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Consequence Culture: Dominion, Smartmatic Sue "Big Liars"

Manufacturers of hardware and software for voting systems are suing Rudy Giuliani, Sidney Powell, Mike Lindell, and FOX News and its hosts, who falsely blamed their products and services for non-existent voter fraud.
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The highest-profile Trump-adjacent legal event this year might be the Supreme Court's one-sentence order allowing Cyrus Vance, Jr., the Manhattan District Attorney, to obtain Donald Trump's tax and business records from his accountants. Other pending lawsuits focused on The Big Lie, however, might have an even more substantial and healthful effect on, among other national toxins, the right wing media ecosystem and latest drive for new voter-suppression laws.

First, a brief note on Trump v. Vance...

Issued on Monday without any dissents, the Supreme Court's ruling will accelerate the Manhattan DA's investigation of various kinds of alleged fraud by Trump and his businesses, mostly centered on asset-valuation for federal and state taxes and business loans. In response to the order, Vance issued his own one-sentence statement: "The work continues."

The order in Trump v. Vance legally applies only to the parties in that case, but it indicates the Court's likely rejection of future attempts to prevent criminal and civil investigations from pursuing allegations of criminal conduct or civil injury against The Former Guy, his businesses, and his associates (including family).

That's about all there is to say about this investigation right now. The Manhattan DA's ongoing investigation is proceeding under the auspices of a grand jury, officially secret, and, therefore, largely hidden from public view (except via occasional leaks). And, whatever the legal outcomes for Trump, his family, and businesses, public knowledge and understanding of Trump's taxes and finances is advancing steadily elsewhere, as in the New York Times's in-depth analytic articles on Trump's tax returns, which it obtained last year. (Read about his tax returns here, for example.)

"The Big Lie" Quartet

Meanwhile, a quartet of civil lawsuits responding to The Big Lie ultimately might be as or more significant. Suits have been filed by Dominion and Smartmatic, two companies that provided hardware and/or software used in the 2020 elections to state and local election agencies. These suits could be costly, even financially ruinous, for Trump enablers who are defendants in the suits.

Dominion is suing Rudy Giuliani, Sidney Powell, and Mike Lindell. Smartmatic is suing FOX News and two hosts (and one former host). All the defendants have falsely and unrelentingly claimed that the companies' products and services enabled a fraudulent election. More such suits might be filed, but here's what's on the litigation dockets in various state and federal courts so far:

  • Smartmatic's lawsuit, filed in New York state court against FOX News (which has sort-of-ratcheted-down its Big Lie programming), Maria Bartiromo, Jeanine Pirro, and Lou Dobbs (who's already been terminated by FOX); and
  • Dominion's three suits in different federal courts, separately suing Rudy Giuliani; Sidney Powell, her law firm, and an additional entity created by her; and Mike Lindell and his My Pillow company. Read the three Dominion complaints, respectively, here, here, and here. (Historical reminder from the 2012 Romney campaign: these suits would not be possible if corporations weren't "people," too.)

Each and all of these suits essentially allege that the various defendants defamed and injured Smartmatic and Dominion by creating and promoting lies that the companies' election hardware and software enabled massive amounts of fraudulent voting that "stole" the election from Trump and for Biden. The defendants have continued lying about the 2020 presidential election despite cease-and-desist letters from the companies and despite the fact that courts, election officials in battleground states and around the country, and federal election monitors have steadfastly maintained that there was little or no fraud in the election (and definitely no fraud that affected the outcome).

The Smartmatic Lawsuit

The Smartmatic suit seeks a range of relief: "Compensatory damages in an amount to be determined at trial; Actual, consequential and special damages in an amount to be determined at trial, but no less than $ 2.7 billion; Punitive damages; Reasonable and necessary attorneys’ fees; Reasonable and necessary costs of the suit; Prejudgment and post-judgment interest at the highest lawful rates; Declarative and injunctive relief; and Such other and further relief as this Court deems just and appropriate."

Compared to the Dominion suits, the Smartmatic suit has a steeper legal hill to climb, at least against FOX News itself. That's because Smartmatic's case will be judged against Supreme Court cases that have made it harder for individuals and businesses to sue print and broadcast media for defamation in matters of public interest.

For Smartmatic's suit, the leading SCOTUS cases are New York Times v. Sullivan and Gertz v. Welch. These cases generally require a plaintiff who's a public official or "public figure" to prove the media defendant published or broadcast the defamatory statements with "actual malice," i.e., despite knowing that the defamatory material was false or with reckless disregard of its falsity. The policy basis behind the actual-malice rule is to ensure robust and widespread public debate and media coverage about issues of public interest (like elections) without a constant threat of frivolous defamation lawsuits from officials and other people angered by negative coverage of their actions. (The standard for a plaintiff who sues a non-media defendant in a matter of public interest is not settled.)

If the Smartmatic suit get past early motions to dismiss and/or for summary judgment, then the plaintiff company will get to discover what communication and decision-making underlay FOX's and its hosts' decisions after the election to broadcast and repeat, ad nauseum, lies about voter fraud in the 2020 presidential election. Fair game for discovery includes email traffic among FOX and its hosts, text messages, memoranda, meeting notes, other witnesses to such communication, and anything and everything else that might provide evidence of actual malice.

The Dominion Lawsuits

The Dominion suits seek similar relief: "...compensatory damages of not less than $651,735,000; ...punitive damages of not less than $651,735,000; ...all expenses and costs, including attorneys’ fees; ...a narrowly tailored permanent injunction requiring the removal of all the Defendants’ statements that are determined to be false and defamatory and enjoining the Defendants from repeating such statements or engaging in any further deceptive trade practices relating to Dominion; and such other and further relief as the Court deems appropriate."

A desire to avoid that actual-malice rule might explain why Dominion elected not to sue any media companies in its first round of lawsuits. Of course, Dominion might yet sue FOX, OANN, Newsmax, et al., but it's aiming its first round of suits at the individual cheerleaders for the Big Lie: Giuliani, Lindell, and Powell (and their affiliated businesses, if any). These three probably can't invoke status as "media" to get them New York Times or Gertz protection via the more demanding actual-malice defamation standard. The Dominion suits also allege that the Giuliani and Lindell have allegedly profited personally from their exploitation of The Big Lie. This for-profit allegation will help Dominion try to establish that the lies propagated by Giuliani and Lindell weren't high-minded public-interest speech, but merely grifts to fatten their wallets.

Like the Smartmatic lawsuit, the Dominion actions will have to survive motions to dismiss and/or motions for summary judgment, which will aim to kick the suits out of court before discovery. If they survive motion-practice, then the defendants will have to decide whether to resist during discovery and trial or settle at some point.

Defendants' Tactics and Defenses

All of the defendants in all of the four suits probably will deny liability, at least up to and through motions for dismissal and summary judgment. If the defendants decide not to settle in the Smartmatic case, they will argue that their statements were entirely or mostly truthful, or, if false, made without actual malice, and any other defenses that might be available to them under New York state law.

Another bundle of defenses might be raised in Dominion's non-media cases in federal courts in different states (note that the scope or availability of these defenses might vary from state to state and are fleshed out here):

  • Truth;
  • Consent by Dominion to the defamation (unlikely, of course);
  • "Absolute" privileges based on the status of a defendant (statements made in judicial proceedings or legislative proceedings, some executive statements and publications, publications by and between spouses, and publications required by law);
  • "Conditional" privileges (depending on the context or forum in which the defamation is made) such as a statement made for the protection of the publisher's interest, for the protection of the interests of a third person, for the protection of common interest, to ensure the well-being of a family member, where the maker of the statement believes that the public interest requires communication of the statement to a public officer or other official, or a statement made by an inferior state officer who is not entitled to an absolute privilege).

The validity of any of these defenses in any of the four cases has to be established by factual proof presented by the defendant(s). In other words, if the defendants want to rely successfully on any of these defenses, they will have to prove them with facts, not merely more allegations.

Possible Trial Outcomes

At trial, Plaintiffs could lose altogether; win a judgment that they've been defamed, with or without any award of damages; win injunctions against the defendants that prohibit the defendants from continuing to defame them; and/or get judicial orders requiring defendants to publicly retract their defamation. Aside from financially catastrophic judgments imposed on the defendants if they lose (Schadenfreude Alert!), other beneficial consequences could flow from victories by Dominion and/or Smartmatic (at least in the part of The Big Lie Community that responds rationally to litigation risks).

Large judgments could deter trafficking in Big Lies across right-wing media platforms: less Big Lie repetition concerning the 2020 election; less promotion of new Big Lies about election fraud in future elections; and decreased supplies of Big Liars willing to spew falsehoods on those platforms;

Deterrence happens. Note the sort-of-retractions of The Big Lie content by FOX and Newsmax (without calling them retractions), and OANN's reportedly removing Big Lie material from its platforms.

Unfortunately, the supply of unhinged, fact-free, conspiracy-loving guests willing to risk substantial defamation judgments will never dry up; however, for-profit platforms that might host such content presumably behave rationally, with their financial risks in mind. And they know what happened to Gawker, which filed for bankruptcy after suffering a $140 million defamation judgment obtained by Hulk Hogan.

If Smartmatic or Dominion, or both, win their suits, they should insist that the courts' judgments require the defendants to publish unambiguous and comprehensive retractions of The Big Lie in whatever media will broadcast the retractions most widely. Possible indirect benefits:

  • some believers in the Big Lie (at the margins) might reconsider their commitment to it (though most probably won't because they will want to continue to believe that their beloved Corpus Orangus never lost and Democrats never win "fair" elections);
  • climb-down by some believers in The Big Lie might lower the national temperature a smidge; and
  • widespread retractions of The Big Lie might also take some of the wind out of the ongoing legislative efforts in Red States (and Purple States with Red legislatures) to enact new voter-suppression laws.

Of course, it could be years before these suits are resolved. That said, if any of the suits survive motions to kick them out of court, pressure to settle sooner rather than later will increase on the defendants, because, y'know, BANKRUPTCY! might await them after judgments.

Stay tuned...

This is part of our continuing coverage of the 2020 elections.

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