DURING HIS first campaign for the US presidency in 2016, Donald Trump said he wanted to open our defamation laws to facilitate legal action against the media. These plans did not materialize. But following Mr. Trump’s extraordinary challenges to re-election and in the midst of his second impeachment trial, libel law is back in the papers.
Dominion Voting Systems and Smartmatic, both voting technology companies, have sued or are preparing to sue three right-wing wired news networks, some of their hosts and two attorneys for Mr Trumps for claiming their devices were used to steal the election of Joe Biden. These claims are a central part of the false theory of voter fraud that fueled the storming of Capitol Hill on January 6, resulting in the deaths of five people. Dominion has launched a pair of $ 1.3 billion lawsuits against Rudy Giuliani and Sidney Powell, legal advisers to Mr. Trumps, with more to come. On February 4, Smartmatic filed its own 276-page lawsuit against Fox and three of its commentators (Maria Bartiromo, Lou Dobbs, and Jeanine Pirro), as well as Mr. Giuliani and Ms. Powell, for $ 2.7 billion.
Whether the potentially defamatory statements are written (libel) or spoken (slander), the aggrieved party must rise above the bar in America, where the First Amendment of constitutions protects free speech and freedom of the press. In Britain, defendants are generally required to show that their statements were true or amounted to honest comments. In America, it is the plaintiffs who bear the burden of proof; they lose unless they can prove that the defendants’ statements were false but presented as allegations of fact. Establishing defamation also means showing that the speaker was negligent and damaged the reputation of the plaintiffs.
Many libel cases fail because the statements involved turn out to be protected expressions of opinion or hyperbole rather than factual allegations. Others fail due to uncertainty over the veracity of contested statements. A prominent First Amendment lawyer who says he has a natural dislike of defamation suits nonetheless believes Dominion and Smartmatic have very strong cases because the allegations in question are so clearly presented as factual and so clearly false.
The Smartmatic lawsuit cites dozens of allegedly defamatory statements. On November 13, Giuliani told Fox Business that Smartmatic was founded as a company to secure elections with highly hackable technology. Two days later, Ms Powell told Ms Bartiromo on Fox that her client won not only by the hundreds of thousands … but by millions of votes which were transferred to Mr Bidens’ column by the Dominions software and Smartmatics which she said was designed to rig elections. She also suggested Dominion had ties to Hugo Chvez, a Venezuelan dictator who died in 2013. On November 21, Mr. Dobbs, host of the top-rated Fox Business show which was canceled a day after Smartmatic filed its complaint, said the companies had launched a cyber attack against our election.
None of these allegations have been corroborated. But Dominion and Smartmatic claim that, even without merit, the accusations have severely damaged their reputation and are costing them business around the world. Dominion says Ms. Powells’ claims are patently false. The company was not created in Venezuela to rig the election of a now deceased Venezuelan dictator, but founded in Toronto with the aim of creating a fully verifiable paper-based voting system that would allow people with disabilities to vote independently on verifiable paper ballots.
The grandiose accusations against Smartmatic are particularly curious, as the company played no role in the recent elections in the Americas other than helping with voting technology in Los Angeles County, where vote totals have never been made. contested. The earth is round, the Smartmatics complaint begins. The election was not stolen, rigged or fixed. These are facts. They are demonstrable and irrefutable.
Roberta Kaplan, a lawyer representing E. Jean Carroll in a libel case against the 45th President, believes that the lawsuits are likely to overcome the usual hurdles. She believes Smartmatics’ claims might be harder to pin down on Ms Pirro and Ms Bartriromo, as they largely handed the microphone over to guests who made outlandish statements and were careful not to voice the accusations themselves. Mr. Dobbs was less circumspect, so that he and therefore Fox may be, in Mrs. Kaplans’ eyes, on the spot, with Mr. Giuliani and Mrs. Powell.
On February 8, Foxs attorney Paul Clement, who was Solicitor General under George W. Bush, filed a motion to dismiss the Smartmatics lawsuit. (Similar filings with the names of the hosts arrived on February 12.) The network and its hosts, Clement argued, were simply covering a major event. An attempt by a sitting president to challenge the outcome of an election, he wrote, is objectively newsworthy. If hosts simply allow guests to make affirmations, without amplifying ideas in their own words, it’s a powerful defense against defamation. But Mr. Clements ‘motion did not attempt to refute every claim in Smartmatics’ complaint, perhaps because some statements can easily be defended while others cannot and Fox has a legal risk if one of his employees’ comments is defamatory.
Another point of contention is whether the voting companies are public figures, about whom the US defamation law sets a higher standard that would make their claims more difficult to support. If so, companies must prove that Foxs hosts and Mr. Trump’s attorneys acted with what the law describes as real wickedness, that is, they knew the statements were false. or that the speakers displayed a reckless disregard for the truth, as opposed to mere negligence. Mr. Clement argues that Smartmatic is clearly a public figure and should rise above the bar. Ms Kaplan disagrees: dragging an otherwise obscure company into a cable controversy doesn’t turn it into even a limited public figure, she says, especially since it has played such a role. minor in the 2020 elections. The Supreme Court ruled that only people who have come to the fore in particular controversies count as public figures with limited vocation.
But even if a judge sees Smartmatic as a public figure, the company may have enough evidence to sue Fox. And this is perhaps the strongest case against Mr Giuliani and Ms Powell, as Mr Clements’ motion seems to acknowledge: if these surrogates fabricate evidence or tell lies with real nastiness, a libel action can then be brought against them.
Mr Trump’s lawyers may face the greatest legal threat, but the networks also appear to be aware of their own vulnerability. After Dominion and Smartmatic warned Newsmax they could take legal action, its presenters read canned warnings on the air and cut off Mike Lindell, a prominent businessman who advised Mr. Trump at the end of his presidency, as he repeated his allegations of election theft. We don’t want to go back to the allegations that you are making, Mike, the host Bob Sellers said during the chaotic exchange, before leaving the set mid-interview.
OANN has been alternately confrontational and accommodating as the lawsuits develop. In December, he responded to the Dominions’ request to retain the documents for possible legal action by requiring that Dominion also retain the documents, so that OANN could attempt to prove that the company was engaged in a legal proceeding. electoral fraud. But when the network aired a movie of Mr. Lindell repeating his allegations, it preceded the broadcast with a lengthy warning.
The First Amendment leaves plenty of room for vigorous debate; plaintiffs seeking damages for defamatory comments face a sufficiently steep climb. On the rare occasions when libel or slander claims persist, the defamed entity is usually the only party indemnified. These voting technology-related lawsuits may offer a wider public benefit: curbing the spread of disinformation that destabilizes democracy itself.
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