The Volokh Conspiracy
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Voting Machine Company Smartmatic's Defamation Suit Against Ex-Trump-Lawyer Sidney Powell Can Go Forward
From Judge Carl Nichols' opinion Monday in Smartmatic USA Corp. v. Powell (D.D.C.):
Smartmatic USA Corp. [and related companies] sued Sidney Powell for making allegedly defamatory statements about Smartmatic's role in the 2020 election. Powell moved to dismiss the complaint ….
Powell raises four categories of substantive challenges to Smartmatic's underlying claims. She contends that Florida's single publication/action rule bars Smartmatic from asserting claims for both defamation and injurious falsehood based on the same statements. She argues that the Court should dismiss Smartmatic's injurious falsehood claims for failing to plead special damages. She contends that several of Smartmatic's defamation claims are deficient for not pleading special damages because they actually sound in injurious falsehood. And she argues that the Court should dismiss certain claims that are supported only by statements made by individuals other than Powell….
The court concluded that Florida law does allow suing both over defamation and the related tort of injurious falsehood, and that Smartmatic had adequately alleged damages. And it had this to say about Powell's argument that Smartmatic hadn't sufficiently alleged defamatory statements by Powell:
Counts II and VIII allege defamation and injurious falsehood where "Ms. Powell, Mr. Giuliani, and Fox published and/or republished false statements and implications … that Smartmatic's election technology and software were widely used in the 2020 U.S. election including in contested states where claims of election fraud were made." These claims rely on two of Powell's statements: (1) "[T]his is a massive election fraud. And I'm very concerned it involved, not only Dominion and its Smartmatic software, but that the software essentially was used by other election machines also," and (2) "We're talking about the alteration and changes in millions of votes …. Computers being overwritten to ignore signatures. All kinds of different means of manipulating the Dominion and Smartmatic software, that of course we would not expect Dominion or Smartmatic to admit." Powell contends that "neither involve the contention that Smartmatic's election technology and software were widely used."
But a reasonable jury could conclude that Powell's statements amounted to defamation and injurious falsehood regarding the widespread use of Smartmatic's election technology and software in the 2020 election. In particular, Powell's statement about "the alteration and changes in millions of votes," including through "different means of manipulating the Dominion and Smartmatic software," is sufficiently on point to substantiate these claims as "plausible on [their] face."
Counts IV and X allege defamation and injurious falsehood where "Ms. Powell, Mr. Giuliani, and Fox published and/or republished false statements and implications … that Smartmatic's election technology and software were compromised and hacked during the 2020 U.S. election." These claims rely on two of Powell's statements: (1) "[T]he CIA and the FBI and other government organizations have received multiple reports of wrongdoing and failures and vulnerabilities in [Dominion's and Smartmatic's] product," and (2) "[E]very time there was a glitch, as they called it, or connection to the Internet, they also violated state laws that required the machines to be certified and nothing to be changed before the votes. There are any number of legal grounds on which the use of those machines has to be stopped and the votes invalidated." Powell argues that these statements are insufficient because "[t]hey do not contend that Smartmatic's election technology and software was hacked during the 2020 election."
Although Powell raises a fair point that these statements, when read in isolation, do not directly assert that Smartmatic was hacked, the remark that the government "received multiple reports of wrongdoing and failures and vulnerabilities in [Dominion's and Smartmatic's] product" is enough to survive dismissal at this stage when considered with the surrounding context and related allegations….
