Sidney Powell, a Trump campaign lawyer, is being sued by a voting machine company for defamation.
After Trump lost, Powell (photo, left) claimed Dominion Voting systems’s voting machines stole the election for Biden. The election wasn’t stolen, there’s no evidence backing up her claims, and now she admits her claims were false.
But in court filings, her lawyers are arguing that “reasonable people would not accept” her “wild accusations and outlandish claims” as factual.
That’s undoubtedly true, as far as it goes, but lots of unreasonable people did believe her baseless conspiracy theories. Read story here.
The problem she faces, as I see it, is that plausibility isn’t an element of the defamation tort. The exact legal rules vary by jurisdiction, but for general purposes, this description of what a plaintiff must prove is as good as any (source here):
- The statement, which must be about another person, must be false.
- The statement must be ‘published’ to a third party, who cannot also be the person who is being defamed. Publishing in this context does not mean that it must be printed, but purely that the statement has to be ‘made available’ to someone other than the person about whom the statement was made.
- If the nature of the statement is ‘of public concern’ the person who has published it must be at least liable in negligence. Public figures who seek to prove that they have been defamed must prove an additional element under the First Amendment of the US Constitution, that in publishing the statement the defendant was acting with ‘actual malice’ (by publishing something they know to be a lie) or at least to have a total disregard for whether the statement is true or not.
- The person about whom the defamatory statement is made must be ‘damaged’ by the statement. In some states, it is sufficient to establish that the plaintiff suffered ‘mental anguish’ as opposed to ‘damage.’
Legal experts say the lawsuits against Powell (and other defendants) by Dominion and Smartmatic, another voting machine company, aren’t a “slam-dunk,” and the plaintiffs likely will have to prove actual malice, but are relatively “straightforward” and have “a good shot of winning” compensation for provable harm to their businesses. (Story here.) Both companies claim they’ve lost business and suffered harm to their reputations.
A statement isn’t defamatory if it’s true. By asserting her statemens weres so outrageously false that only Capitol rioters and other Trump supporters would believe them, she’s conceding the first element. And that still leaves half the country who did believe them.
Frankly, I don’t see this succeeding in court, but I can see law professors making hay with it. (In case you didn’t know, law professors enjoy torturing law students, in fact, they live for it.) Imagine throwing this problem at a hapless first-year torts class:
The defendant, Tom Jones, put up flyers across town accusing the plaintiff, John Smith, of killing babies and drinking their blood. Smith sues Jones. In court, Jones claims Smith wasn’t harmed because nobody in town believed the posters. What result?
Now let’s change the facts slightly. Suppose all but one of the town residents laughed off the posters as obviously fake, but the person who did believe the accusation firebombed Smith’s house because to drive Smith out of town. Does this lead to a different result, and if so, why?
If Dominion and Smartmatic show they’ve lost business and/or suffered reputational harm because of Powell’s conspiracy theories, that’s a molotov cocktail through the window. They also want punitive damages to punish her and deter other rhetorical bomb-throwers.
If Powell’s nominal defense is, “Yeah, I lied when I said you kill babies and drink their blood, whaddya gonna do about it, neener neener,” her actual defense may be bankrupcy court. And it’s hard to argue she doesn’t deserve it.
Update (3/24/21): Distinguished legal experts think she’s as stupid as she looks. (Read story here.) At first blush, this is surprising, given she completed college and was admitted to law school while still in her teens. Obviously, she’s intelligent (unlike Homer Simpson). But intelligent and smart are two different things, and it’s perfectly possible for highly intelligent people to make idiotic mistakes (in fact, it happens all the time). True, she exhibits a certain cleverness; but she’s what some folks call “too clever by half.” If you don’t know what that means, look it up (here).
Voting machines are not people, They are things or objects. People and particularly competitors can say harsh things about a product. There is a problem with a company suing an attorney who was working in the best interests of her client that could be a chilling effect and a violation of the attorneys first amendment rights. Ultimately this may be a poor precedent to allow companies to pursue this kind of case. Designed more to quiet or punish opponents and not i the public interest. [This comment has been edited.]
You definitely can be sued for making false statements about a product. The first amendment only prohibits government censorship; it’s not a defense in a private defamation suit. These statements were made out of court, to the press and public, not in court in the course of representing her client. How is lying about an election in the public interest?