Last week, the NY Times had an article about how Georgia’s Republican Secretary of State, Brad Raffensperger, is being targeted in a SLAPP suit by a “podcaster” who claims Raffensperger defamed her in his book about the 2020 election. (For reasons unknown, the NY Times links to none of the legal filings in the case, but we’ll rectify all that below).
The case is a perfect example of why we desperately need a federal anti-SLAPP law that protects everyone from vexatious litigation designed to suppress speech.
Raffensperger has been a target for the MAGA crowd ever since he turned down Donald Trump’s January 2, 2021 request to “find 11,780 votes” for him to win in Georgia by noting that none of the conspiracy theory ideas Trump was pushing about the election in Georgia had proven true. Given that Raffensperger ally Georgia Governor Brian Kemp has something of a history with pro-GOP shenanigans in how they conduct elections, the fact that even he wouldn’t humor this kind of nonsense from Trump says something.
Later that year, Raffensperger published “Integrity Counts,” a book that attempts to explain his side of what happened during the 2020 election.
Eleven months later, Jacki Pick sued Raffensperger for defamation in Judge Reed O’Connor’s court in Texas. She claimed that the book, which does not mention her, defames her. From the complaint:
In the Book, Raffensperger refers to the video presented to the Committee as a “SLICED-AND-DICED VIDEO.” Raffensperger states that the State Farm Arena video—presented to the Committee by Ms. Pick alone—“had been deceptively sliced and edited so that it appeared to show the exact opposite of reality.” Book, p. 138…. That is, he called Ms. Pick a liar and accused her of actions constituting a crime under Georgia law
Raffensperger further claimed that Ms. Pick’s presentation “showed a slice of video that had removed the clear evidence that Fulton County election workers had protected the ballots and the process as required by law.” Raffensperger later again referred to the video as a “chopped-up video.” Book, p. 139 …
In later public statements, Raffensperger described the video shown by Ms. Pick as “doctored” and “false.”
In his motion to dismiss, Raffensperger rightly focused on the fact that Texas had no jurisdiction over him for such a case.
In sum, Defendant had no contacts with Texas. Even his distributor had no contacts with Texas in connection with his book. All Plaintiff has been able to establish through jurisdictional discovery is that independent third-party retailers had contacts with Texas when selling Defendant’s book, and those contacts cannot be imputed to Defendant.
And thus, Judge O’Connor tossed the case over this issue last year:
First, Defendant did not reference Texas in the Book, nor did he reference any Texas-based activities of Plaintiff. See Revell, 317 F.3d at 473. Instead, Defendant’s statements concerned issues exclusively related to Georgia and Plaintiff’s testimony at the Hearing in the Georgia legislature. Second, when making the allegedly defamatory comments, Defendant does not appear to rely on any Texas sources. Third, Defendant’s comments in the Book and in nationally public statements do not concern Texas. For these reasons, the Court concludes that it does not possess specific jurisdiction over Defendant.
But, that didn’t stop Pick who refiled the case in Georgia earlier this year.
In the new motion to dismiss he filed last week, Raffensperger points out that Pick is never even mentioned in the book.
Here, nowhere in the book is there any specific mention of plaintiff. In discussing the December 3 legislative hearing—in a section pointedly titled, GIULIANI’S SLICED-AND-DICED VIDEO—the book refers only to the presentation “of witnesses and a video” by “Rudy Giuliani and other lawyers for President Trump,” a category that plaintiff’s original complaint took pains to make clear did not include plaintiff….
GIULIANI’S SLICED-AND-DICED VIDEO does not single out any editor or presenter of the videotape other than, of course, Giuliani. And it is Giuliani and Giuliani alone whom the book accuses of using the selective portions of the videotape shown during the hearing to mislead the Georgia legislature: “Giuliani intentionally misled our senators.” Ex. 1 at 139. In its numerous discussions of Giuliani’s “suitcases full of fraudulent ballots” claim, the book never identifies any individual on the Trump team, paid or volunteer, lawyer or otherwise, other than Giuliani. Whenever Integrity Counts mentions the State Farm security videotape, it is never ambiguous about the individual upon whom it places responsibility and opprobrium for the misleading excerpts and their use: Giuliani.
And then he argues that nothing he said in the book was false:
Plaintiff’s first contention seems to be that Integrity Counts falsely implied that the State Farm videotape presented to the General Assembly had been physically altered prior to its presentation or, to have been presented in a nondeceptive manner, was required to have been played in full, all 20 plus hours of it. Am. Compl. ¶¶ 3-5, 86. This contention is entirely without merit. The book makes neither implication. Rather, it accurately states that by using some segments of the State Farm video to arouse suspicions while ignoring other segments that made clear those suspicions were baseless, “Rudy Giuliani and other lawyers for President Trump presented witnesses and a video that had been deceptively sliced and edited so that it appeared to show the exact opposite of reality.” Ex. 1 at 138. The context makes clear that the descriptors “sliced and diced,” “chopped up,” and the like were used to emphasize the point that key portions of the video disproving Giuliani’s assertion of fraudulent ballots had not been shown to the legislature or tweeted to the public. Those descriptors were figurative, not literal, and under wellestablished law, not actionable. Horsley, 292 F.3d at 701-02 & n.2; Bryant, 311 Ga. App. at 243.
Plaintiff’s second contention, that two “suitcases” references in the book falsely defamed her, is also meritless. Whether or not, as plaintiff claims, it was common for Fulton County election officials and others to colloquially refer to ballot containers as “suitcases,” it cannot be denied that Giuliani and others, including the president himself, were using the term to falsely assert that the boxes were not official and the ballots within them fraudulent. See, e.g., Ex. 1 at 168-69 (Trump: “[t]hey weren’t in an official voter box; they were in what looked to be suitcases or trunks. Suitcases.”). The statements plaintiff challenges—an investigative reporter’s ‘not suitcases’ tweet and Gabriel Sterling’s ‘secret suitcase’ discussion—were countering these assertions and, as the critical omitted segment of the State Farm video makes clear, were plainly correct and accurate in doing so. Plaintiff was not defamed by the statements nor were they in any way false.
Finally, with respect to plaintiff’s overall contention, that Integrity Counts somehow singled her out, which it did not, and specifically accused her, which it did not, of having presented misleading evidence to the Georgia legislature, the fact is that she did present misleading evidence to the Georgia legislature. Her presentation distorted affidavits and played a videotape to raise suspicions about the “chain of custody” of “suitcases of ballots” that goes to “fraud or misrepresentation” that other portions of the videotape that she did not play showed to be baseless. See pages 4-7, supra. Plaintiff did not go so far as Giuliani in claiming that her presentation conclusively established the existence of criminal fraud, but it was her presentation and its critical omission that served to justify and propagate the claim.
As the NY Times article points out, Raffensperger has spent around $500,000 out of his own pocket defending the lawsuit:
Mr. Raffensperger, who self-published his book, is paying legal expenses out of his own pocket. He has recently launched a legal-defense fund to help defray the costs.
[….]
“I have incurred over $500,000 in legal fees to fight these frivolous claims,” Mr. Raffensperger said in a statement. “Not every election official is going to be able to withstand that type of pressure,” he said. “This should send alarms to every election official across the country.”
The NY Times piece also notes that Pick has offered to settle the case, but only if Raffensperger makes a statement that he doesn’t believe is true:
Ms. Pick’s lawyers let it be known that if Mr. Raffensperger wanted to settle the case, he would first have to say publicly that her presentation of the video was not deceptive. In other words, Mr. Raffensperger says, he would effectively have to tell his own new lie.
This all appears to be a classic SLAPP (Strategic Lawsuit Against Public Participation). Raffensperger spoke out about what happened with the 2020 election in Georgia, which is obviously a topic of immense public interest. Pick’s lawsuits appear very much designed to suppress that speech and pressure Raffensperger to say something he does not believe is true.
Pick also has vast resources because she is married to a mega-millionaire GOP donor Doug Deason. The wealthy can file these lawsuits at no significant expense, but defending them is way more expensive in money, time, and overall stress. Note that Raffensperger has already spent half a million dollars, just covering an easily dismissed over jurisdiction case in Texas, and just getting to the motion to dismiss stage in the case in Georgia (basically the very first step). The cost can only go up, and potentially massively, from here.
This is exactly what anti-SLAPP laws were supposed to protect against. Wealthy litigants can file vexatious and resource-intensive litigation against people for their speech in an effort to get them to suppress their speech. Notably, both Texas and Georgia have pretty strong anti-SLAPP laws. Those laws allow defendants to quickly stop costly discovery and make a motion to get the case kicked out quickly and (importantly) make the SLAPPing plaintiff pay the legal fees of the defendant.
Tragically, both the 5th Circuit (covering Texas) and the 11th Circuit (covering Georgia) have decided that anti-SLAPP laws cannot be used in federal court (where both of Pick’s lawsuits have been filed). That means those laws are useless here.
This is why we absolutely need a federal anti-SLAPP law that can be applied in these kinds of cases. Such anti-SLAPP laws are a necessary component to make sure that the free speech rights we all supposedly have under the First Amendment are actually achievable in practice. They are desperately needed to protect freedom of expression around the country, but certainly in cases like this, involving election officials.
In the NY Times article, Raffensperger notes that these kinds of attacks are only likely to become more common against election officials, but they’re already all too common against all sorts of people. This is why a federal anti-SLAPP law (and good state anti-SLAPP laws in every state) is such a critical need. And yet… none of the recent attempts to pass one has gone anywhere.
Without such laws, lawsuits like this can drain both the time and the wallets of anyone, even public officials like Raffensperger.
Georgia’s Secretary Of State Slapped With Frivolous Lawsuits: The Case For A Federal Anti-SLAPP Law
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