Defamation Lawsuit Over Statements Related to 2020 Georgia Ballot Counting Controversy Dismissed

The lawsuit is brought by Jacki Pick against Georgia Secretary of State Brad Raffensperger, based on statement in Raffensperger's book, Integrity Counts.

From Pick v. Raffensperger, decided Nov. 22 by Judge Eleanor Ross (N.D. Ga.), but only posted several days ago on Westlaw (an appeal is pending):

On November 3, 2020—election day—State Farm Arena in Atlanta, Georgia, served as a site for ballot counting. The ballot counting activity at State Farm Arena was recorded in an over 20-hour long Surveillance video ("Video"). After the 2020 election, Plaintiff (a licensed but non-practicing attorney) volunteered to "assist with election related matters in Georgia" and, in that capacity, "helped organize and summarize investigative facts and affidavits" from individuals alleging "potential or actual irregularities, misconduct, or fraud in the administration" of the election. Two of the affidavits Plaintiff assisted with were from individuals alleging irregularities in ballot processing at State Farm Arena.

On December 3, 2020, the Georgia State Senate Election Law Subcommittee held a hearing about the "alleged election irregularities, misconduct, or fraud in the 2020 election." Plaintiff attended the hearing and made a presentation using the Video. She did not show the Video in its entirety; rather, she "instructed the A/V tech multiple times to 'fast forward' or 'back up' to various times on the single video file[.]"

During her presentation, Plaintiff pointed to the ballot containers shown on the screen and said, "I'm going to call [the "containers for ballots"] a suitcase." Plaintiff, the only person to present the Video at the hearing, focused her presentation "solely on questions and potential irregularities that anyone could observe from the [V]ideo, matched to the statements in witness affidavits," and she raised "legitimate questions of why the ballots under the table were separate from the others and not coming from the same place that ballots had come from throughout the day."

In Integrity Counts, Defendant referred to the segments of the Video that Plaintiff showed during her presentation at the December 3, 2020 hearing as (1) "GIULIANI's SLICED-AND-DICED VIDEO," (2) "deceptively sliced and edited so that it appeared to show the exact opposite of reality," (3) "a slice of video that removed the clear evidence that Fulton County election works had protected the ballots and the process as required by law," (4) "chopped up," and "sliced and diced." Defendant allegedly also testified that the Video was "doctored" or "false." Plaintiff alleges that, through those statements, Defendant falsely accused Plaintiff of a crime under Georgia law—i.e., presenting misleading and false evidence to the Georgia legislature.

Defendant also recounts in his book that his office had to "punch down lies" or had to correct "outright lying" that the official boxes containing ballots were "suitcases" or "secret suitcases." He republished in the book a journalist's statement that "if you are someone who doesn't even believe the simple, basic fact (that has nothing to do with anything) that these are not suitcases - you live in a world outside of reason & reality." According to Plaintiff, through those statements, Defendant falsely accused her of "sensationalizing" by using the term "suitcase" when, in fact, poll workers and Defendant's own state election monitor use that term for "ballot transfer bags." …

[a.] "Suitcase"

To maintain a defamation claim concerning Defendant's statements about ballot containers identified as "suitcases" or "secret suitcases," Plaintiff must plausibly allege that the statements were "concerning" her. That is, she must allege that the statements "refer to some ascertained or ascertainable person, and that person … is the plaintiff." Plaintiff has failed to do so. Not only is Plaintiff not mentioned by name in Integrity Counts, Defendant's "suitcase" statements do not refer to her by "ascertainable implication."

Plaintiff claims that Defendant falsely accused her of sensationalizing the events at State Farm Arena through her reference to ballot containers as "suitcases." According to Plaintiff, "'suitcase' is field jargon commonly used by Fulton County election workers to describe ballot containers." As discussed here, this is how Plaintiff used the term during her December 3, 2020 presentation, and nothing in Integrity Counts's discussion of "suitcase" suggests that the book was referring to those individuals who use the term simply as "field jargon." Integrity Counts does not place in it its crosshairs those individuals who informally refer to official, secure ballot containers as "suitcases"; rather, it accuses those using the term in such a way as to advance the view that ballots were maintained in unofficial, unsecured containers (e.g., literal suitcases). In republishing a journalist's statement that "if you are someone who doesn't believe the simple, basic fact … that these are not suitcases –you live in a world outside of reason & reality," Defendant makes clear that the journalist is referencing an image of a "secure case to hold ballots." The thrust of the statement concerns those who believe that referenced ballot containers are literal suitcases as opposed to legitimate receptacles for ballots.

Similarly, Defendant's statements regarding the existence of "secret suitcases" being lies is concerning those individuals implying or asserting that those ballot containers were not official, secured ballot containers. Specifically, Defendant recounts one of his staff members explaining that "[w]hat you saw, the 'secret suitcase' [with Gabe's air quotes] with magic ballots, were actually ballots that had been packed into those absentee ballot carriers by the workers in plain view of the monitors and the press." The reasonable read of this statement is not that it is sensationalism or a lie to call ballot containers "suitcases" but that it is a lie to say that there were "secret suitcases" packed, outside of the presence of monitors and the press, with ballots from outside of the normal chain of custody.

Plaintiff, although she used the term "suitcase" during her presentation at the December 3, 2020 hearing and questioned why the ballots in the "four suitcases … underneath the table" were "separate from all the other ballots" and why they were counted "whenever the place is cleared out with no witnesses," she did not imply that the containers she referred to were literal suitcases or were something other than ballot containers used in the regular course of vote counting. Rather, she explained to her audience that in using the term "suitcase" she was referring to the "containers for ballots" seen at State Farm Arena. Thus, Plaintiff has not plausibly alleged that Defendant's "suitcase" statements were concerning her. In view of this failure to establish that necessary element, Plaintiff's various forms of defamation by libel and defamation per se claims premised on the "suitcase" statements fail.

[b.] "SLICED-AND-DICED VIDEO," etc….

Plaintiff claims that Defendant falsely accused her of slicing and dicing the Video, of deceptively slicing and editing it, of presenting a slice of the Video that removed contrary evidence, and of chopping up and doctoring the Video. But her own allegations (and the transcript of the December 3, 2020 hearing presentation) establish that Plaintiff showed only select portions of the over 20-hour Video. Specifically, Plaintiff alleges that she fast forwarded and reversed "to various times on the single video file." During her presentation, Plaintiff plays select sections of the Video. Thus, it is true that Plaintiff showed only select portions of the Video. In view of that, it is not false to say that slices of the Video were presented or that portions of the Video were edited out or removed.

Moreover, the underlying gist of the descriptors such as "sliced and diced" and "chopped up" is that selective segments of the Video were shown. That underlying gist—the selective showing—is true. Integrity Counts takes aim at that selective showing, by figuratively or hyperbolically referring to the segments as "sliced and diced," "chopped up," etc. Such use is not actionable. Horsley v. Rivera (11th Cir. 2002) (concluding that "rhetorical hyperbole" is "protected by the First Amendment and by Georgia law").

Contrary to Plaintiff's argument, Defendant does not accuse anyone of physically altering the Video's contents to present something different than what was recorded. Rather, considered in the context of the Chapter in which they are presented, the only reasonable reading of Integrity Count's statements about the Video is that they accuse the individuals using the Video to support their position that fraudulent ballots were being counted of misleading their audience or of not showing reality by failing to show portions of the Video making the chain of custody for those ballots apparent. In doing so, Defendant uses hyperbolic speech or truthfully recounts that the Video was "sliced" or "edited" to "remove" portions contradicting the fraudulent ballot claim….