By Steven J.J. Weisman
BOSTON — On August 11, Federal Judge Carl Nichols denied the motions to dismiss filed by Sidney Powell, Rudy Giuliani and Mike Lindell in regard to the defamation lawsuits filed against them by Dominion Voting Systems. The defamation lawsuits stem from false claims Powell and Giuilani, both attorneys who had worked on the Trump presidential campaign and Lindell, the CEO of My Pillow, Inc and a frequent media commentator each had made about fraud in the 2020 presidential election, specifically related to baseless claims that Dominion had altered votes in favor of President Biden.
According to Judge Nichols, “It is true that courts recognize the value in some level of ‘imaginative expression’ or ‘rhetorical hyperbole’ in our public debate…But it is simply not the law that provably false statements cannot be actionable if made in the context of an election.”
As the late senator Daniel Patrick Moynihan said, “You are entitled to your opinion. But you are not entitled to your own facts.”
And it is true that false facts perpetrated through the media can cause tremendous harm. This week, the FBI arrested Matthew Taylor Coleman who confessed to killing his two young children because he believed a QAnon conspiracy theory that his children had serpent DNA passed to them through their mother. We also all remember the Pizzagate conspiracy of 2016 discussed by members of the media including Alex Jones. According to this totally outrageous and false theory, Hillary Clinton and others were involved in a human trafficking and child sex ring at the Comet Ping Pong pizzeria in Washington D.C. Believing the theory to be true, Edgar Maddison Welch went to the pizzeria and fired his AR-15 rifle into the restaurant. He was later arrested and convicted.
Numerous courts have looked into allegations of fraud in the 2020 presidential election and none have concluded that there is any factual basis for these allegations. Even President Trump’s own Attorney General William Barr confirmed that there was no substantial fraud in the 2020 election and no evidence of fraud by Dominion Voting Systems.
Because of lies spread on media about Dominion being involved in voter fraud, threats have been made against the lives of Dominion employees and the company alleges that its business has been considerably harmed.
To date, Dominion has sued Giuliani, Powell, Lindell, as well as Patrick Byrne, One America News Network, Newsmax, and FOX News. Dominion has indicated that it is still considering 150 more lawsuits.
In response to the recent lawsuit filing against it, Newsmax issued a statement saying “While Newsmax has not reviewed the Dominion filing, in its coverage of the 2020 Presidential elections, Newsmax simply reported on allegations made by well-known public figures, including the President, his advisors and members of Congress – Dominion’s action today is a clear attempt to squelch such reporting and undermine a free press.”
It should be noted that in April, Newsmax apologized to Dominion employee Eric Coomer for baselessly alleging he rigged the vote count against President Trump. Following the apology, Comer dropped Newsmax from his defamation lawsuit. Additionally, Newsmax reporter Bob Sellers walked out of a live interview with Mike Lindell when Lindell persisted in making false statements about the election.
So what rights and obligations do the media have in these situations?
While the Dominion lawsuits allege defamation per se, which does not require even proof of harm, but merely defamatory statements alleging commission of a crime, the primary thrust of defamation law involving the media was set years ago in the famous case of NY Times v. Sullivan in which the court unanimously recognized the importance of the media being able to report on newsworthy topics without the threat of being sued for minor errors in reporting. In that case the Supreme Court set the standard that for media to be held liable for defamation, the media statements must not only be false, but the statements made by the media must be done with malice or a reckless disregard for the truth. Malice in this case is deliberate lying. In their lawsuits Dominion argues that all of these defendants amplified and endorsed obvious falsehoods and therefore acted with either malice or a reckless disregard for the truth.
In its complaint against One America News Network, Dominion cites the example of the network’s interview with Edward Solomon who claimed to be a mathematician who spoke of evidence he found of algorithms rigging the election. Not only is there no legitimate evidence of such algorithms, but Solomon has no degree in mathematics. According to Dominion, he is an installer for a swing set company who is also a convicted felon. The failure of OANN to properly vet Solomon before interviewing him could well be considered to be a reckless disregard for the truth.
There is a responsibility that comes with the microphone and camera and that responsibility is to not make statements that you know to be false or to make statements of fact when you have not properly investigated the basis for making those statements.
Steven J.J. Weisman is a practicing attorney, legal editor for TALKERS magazine, a professor of Media Law at Bentley University in Waltham, Massachusetts and publisher of the website www.scamicide.com. He can be e-mailed at: email@example.com. Steven J.J. Weisman is available as a guest to discuss legal matters and the subjects of identity theft and scams.