The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Defamation Lawsuits May Leash the Kraken

The first defamation lawsuit against the Trump campaign and its allies has been filed. More seem likely.


Makes of voting tabulation machines accused of facilitating election fraud are not taking such accusations lying down. Smartmatic and Dominion Voting Systems have retained counsel and have sent cease-and-desist and record retention letters to various media outlets that have repeated false claims about their products and activities. Lawsuits are likely to follow.

As this New York Times story details, the likely defamation claims appear to have some heft. Indeed, they appear stronger than the defamation suit brought by Covington Catholic High School student Nicholas Sandmann against the Washington Post that was eventually settled. Of note, Smartmatic and Dominion have both retained attorneys with a record of bringing successful defamation claims.

Some media outlets are taking the warnings seriously. Fox News, Fox Business, and Newsmax, for instance, have aired reports discrediting some of the false and conspiratorial accusations made on their networks, including reports crediting accusations that voting machines were used to inflate Joe Biden's vote totals. Others, such as #Kraken attorney Lin Wood (who appears to be representing his #Kraken compatriot, Sidney Powell), have dismissed the threats.

Earlier today, the first suit was filed when Dr. Eric Coomer, Dominion's Director of Product Strategy and Security filed a defamation suit against the Trump campaign, Sidney Powell Rudy Giuliani, James Hoft (aka "Gateway Pundit), Michelle Malkin, Eric Metaxas, One America News Network and Newsmax Media. The complaint is here.

The various lawsuits filed by the Trump campaign and its allies have largely crashed and burned. We will see whether Team Kraken fares better on the defense.

UPDATE: In response to a few inquiries, I think these potential suits are more promising than some others out there, largely because certain figures made demonstrably false claims repeatedly, even after they should have been aware that that the claims were unfounded. Thus even if the voting machine companies are treated as "public figures," they may be able to demonstrate that at least some of the defendants acted with the degree of reckless disregard for the truth necessary to demonstrate "actual malice." This could distinguish these suits from, say, that filed by former DHS official Chris Krebs. While some of the things said about Krebs (for doing his job faithfully and effectively, no less) are positively risible, I share Ken White's skepticism about whether Krebs can successfully pursue his defamation and other claims.