on Intelligence has filed. Since the beginning of the year, Irby—the California congressional correspondent for the newspaper chain—has filed just over 60 stories for McClatchy. Over a third of them, 23 in total, are about Nunes—including 15 separate pieces focused on his lawsuits which include suits against various media outlets like CNN and against McClatchy itself. In the few months leading up to the last time Breitbart News published about Irby and McClatchy when it comes to Nunes, in October 2019, half of the stories she had written were about him.
Irby frequently frames her coverage of Nunes as negative, as well. For instance, when covering his lawsuit against CNN, she wrote that a judge’s decision to move it from Virginia to New York was a “setback.” But she did not cover when the new judge in New York rejected a motion from CNN to stay discovery in that lawsuit.
Irby has also published two stories attacking Biss, who is also representing Nunes in his lawsuit against McClatchy. She has questioned without evidence whether Nunes was doing something untoward to pay for the lawsuits and speculated in a Twitter thread in November that Nunes had been behind another anonymous account putting out positive information about him.
Irby was quickly debunked by others in media, and eventually admitted the theory was not strong.
Boyle also reported how, as McClatchy sought to shift its business model to incorporate foundation and nonprofit funding of local newsrooms, an editor for the Fresno Bee, Nunes’s hometown paper and one of McClatchy‘s newspapers, admitted that hit pieces on Nunes had driven more interest from potential nonprofit and foundation funders than honest news coverage of California politicians.