“A good name is rather to be chosen than great riches”
— Book of Proverbs
Over my 56 years as a trial lawyer, mostly representing parties in civil cases, I have seen the legal system from the inside. Like all human institutions, it is far from perfect. But the courts are often the only place you can go when you believe you are the victim of a wrongful act. That includes defending your good name against unfair and false attacks.
Defamation law deals with false statements of fact that are likely to harm the reputation of a person or a corporation. The law creates a very steep hill for libel plaintiffs to climb, but it is not an insurmountable one. In recent weeks, the 2020 presidential election and defamation law have come together in three remarkable lawsuits brought by manufacturers of voting machines, one named Smartmatic and the other named Dominion.
On Feb. 4, Smartmatic went to New York state court and sued Fox News, its on-air personalities Maria Bartiromo, Lou Dobbs and Jeanine Pirro, and Trump-affiliated lawyers Sidney Powell and Rudy Giuliani. The complaint begins with these words: “The Earth is round. Two plus two equals four. Joe Biden and Kamala Harris won the 2020 election for President and Vice President of the United States. The election was not stolen, rigged, or fixed. Defendants knew the election was not stolen … was not rigged or fixed … just as they knew the Earth is round and two plus two equals four.”
That is a knockout beginning, followed by 754 paragraphs taking up 276 pages. The last paragraph asks for an eye-popping damages award of “no less than $2.7 billion (the “b” is not a typo) plus punitive damages.
In January, Dominion filed two 100-plus- page libel complaints in the District of Columbia federal court, one against Powell and the other against Giuliani. The essence of these cases, like Smartmatic’s, is that these individuals, one a member of the Texas bar and the other a member of the New York bar, peddled out-and-out falsehoods claiming the company’s voting machines shifted Trump votes to Biden and/or created nonexistent votes for Biden. Dominion is asking for damages of $1.3 billion.
Smartmatic’s business operations are focused on elections in the Philippines and other foreign countries. Its voting machines were used in last November’s presidential election in Los Angeles County and nowhere else. Dominion voting machines were used more widely, in nearly half the states. Both companies are now scrambling to deal with the results of defendants’ smear campaigns, and from the face of the complaints it appears that they have sustained real economic and reputational injuries.
These are private lawsuits, but they serve a public purpose. The courtroom is not only where a party can go to get its reputation back. It is also where you can go to send a message, not just to those you are suing but also to those who are watching. In that sense, the targets are more than a news network, its employees, and a couple of lawyers. Be warned, media outlets and others who would use their platforms to poison the public well with disinformation.
Just as product liability lawsuits against makers of dangerous machines have helped improve safety in the workplace and the home, so these cases may encourage those who engage in promoting falsehoods to think twice before calling anyone a crook.
In the words of Winston Churchill, “The United States is a land of free speech. Nowhere is speech freer.” In the landmark 1964 defamation case of New York Times v. Sullivan, Justice William Brennan explained that the role of the First Amendment is to ensure that discussion of public issues is “robust, uninhibited, and wide open.” Under the New York Times case, speakers have a constitutional right to be wrong, but the First Amendment only goes so far. It does not create a right to make up defamatory fictions, then avoid accountability for the foreseeable results. The statements challenged in the Smartmatic and Dominion lawsuits have nothing to do with freedom of speech.
If these cases go to trial, it will be up to these companies, which will be considered “public figures,” to prove that the statements are defamatory, not just protected opinions; that they are false; and that those who made them did so knowing they were false or with reckless disregard for the truth. It will be up to a jury to decide whether they have met that burden and made it to the top of the hill. In my experience, juries know how to add, and they usually get it right.
Individuals and corporations can bring libel cases, but the law does not permit countries to do so. If the law were otherwise, the United States might well sue private citizen Donald Trump for lying about our country and damaging its reputation.