Government

A High-Profile Defamation Suit With Some Teeth?

In an era where absurd defamation suits by prominent parties are common, elections company Dominion Voting Systems has made a serious defamation claim against Sidney Powell.

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(Photo by Drew Angerer/Getty Images)

Baseless defamation suits initiated by high-profile actors such as members of Congress against Twitter and three users, or porn stars against the president of the United States seem to be all the rage lately. Seeing the legal system routinely abused like this should be enough to make any reasonable person understand the necessity of having robust anti-SLAPP statutes which provide procedural methods to quickly dismiss groundless defamation claims. Of course, defamation is also a centuries-long recognized area of American law. Although high-profile actors have tried to abuse it, elections company Dominion Voting Systems appears to have bucked the trend by filing a legitimate defamation suit against the horrible human being that is Sidney Powell. Dominion is seeking a whopping 1.2 billion in damages for what it labels as Powell’s “defamatory media campaign” which included claims among others “that Dominion had rigged the election, that Dominion was created in Venezuela to rig elections for Hugo Chavez, and that Dominion bribed Georgia officials for a no-bid contract.”

Powell’s claims are, of course, false in that Dominion was founded in Canada (Toronto), and independent audits and hand recounts have proven that Dominion’s vote counts were accurate. In some ways, the ridiculousness and easily disprovable nature of Powell’s claims might work in her favor. This is because insults, hyperbole, opinion, or overheated political rhetoric cannot be considered defamatory. Only false statements that can reasonably be interpreted as fact can fit the legal definition of defamation. The standard established in New York Times v. Sullivan also makes defamation cases involving public figures considerably more difficult to prove and sustain. However, what makes the legal strategy used by Dominion appear so strong is that the suit presents a lot of evidence portraying Powell not as a conspiracy nut engaged in opinion or hyperbole, but as a serious person making serious, albeit false, claims primarily for financial gain that millions of citizens reasonably took as fact.

As the Dominion suit details, for a month after the election, Powell appeared on legitimate (to many Americans at least) nationwide media outlets like Fox News alleging specific factual claims that were, at one time, backed by the office of the presidency and the president’s campaign. Moreover, Dominion does not necessarily focus on some of Powell’s more obnoxious claims, such as cooperation with Hugo Chavez. Instead, Dominion provides examples of Powell falsely misrepresenting actual factual events such as the (provably harmless) glitches with voting machines in Georgia.

Equally compelling, in its complaint Dominion presents a lot of evidence regarding Powell’s motivation as a grifter seeking to financially benefit from her false claims and ingratiate herself with the president. In fact, Powell did use her claims about Dominion to solicit funds from her website and considerably raised her public profile. In other words, according to Dominion, this was not a lunatic howling at the moon with hyperbole but an effectual, calculated, professional deceiver who reaped great reward.

Indeed, perhaps the most powerful aspect of Dominion’s suit is the demonstration of the effectiveness of Powell’s lies about a fraudulent election, including how it impacted the storming of the Capitol last week. There has now — literally — been blood spilled over these lies. Five people have died and dozens, perhaps hundreds, of others have been physically injured, not to mention the threat posed to our republic or how near we came to a bloodbath. Employees at Dominion have also seen their lives upended and have been subjected to numerous death threats. In other words, the damage caused by Powell’s lies is real and profound, and it was certainly clear even before Dominion filed its suit that Powell played a leading role.

Here is where I give the standard, but important, qualification that when it comes to litigation, little is certain or predictable. A case can be lost because of one juror’s bias or an attorney’s mistake. Yet Dominion’s suit is certainly different from other high-profile defamation claims in that there is a lot within it that should be taken seriously. With all the damage done, I cannot fathom how a person like Sidney Powell can sleep at night. If Powell has any legal sense (which is not at all evident), the Dominion suit should be keeping her awake.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

 

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