Sidney Powell, the Donald Trump election lawyer who infamously threatened to unleash the “kraken” to expose voter fraud, now says she “just meant to be hyperbolic.” She told a judge Tuesday that “reasonable people would not accept such statements as fact but view them only as claims that await testing by the courts through the adversary process.”
Powell is just one of Trump’s political operatives who are appealing to the judicial system to toss out multiple defamation lawsuits from voting machine companies worth billions.
But Dominion may have a case according to both experts and evidence. Earlier this month, a county in Ohio went back on its decision to buy Dominion machines, citing pressure from Trump supporters who believe the false accusations that Dominion manipulated vote tallies in the 2020 election.
If Powell is to be believed, these Ohio constituents would be considered unreasonable. Otherwise, we can assume reasonable people did believe political players in power. Either way, Dominion is now suffering financially in a way that can be directly linked to comments made by Powell, Rudy Giuliani, and Fox News — all of whom are facing defamation lawsuits.
Dominion and another voting machine company, Smartmatic, say accusations of bribery and association with corrupt former Venezuelan leader Hugo Chavez, amid other claims, are baseless and hurting their reputations.
Larry Rosenthal, attorney and University of California, Berkeley public policy professor, said that regardless of the outcome, the cases have every right to be tried. “I don’t think that these plaintiffs are doing this for fun. I think they mean business and they should.”
“There has to be at least a hypothetical threshold that society at large will not stand the spread of falsehoods.”
On his web series, Common Sense, Giuliani went so far as to say that “there are thousands of pieces of evidence of hard fraud” and ranted about Dominion working on behalf of the “Democratic machine” by sneaking fake ballots into processing centers in the dead of night. This is all false. Giuliani even used these claims to promote sponsored products such as online protection from “cyber thieves.”
Dominion said that after these damaging “viral disinformation campaigns,” lawsuits would be the only effective way to proceed against these “moguls.”
Libel and slander cases face a notoriously high burden of proof, commonly leading to acquittal. This precedent was set in the New York Times Co. v. Sullivan decision and has lasted for decades, typically used as a defense for journalists and other whistleblowers avoiding retribution for investigative reporting.
Consequently, the net cast by the First Amendment protects nearly all speech, making it difficult to prove defamation. As a public figure or entity, you have to prove not only did someone falsify a fact that harmed you, you also have to prove their malicious intent.
Given the recent increases in propaganda usage by individuals wielding immense influence, though, it begs the question: when do cases reach that legal threshold?
“There has to be a limit or an extent to which one person can defame another to that victim’s detriment,” Rosenthal said. “There has to be at least a hypothetical threshold that society at large will not stand the spread of falsehoods.”
Giuliani continues to champion himself as a constitutional protector.
“It is another act of intimidation by the hate-filled left-wing to wipe out and censor the exercise of free speech,” Giuliani said in a statement regarding the Dominion lawsuit.
In a public statement, a spokesperson for Fox News claimed “Fox News Media is committed to providing the full context of every story with in-depth reporting and clear opinion. We are proud of our 2020 election coverage and will vigorously defend this meritless lawsuit in court.”
By framing incisive rhetoric as news and thus fact rather than opinion, Fox News sets a higher standard for the content their network produces, making them more vulnerable to conviction compared to individuals such as Giuliani and Powell.
If Fox News is convicted, this could be seen as a win for those concerned with reining in biased political news, indicating that this type of reporting is not tolerable.
“The extent to which we limit press freedoms and speech freedoms and impose civil liabilities upon them when they hurt people… you may see a lot of change out there,” Rosenthal said.
There are benefits beyond the monetary gains at stake for Dominion and Smartmatic. The marketing cachet of this public lawsuit is enormous.
Rosenthal said there’s no doubt that from a PR standpoint, the companies realized that these legal moves “[put] them on the right side of history for fighting the good fight.”
As the cases move forward, the rhetoric for protecting the sanctity of American democracy will undoubtedly continue; however, there are many issues at play limiting the fairness of elections that need to be changed if the US is to have a truly democratic voting process, he said.
Related front page panorama photo credit: Adapted by WhoWhatWhy from Dominion Voting Systems / Wikimedia.