“A voting technology company swept up in baseless conspiracy theories about the 2020 election filed a monster $2.7 billion lawsuit on Thursday against Fox News, some of the network’s star hosts, and pro-Trump attorneys Rudy Giuliani and Sidney Powell, alleging the parties worked in concert to wage a ‘disinformation campaign’ that has jeopardized its very survival,” CNN reported on Thursday, February 4, 2021. Read story here.
“The lawsuit, filed in New York state court, accused Fox, Giuliani, Powell and hosts Lou Dobbs, Maria Bartiromo, and Jeanine Pirro of intentionally lying about Smartmatic in an effort to mislead the public into the false belief that the 2020 presidential election was stolen from former President Donald Trump. ‘They needed a villain,’ the lawsuit said. ‘They needed someone to blame.'”
Defendants reached by CNN issued the usual statements of wronged innocence. Smartmatic, for its part, is represented by a lawyer who won one of the biggest defamation verdicts in legal history. Looks like they’re not kidding.
To win a libel suit, Smartmatic has to prove what the defendants said about them was false. That will be the easy part — incredibly easy, their attorney says. He “told CNN Business that because Smartmatic’s role in the 2020 general election was limited to providing services to Los Angeles County, he could easily prove all the conspiracy theories false.”
If the courts rule that Smartmatic is a “public figure” within the meaning of New York Times v. Sullivan, a landmark U.S. Supreme Court libel case (details here), the company also will have to prove the defendants were motivated by “malice,” a steeper hill to climb — this, in effect, makes idiocy a defense.
There’s also a question of damages. Proving someone spread falsehoods about you is one thing; to turn that into a cashable check, you also have to show you were hurt by it, although juries have a lot of latitude about deducing injury when someone goes around B.S.ing about you. Still, it helps to be specific.
“Smartmatic said in the lawsuit that the conspiracy theories had undermined its business relationships around the world, resulted in a wave of threats against its staff, and contributed to a $767.4 million drop in its parent company’s projected profits over the next five years. Additionally, the lawsuit said, Smartmatic will need to spend $350,000 annually over the next two years in increased security costs to protect the physical safety of its workers and nearly $5 million in fees over the next five years to safeguard the company from a ‘meteoric rise’ in cyberattacks.”
Well, that’s fairly specific. Of course with respect to the $767.4 million, $350,000, and $5 million they’ll have to show their math. They probably can.
Defamation lawsuits pit the right to not be harmed by false witness against notions of free speech. But no freedom is unlimited. In the classic example, your freedom to swing your arm stops where my nose begins; and if your arm doesn’t stop, you can be held criminally and civilly liable for the damage to my physical appendage. Words can harm, too; think of them as a swinging arm.
There are societal interests at play, and these are complicated. The general bias of our system favors freely debating disputed matters of public interest, such as whether an election result was tainted by fraud or malfunctioning voting machines, and the best way to get at the truth is to let people talk — a full airing. But this gets dicier where arguments are flat-out false.
In court, lawyers are can offer a version of what happened that may not be true, but are expected to support it with evidence. A lawyer can’t lie to a court or jury, and can get in trouble for making baseless claims or arguments. And, needless to say, the freedom to argue a theory of a case doesn’t extend to fabricating evidence or coaching witnesses to lie.
Outside of court, not litigating a case, speaking as ordinary citizens, lawyers are on the same speech restraints as everyone else. They have no special responsibility, and get no special privilege. The statements for which Giuliani and Powell are being sued fall in this category; they’re not being sued for their courtroom arguments. For the most part, they never made courtroom arguments, because their election lawsuits were dismissed before getting that far.
Journalists and news organizations aren’t under the same rules of professional responsibility, but they don’t have total libel immunity, either. Smartmatic may argue — and with some justification — that what those defendants did wasn’t journalism anyway. And added dimension is Smartmatic could argue they lied about the company for profit (increased viewership and the ad money it brings in).
I can’t say for sure how this will play out in the courts. Given an innocent victim of false conspiracy theories, it’s hard to argue spreading those lies was privileged and protected by the First Amendment. Multiple legal experts are saying this lawsuit “has real teeth.” What the defendants did “is the very definition of defamation,” according to one (read story here).
There ought to be consequences for lying. That’s the moral of the fable about the little boy who cried “Wolf!” to get attention. On the larger scale of things, our democracy just came under violent assault, and one of our best protections against it happening again is to make those responsible pay, and pay, and pay. There needs to be a powerful deterrent against a political culture of demagoguery, lies, lawlessness, and mob rule.
Smartmatic is also going to have to overcome the fact all the speech involved is political speech which has received the highest protections.
And it would not be helpful if a smart white hat or turned black hat demonstrates how vulnerable the machines actually are. Like in pool halls there is always someone else who is smarter or more clever hacker. It may well be demonstrated the old fashion counting of ballots by hand is the most secure and accurate method. With protections put in place by centuries of doing it the old fashion way.
So LA is paying three quarters of a billion dollars on Smartmatic.
Adding to the confusion two democrats in house races are challenging the accuracy of machines used to count the votes in their races.
Slandering a business isn’t “political speech” just because it happens in the context of an election. Smartmatic wasn’t a candidate or promoting a policy. It’s a vendor, not a political actor. The time to prove the machines “were vulnerable” was in the dozens of lawsuits challenging the election. That ship has left the dock. And if Smartmatic wasn’t used outside L.A. county, claiming their machines flipped votes in other states is false and defamatory on its face. Anthony Brindisi’s election challenge in New York has nothing to do with Smartmatic machines, nor is he peddling absurd conspiracy theories; he’s doing nothing New York election laws don’t entitle him to do, and he hasn’t defamed a voting machine company; at most, he’s alleged voting machine errors in court filings, or so the Washington Examiner says, but the Politico article they linked to makes no mention of that. (Links here and here.) Who’s the other “democrat” you’re talkikng about?