Tag: Sidney Powell

Actual malice, meet demonstrable truth

…not long after Joe Biden had been officially declared the winner of [the 2020 presidential] election, a bunch of disreputable right-wing sore losers—that’s the technical term—began to claim that the Dominion machines had somehow been tampered with, and that votes that had been duly cast for Donald Trump via Dominion machines had been secretly switched over to Biden’s column.

The fact that this thesis was very stupid did not stop it from gaining credence among many Trump voters. These people weren’t just angry that their candidate had lost the election; they were angry that Fox News wasn’t reporting that Trump had actually won the election. In retaliation, many of these Trump fans began to unofficially boycott Fox News, instead tuning in to other right-wing news networks, such as Newsmax, which were much more willing to indulge their conspiratorial fantasies.

Check out more of this nice, fun summary of Dominion Voting systems libel suit against Fox News here.  The libel suit is scheduled to go before a jury in a Delaware court tomorrow, assuming the two sides don’t reach a settlement between now and then.

As a recovering journalist myself, I’ll say it is my belief that it should be hard to get a libel verdict against a journalist, a newspaper or broadcast company.  The U.S. Constitution envisions a free press that facilitates a lively public debate of issues, and in the decision that set today’s judicial standard on libel law, New York Times v. Sullivan, Justice William Brennan wrote for a unanimous court that “debate on public issues should be uninhibited, robust, and wide‐open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”  The threat of litigation is often used to by people who come out on the bad end of those debates to try to scare a paper or a station into not running tough stories (see: Trump, Donald J.; litigation; threats of).

But that doesn’t mean that those who publish on paper, who broadcast through the air, or who post online, should have a free hand to say anything they want at any time with impunity; those who have truly been libeled do have recourse.  But keep in mind, reputable publications can make a strong defense by proving the truth of what they published: if a published statement is true, it is not libelous or slanderous. (It was not ever thus: courts no longer automatically consider statements that damage the reputation as obviously libelous.)  If what was published is factually true, it is not libelous and you cannot win a lawsuit alleging libel.

In a case where the plaintiff is a public figure or a public official, Times v. Sullivan set a high bar for proving you were libeled by a publication: you must prove that the defendant published a story “with knowledge that it was false or with reckless disregard of whether it was false or not.”  (A term you’ll often hear that is used to describe that state is to say the publication acted with “actual malice.”)  While publication of an erroneous story is bad and hurts the reputation of the publication, it is not a case of libel against a public figure or institution (which Dominion is) if the publication believed the story was true and had done the required work to gather the facts to come to believe it was true.

In Dominion Voting Systems v. Fox, the voting machine company claims Fox defamed the company by “spreading false claims that the company rigged the 2020 presidential election to prevent former President Donald Trump’s reelection.”

As noted in a New York Times story last week,

While legal experts have said Dominion’s case is unusually strong, defamation suits are extremely difficult to win because the law essentially requires proof of the defendants’ state of mind. Dominion’s burden will be to convince a jury that people inside Fox acted with actual malice, meaning either that they knew the allegations they broadcast were false but did so anyway, or that they acted so recklessly they overlooked facts that would have proved them wrong.

During standard pre-trial discovery in this case, Dominion uncovered information from inside Fox that Fox News Channel and its on-air talent and some of its management leaders knew that the claims against Dominion were not true (“with knowledge that it was false”) but published the stories anyway—over and over again—to keep from offending their viewers who believed the claims from Trump and his lawyers and other sycophants of a rigged election (“with reckless disregard of whether it was false or not”).

As it often does, Fox defends itself by wearing the mantle of mainstream responsible journalism operating in the public interest; it argues it reported the claims made by Trump and others because they were newsworthy.

Fox has argued that while it understood many of the claims made by its guests about Dominion were false, they were still worth covering as inherently newsworthy. Fox’s lawyers have taken the position that there is nothing more newsworthy than claims by a former president of the United States that an election wasn’t credible.

But Judge [Eric] Davis disagreed.

“Just because someone is newsworthy doesn’t mean you can defame someone,” he said, referring to pro-Trump lawyers like Sidney Powell and Rudolph W. Giuliani, who appeared repeatedly on Fox News and Fox Business in the weeks after the 2020 election and linked Dominion to various conspiracy theories.

The judge admonished Fox’s lawyers, saying they cannot make the argument that the false statements about Dominion came from guests like Ms. Powell and not from Fox hosts. That argument is irrelevant, he said, because the fact remains that Fox is responsible as the broadcaster.

“It’s a publication issue, not a who-said-it issue,” he said.

There’s no guarantee to the outcome of a jury trial, of course…but if I may presume to summarize a closing argument for Dominion:

  • Fox lied about Dominion rigging its election machines to steal the 2020 presidential election from Crybaby He-Man
  • Dominion made every effort to inform Fox that what its guests and its hosts were saying on the air was incorrect
  • Fox knew that the accusations against Dominion that were being made on its programs were lies, but permitted them to continue
  • Dominion suffered monetary losses and losses to its reputation as a result of Fox’s broadcasts, and asks for money damages

Nice and neat, and not confusing.

Fox has been lying on the air to its audience for years, telling them (1) what they want to hear, regardless of whether it is true, and (2) what certain politicians have agreed to parrot, to build political consensus and power.  But this time, it lied about a company that was willing to call them out in a court of law, and the case has landed before a judge who has demonstrated his loyalty to demonstrable truth and facts.  For Fox, that is a whole new kind of audience.

The winter of my discontent has spilled over into the spring

You’d have thought that two months would have been plenty of time.  Time for Americans to take a calming breath, relax a bit, and let the radicalization of thought and action spurred by “the former guy” just naturally subside.  Time for passions to cool.  Time for the recognition of fact versus fiction.

Nope.

Four years of cognitive dissonance generated by the primary source of fake news in our lives reached its crescendo in early January when thousands of people claiming to hold an unwavering belief in law and order ignored the provable facts and attacked the seat of government of the country they swore they loved.  Hundreds of law enforcement officers were injured by the “patriots” who took the law into their own hands that day and tried to overturn the results of a free and fair election because they didn’t like the result.

The man impeached for inspiring that assault has left office, but the “the crazy” is still in the house.  He wasn’t the cause, it turns out; just a catalyst.

I daresay we all know at least a few of these people.  The stone cold racists.  The Christian Nationalists trying to make the United States a “Christian nation” even though the Constitution prohibits that.  The self-styled “conservatives” for whom anything can be said if it annoys their political opponents and inspires their own supporters, with adherence to actual accuracy or consistency with their own past statements not required.

They took advantage of having a mainstream leader—it don’t get any mainstreamer than the White House—who was willing to support their radical beliefs to force a massive change in the course of American society.  For four years, it was working.  They didn’t count on Dear Leader being so thoroughly self-absorbed and delusional that he refused to lead the country against the ravages of a global pandemic, a failure which generated enough antagonism that it inspired the record voter turnout that caused his defeat.

MAGA nation has always been there; it came out of the shadows in 2016, and it’s not done.

For those with no self-esteem and no affinity for truth, the blatant and self-serving lying is still going strong.  (Recent examples here and here.)  The flow of ludicrous conspiracy theories and disinformation is unrestrained—such as Wisconsin’s Ron Johnson, “an all-access purveyor of misinformation on serious issues such as the pandemic and the legitimacy of American democracy, as well as invoking the etymology of Greenland as a way to downplay the effects of climate change.”  The absence of any need for intellectual consistency has never been more apparent: a lawyer who is being sued for defamation by a voting machine company she trashed for weeks is defending herself by claiming that “no reasonable person” would have believed the things she claimed in an actual legal filing were actually true!

Many Republicans across the country acknowledge that they have a problem: there are too many Americans who have not drunk the kool-aid and are not voting for Republicans. So they are taking action to make it harder for those people to vote at all.

More than 250 bills have been introduced in 43 states that would change how Americans vote, according to a tally by the Brennan Center for Justice, which backs expanded voting access. That includes measures that would limit mail voting, cut hours that polling places are open and impose restrictions that Democrats argue amount to the greatest assault on voting rights since Jim Crow.

First across the finish line is the great state of Georgia.  In the state where a Republican secretary of state effectively told a sitting president soliciting his cooperation in voting fraud to shove it, the Republican legislature passed and the Republican governor signed an “overhaul of state elections that includes new restrictions on voting by mail and gives the legislature greater control over how elections are run.”

Among other things, the law requires a photo ID in order to vote absentee by mail, after more than 1.3 million Georgia voters used that option during the COVID-19 pandemic. It also cuts the time people have to request an absentee ballot and limits where ballot drop boxes can be placed and when they can be accessed.

Democrats and voting rights groups say the law will disproportionately disenfranchise voters of color. It is part of a wave of GOP-backed election bills introduced in states around the nation after former President Trump stoked false claims that fraud led to his 2020 election defeat.

The effort in Georgia and elsewhere—including my state of Texas, sad to say—are marketed as laws designed to provide greater ballot security and give voters reassurance about the integrity of election outcomes.  This presupposes your belief in the old GOP chestnut that elections now are not secure and that the outcomes are not legitimate.  Which, of course, is untrue—look at the literally dozens of lawsuits pursued across the country by Republicans trying to change the outcome of the presidential race last year, which could not prove voter fraud sufficient to have changed any results.  No one can reasonably argue that there is no election fraud, ever, anywhere, but there has never been evidence of the kind of massive voter fraud—ever, anywhere—that Republicans falsely assert as reason to make voting harder.  Even to the extent, in Georgia, of making it illegal to give a bottle of water to anyone waiting in line to vote.

Republicans who recognize actual truth understand this: their party controls the legislatures in 30 of the 50 states, and thus the redistricting process in those states, which goes a long way to perpetuate their electoral strength in legislative and congressional elections despite their national weakness.  (Democrats redistrict to their own benefit, of course, but they don’t have as many opportunities.)  In the 2020 election for president, 84.1 million Americans voted for someone other than the Republican incumbent, and another 80.8 million Americans didn’t vote at all, so nearly 70% of Americans who are eligible to vote turned thumbs down at another four years of Republican control of the White House.  In an election where more Americans voted than ever voted before, less than one-third of Americans voted Republican at the top of the ballot.  If Republicans want to hold on to power, they know they had better use their majorities while they still have them.

So must the Democrats in Congress.  The For the People Act, passed by the House of Representatives and awaiting action in the Senate, is an effort to negate the Republican attempts to make voting more difficult: it would expand voting rights, and limit gerrymandering, and take precedence in these areas over any laws passed in the states.  We’ll see.

Meanwhile, Republicans and conservatives seem intent on amusing us with their crying and whining.  The party that used to be all about personal responsibility can’t shut up about being the victims of cancel culture when they get caught doing the very things for which they criticize others.