The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
U.S. Dominion's defamation suits against Kraken lawyer Sidney Powell, Rudy Giuliani, and My Pillow CEO Mike Lindell will proceed. Yesterday, Judge Carl Nichols of the U.S. District Court in D.C. denied the defendants' motions to dismiss in their entirety in a combined opinion.
Each of the different defendants made slightly different claims, but Judge Nichols rejected them all. Powell, for example, tried to argue that her allegations about Dominion voting machines were simply matters of opinion, and therefore could not be defamatory. No dice, Judge Nichols explained.
Powell contends that no reasonable person could conclude that her statements were statements of fact because they "concern the 2020 presidential election, which wa both bitter and controversial," Powell's Mot. at 38, and were made "as an attorney-advocate for [Powell's] preferred candidate and in support of her legal and political positions," id. at 39. As an initial matter, there is no blanket immunity for statements that are "political" in nature: as the Court of Appeals has put it, the fact that statements were made in a "political 'context' does not indiscriminately immunize every statement contained therein." Weyrich, 235 F.3d at 626. It is true that courts recognize the value in some level of "imaginative expression" or "rhetorical hyperbole" in our public debate. Milkovich, 497 U.S. at 2. But it is simply not the law that provably false statements cannot be actionable if made in the context of an election.
Powell similarly argues that her statements were protected commentary about other lawsuits. But Powell cannot shield herself from liability for her widely disseminated out-of-court statements by casting them as protected statements about in-court litigation; an attorney's out-of court statements to the public can be actionable, even if those statements concern contemplated or ongoing litigation. Messina v. Krakower, 439 F.3d 755, 761–62 (D.C. Cir. 2006) (recognizing no privilege when statement is published to persons not having an interest [in] or connection to the litigation") . . .
The question, then, is whether a reasonable juror could conclude that Powell's statements expressed or implied a verifiably false fact about Dominion. Milkovich, 497 U.S. at 19–20. This is not a close call. To take one example, Powell has stated publicly that she has "evidence from [the] mouth of the guy who founded [Dominion] admit[ting that] he can change a million votes, no problem at all." Powell Compl. ¶ 181(j). She told audiences that she would "tweet out the video." Id. These statements are either true or not; either Powell has a video depicting the founder of Dominion saying he can "change a million votes," or she does not.
Judge Nichols also rejected defendant's claims that Dominion failed to adequately plead "actual malice" and the efforts to challenge venue and jurisdiction. The opinion is a thorough drubbing. (And, for those who care about such things, Nichols is a Trump appointee.)
We will see more of these suits. Just this week Dominion also filed defamation claims against Newsmax and One America News Network (OANN). It has also sued Fox News.