COW OF THE CONGRESS*
BULLISH ON PARODY, THE FIRST AMENDMENT PROVIDES BALANCE TO MR. NUNES’ ABSOLUTE IMMUNITY UNDER THE SPEECH AND DEBATE CLAUSE FOR DEFAMATORY STATEMENTS
The Silvery Moon, Watercolor, 28" x 50", Richard J Van Wagoner, 1997, Courtesy of an Anonymous Collector**
Did you know that while performing his duties as a member of Congress Mr. Nunes, a public official under First Amendment law, can spew whatever verbal sewage he wishes against another person without fear of a civil or criminal complaint for defamation? He enjoys absolute immunity. From atop his perch Mr. Nunes, the former chair of the United States House Permanent Select Committee on Intelligence (Intelligence Committee), can knowingly and intentionally, and with absolute immunity, make maliciously false statements about any person, organization or country his easily offended heart desires. The Speech and Debate Clause in the United States Constitution, found at Article I, Sec. 6, bestows this absolute immunity. It provides the members of both Houses of Congress
“shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same, and for any Speech or Debate in either House, they shall not be questioned in any other Place.”
One commentary explains, “[w]hile there appears to be much about the Clause that is unclear, it is well established that the Clause seeks to secure the independence of legislators by providing Members with immunity from criminal prosecutions or civil suits that stem from acts taken within the legislative sphere. This general immunity principle forms the core of the protections afforded by the Clause.
“The Supreme Court has consistently and repeatedly suggested the Clause’s immunity principle should be interpreted ‘broadly’ to effectuate the purpose of maintaining an independent legislature. Once it is determined that the Clause applies to a given action, the resulting protections from liability are ‘absolute,’ and the action ‘may not be made the basis for a civil or criminal judgment against a Member.’ Unlike some constitutional provisions, the Clause does not require a court to engage in a balancing of interests.”
Mr. Nunes can give but seems to have some difficulty taking. The former chair of the Intelligence Committee sued his cow . . . and his mom, among others, alleging defamation: “Plaintiff, Devin G. Nunes . . . by counsel, files the following Complaint against defendants . . . ‘Devin Nunes’ Mom’ (@DevinNunesMom) and ‘Devin Nunes’ cow’ (@DevinCow) . . . .”
The complaint, which re-publishes scores of allegedly defamatory and offending tweets, thereby assuring a much broader readership, is linked below. Entertaining, if nothing else.
News organizations have analyzed and, appropriately, mocked his case. The Washington Post characterized it as “ridiculous,” and gave “a sampling of the tweets he alleges are defamatory.” As it turns out, it wasn’t actually Mr. Nunes’ cow, or his mom for that matter, that tweeted the offending statements. They came from, of all things, parody accounts:
• “Devin Nunes’ cow has made, published and republished hundreds of false and defamatory statements of and concerning Nunes, including the following: Nunes is a ‘treasonous cowpoke.’”
• “‘Devin’s boots are full of manure. He’s udder-ly worthless and its pasture time to move him to prison.’ ”
• “In her endless barrage of tweets, Devin Nunes’ Mom maliciously attacked every aspect of Nunes’ character, honesty, integrity, ethics and fitness to perform his duties as a United States Congressman.”
• @DevinNunesMom “falsely stated that Nunes was unfit to run the House Permanent Select Committee on Intelligence.”
• @DevinNunesMom “falsely stated that Nunes was ‘voted ‘Most Likely to Commit Treason’ in high school.’ ”
• @DevinNunesMom “falsely claimed that Nunes would ‘probably see an indictment before 2020.’ ”
Huffington Post mentioned the multiplicity of parody accounts rising up to mock Mr. Nunes’s complaint against . . . parody accounts.
Untitled, Pencil on Paper, 39.5" x 25.5", Richard J Van Wagoner, Circa 2000, Courtesy of Van Wagoner Family Trust**
I have posted about defamation before, primarily in response to Individual-1’s claim that he would change the law to make it easier to sue for defamation, something for which Individual -1 and his television and radio ventriloquists would provide a target-rich environment. First Amendment Meet Last Amendment:
Libel and slander — defamation — are recognized under personal injury law as harm arising from false publications. The law of libel (written) and slander (verbal) does this delicate dance with the First Amendment. The United States Supreme Court has recognized the need to avoid the “chilling effect” libel laws could have on debate, dialogue and the dissemination of truth about public affairs, public officials and public figures. “Opening up” libel laws the way Individual-1 said he wants and, apparently, the way Mr. Nunes wants would result in self-censorship, discouraging both lawful and unlawful conduct. Individuals and the media, fearing they were wrong (or distrusting authority’s competence or willingness to find them correct), would err on the side of remaining silent, which silence, in my opinion, should be mostly limited to people responding to police interrogations. Individual-1’s inability to self-regulate the endless absurdities his “very smart brain” excretes would condemn him to lawsuits ad infinitum.
Political speech enjoys the highest level of protection under the First Amendment. The Court imposes a high constitutional standard to give “breathing space” to the political process. In order to ensure debate is “uninhibited, robust, and wide open,” the Court established a very difficult standard for public officials and public figures to meet in order to recover for libel or slander. In a unanimous 1964 decision the United States Supreme Court ruled in favor of the New York Times, holding that a “public official” must show that the newspaper acted “with ‘actual malice’ — that is, with actual knowledge that it was false or with reckless disregard” for truth. “[A] little falsehood must be tolerated so that citizens will not engage in self-censorship for fear of criminal prosecution or a ruinous civil suit.”
As it should the First Amendment protects various additional forms and types of speech, particularly in the political realm, such as opinion, fair comment and criticism and parody and satire which blur the lines between truth and outrageousness. Individual-1’s Saturday night nemesis has perfected the art. We also owe that smut peddler who spewed verbal sewage (not Jerry Falwell this time) Larry Flynt and Hustler an extreme debt of gratitude for championing First Amendment rights after he parodied Jerry Falwell’s first sexual experience. Mr. Falwell sued. As offensive as the parody was to some, including Mr. Falwell whose feelings were hurt — along with his mother’s I suspect, and possibly a goat’s, mocking leaders and political figures is an important form of dialogue that enjoys First Amendment protection. Mr. Nunes should be careful what he asks for if he wishes to continue to worship at the feet of Individual-1 and Hannity where, not without dump truck loads of irony, Mr. Nunes announced his lawsuit for defamation.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com
**My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.comare hers