January 30, 2023

A voter is seen at a voting machine at the Metropolitan Library polling station on Election Day in Atlanta, Georgia on Tuesday, November 3, 2020.

Tom Williams | CQ Appeal, Inc. | Getty Images

Dominion Voting Systems and Smartmatic USA have a good chance of winning their multi-billion dollar defamation lawsuits against a variety of conservative personalities and media companies, but they have a lot to prove in court, experts say.

The two electoral technology firms have filed a number of lawsuits against former President Donald Trump’s boosters, including former New York City Mayor Rudy Giuliani and Fox News. They have worked to spread conspiracy theories about their products to allay President Joe Biden’s doubts about his election victory.

Dominion launched its first volley last month, suing Giuliani and Sidney Powell, a conspiracy theorist and former Trump campaign lawyer, in separate $ 1.3 billion lawsuits in federal court in Washington DC. Dominion hit MyPillow CEO Mike Lindell on Monday in his latest lawsuit, also seeking $ 1.3 billion in damages. Dominion CEO John Poulos warned on CNBC the next day that Lindell “definitely won’t be the last”.

Smartmatic has so far filed a case in New York State Court. The company sued Fox News and its hosts Lou Dobbs, Maria Bartiromo and Jeanine Pirro, Giuliani and Powell. Smartmatic has demanded a minimum of $ 2.7 billion from the defendants in this case.

Dominion’s suits are in front of District Judge Carl Nichols, a Trump agent. Smartmatic’s lawsuit is before Judge David Cohen, a Democrat who was elected in November.

While the sums fluctuate, attorneys who have worked on defamation cases in the past say the companies have performed pretty well so far.

“I think these are cases where traditional libel claims are made, libel claims are made, and there is a pretty regular law enforcement in this country,” said David Schulz, a defamation scholar at Yale Law School. But, added Schulz, “it’s not that these will be slam dunk cases at all.”

Too early to tell

Experts said it was too early to tell how much money companies can actually make. Businesses can ask for any amount of money they want, but those numbers often change as judges and juries weigh the facts.

Robert Rabin, a professor at Stanford Law School, noted that the numbers requested were “awfully large” but added that at this point it is “really difficult to be very specific”.

To win a defamation case, a plaintiff usually has to prove that the defendant made a false statement of fact that caused harm to the defendant. If the plaintiff is a public figure, he must also demonstrate that the defendant acted with “actual malice” – which essentially means that the spokesman knew or should have known that what he was saying was not true .

Dominion and Smartmatic would have to lower the bar if they were considered private individuals. But Fox has claimed Smartmatic is a public figure, and legal experts said judges would likely agree.

Among the false statements that Dominion and Smartmatic are complaining about include the allegations by Giuliani and Powell on Fox shows and elsewhere that Dominion is owned by Smartmatic and created on the orders of the late Venezuelan dictator Hugo Chavez to freeze elections, including the 2020 competition between Trump and Biden. Lindell also falsely claimed that Dominion machines were used to steal millions of votes for Biden.

Schulz said the lawsuits are “one of the few options we currently have to contain misinformation”.

“If we can send people to jail for misrepresenting a company’s financial situation, but there is no way to spread lies in a presidential campaign to try to influence people’s voices, then we have a big problem “, he said.

Real malice

According to John Goldberg, a professor at Harvard Law School and an expert on defamation, the lawsuits against Giuliani and Powell are likely to be simpler than the lawsuits against Fox News and its hosts.

“I think there is pretty good evidence on Giuliani and Powell that would allow a jury to find the real malice of these defendants,” Goldberg said. “For example, Dominion noted in his complaint that Giuliani routinely talked about fraud in his public out-of-court statements, but every time he was on trial and under oath, so to speak, he said, ‘No, we’re not claiming fraud, yours Honor. ‘”

“You have a shot against Fox News and the Fox personalities, but it’s a little harder,” Goldberg said.

In its lawsuit, Smartmatic alleges that Fox News and its hosts knew that Powell and Giuliani’s allegations about Smartmatic’s systems for casting votes on Biden were false. The company argues that comments from other Fox News journalists, such as Eric Shawn and Tucker Carlson, made it clear that Fox did not support Powell and Giuliani’s claims.

For example, Carlson said in November that Powell “never sent us evidence, despite many polite requests. When we pressed further, she got angry and told us to stop contacting her.”

Smartmatic wrote that if Fox News or its hosts had evidence to back Powell’s claims, Carlson shouldn’t have said what he did.

While the defendants in the Dominion lawsuits have not yet provided their formal responses, Fox News and its hosts have already asked the judge in the Smartmatic case to drop the lawsuit. Paul Clement, Fox’s attorney and former attorney general under President George W. Bush, wrote in a motion that the news company was just doing its job, covering claims by the president and his supporters that were “objectively newsworthy.”

Clement wrote that the lawsuit is “at the heart of the news media’s First Amendment mission to educate on matters of public concern”.

While this argument may influence some jurors, Rabin noted that there was no “absolute defense of newsworthiness”.

There is also no “defense of republication”.

“In other words, anyone who has published a defamatory statement without qualification is also subject to a defamation suit,” said Rabin.

Uphill struggle for billions

If Dominion and Smartmatic win their cases, it could still be an uphill battle for them to get the billions they believe are owed.

If the companies can prove that the defendant’s statements were defamatory, they are entitled to the amount of money that they can prove that they lost because of the claims – for example because of lost election contracts. They may also be entitled to “punitive damages” or money to prevent the accused from spreading lies in the future.

Every business has sought punitive damages in addition to damages or money to repay them for the damage suffered. In Dominion’s case, it has split that damage in half, claiming that approximately $ 651.7 million is owed for each type of damage. Smartmatic has not disclosed the amount of punitive damage it is seeking, but says it is owed $ 2.7 billion in damages.

While Dominion and Smartmatic can substantiate their claims for damages with evidence that they lost their business due to the false statements they are suing, punitive damages claims are far more discretionary and can affect factors such as a defendant’s wealth.

Schulz, the professor at Yale, said that it could be difficult for voting machine manufacturers to obtain punitive damages because of the need to show not only actual malice but also intent to harm the company. It is plausible that the statements were more aimed at offending Biden or the Democratic Party, Schulz said.

Some states also limit the amount of punishment or damages that can be awarded in a civil lawsuit, although neither New York nor the District of Columbia in which the previous cases were filed have such limits. The Supreme Court has ruled that punitive damages are usually less than ten times the amount of damages and that smaller ratios can be scrutinized.

Dominion boss Poulos admitted on Tuesday that the $ 1.3 billion demanded by his company could change.

“It’s difficult to set a hard number, but the damage to our reputation alone has hit us devastating,” said Poulos.

Poulos also said his company followed the first change.

First right to change

“There is no secret endgame that restricts a person’s right to freedom of expression. We believe in it and frankly we want to rely on freedom of expression to find out the truth,” he said. “Our intention is to bring the facts to the table so that American voters can understand exactly what happened during their election and how false those allegations were and how utterly nonsense they were.”

Giuliani, who has served as one of Trump’s personal attorneys, has said the demand for more than $ 1 billion is an intimidation tactic.

“The amount asked for is obviously intended to shock people with weak hearts,” Giuliani said in a statement. “It is yet another act of intimidation by the hateful left wing, the exercise of freedom of speech, and the ability of lawyers to vigorously defend, eradicate and censor their clients.”

Giuliani, Powell, and Lindell have all signaled that they’re glad the suits were brought against them.

“My message to Dominion is that you finally did it because it will now be back in the limelight,” Lindell told CNBC after he was sued.

Lindell also denied Dominion’s claims that he benefited financially from the statements he made about her.

Powell’s attorney, Conservative Provocateur L. Lin Wood, said, “Get ready to rumble, Dominion.”

“You made a mistake suing Sidney. You’re going to pay a heavy price,” Wood said, according to Forbes.

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