In each of the lawsuits, Dominion uses the defendants’ words against them, citing dozens of public statements they made in media appearances and at public events spreading the lie that the voting-machine company helped steal the election from Trump.
U.S. District Judge Carl J. Nichols seemed skeptical Thursday of the argument from Lindell’s attorney that the Republican donor was merely opining on the important issue of election security.
“The public debate about election security is not the same as saying a particular company intentionally committed voter fraud,” Nichols said.
Lindell stands by his comments because “he knows them to be true,” his attorney Andrew Parker said, adding that the debate over such claims should play out in the “marketplace of ideas,” not in the courtroom.
Whether the lawsuits are successful will hinge in part on Dominion’s ability to show that false statements, which Dominion says were presented as fact, harmed the company and that the three were acting with “actual malice” in making their remarks. The high burden is on Dominion to demonstrate that Trump’s allies knew their statements were false or made with a “reckless disregard for the truth.”
That is not an easy standard to meet, according to Roy Gutterman, a First Amendment expert and director of the Tully Center for Free Speech at Syracuse University’s law school.
“It’s more than just being irresponsible. It’s really ignoring information,” he said.
Dominion attorney Thomas Clare told the court Thursday that the lawsuits, seeking more than $1.3 billion in damages, are based on specific allegations and statements. The company sent detailed retraction letters that he said put Trump’s allies on notice that their accusations were false.
“It’s hard to disclaim knowledge when we put it right in front, in black and white,” Clare said.
At the end of the four-hour hearing, Nichols said he anticipates resolving the motions to dismiss in a written opinion or opinions that could come at any time. If Nichols allows the cases to proceed, the voluminous examples included in the lawsuits will probably be whittled down to a smaller set of critical statements. The cases could also serve as a guidepost for people who appear on TV to advocate for one side of a political debate.
Dominion has filed a separate $1.6 billion defamation lawsuit against Fox News, alleging that the network intentionally amplified false claims about the company to improve ratings. A second voting company, Smartmatic, has also filed a defamation lawsuit against Fox and prominent commentators. Fox has moved to dismiss both cases.
Powell’s lawyers have urged the judge in Washington to dismiss the case, saying her comments are constitutionally protected political speech and should be viewed as opinions and legal theories.
No “reasonable person” would have believed that her statements were “truly statements of fact,” according to Powell’s attorneys.
Powell, a Texas-based attorney, made similar claims about the election and Dominion in court that were repeatedly dismissed by judges throughout the country. The federal Cybersecurity and Infrastructure Security Agency also issued a statement calling the 2020 election “the most secure in American history.”
During questioning of Powell’s attorney, the judge referred specifically to her claim that Dominion was established with communist money in Venezuela and that it uses software originally created to help now-deceased Venezuelan president Hugo Chávez fix elections. In reality, Dominion was founded in Toronto, in the basement of chief executive John Poulos, to “help blind people vote on paper ballots,” the complaint says.
Nichols also read from a Newsmax interview Powell gave after the November election in which she said she had video evidence of Dominion’s founder saying he could “change a million votes.” No video ever emerged.
“You’ve conceded there is no such video,” said Nichols, a nominee of Trump.
“I don’t want to concede anything,” responded Powell’s attorney, Howard Kleinhendler.
For his part, Giuliani has called the lawsuit an effort to “wipe out and censor the exercise of free speech.” Giuliani denies that he has defamed the company “or that he has engaged in any wrongful or malicious conduct toward” Dominion, according to his attorney, Joseph D. Sibley.
Sibley said Dominion has shown only “fuzzy, reputational injury” and did not demonstrate, for instance, specific lost profits because of the allegations.
The hearing came as New York state on Thursday suspended Giuliani from practicing law because of the “demonstrably false and misleading statements” he made to courts, lawmakers and the public as a lawyer for Trump’s 2020 campaign.
Dominion’s lawyer has said the company went to court not only to seek financial compensation, but to restore its reputation and ensure a public airing of the issues at trial so that the false allegations are disproved and Americans can “have faith in their election systems.”
As the false claims about Dominion spread, the company said its employees were harassed and received death threats. The company says it has spent more than $565,000 on protection for personnel since the election.
Lindell’s lawyers said in court filings that Dominion opened itself up to criticism and commentary by taking on a key government function of recording and counting votes. Lindell’s team called the lawsuit “nothing more than a media-driven ploy to discredit or silence anyone who exposes Dominion’s voting systems as the hackable and exploitable threat to American democracy that they are.”
In response, Dominion’s lawyers said the case should be allowed to proceed because a reasonable jury could conclude that Lindell and his MyPillow company promoted “the inherently improbable Big Lie that the election had been stolen from Trump because they thought their defamatory marketing campaign would dupe Trump supporters into buying MyPillows.”