I conclude my forthcoming book on Disinformation (to be published by Macmillan, I don’t know exactly when) with a chapter on ways to help slow the spread of disinformation. One suggestion is defamation lawsuits. The example I used was when the Sandy Hook parents successfully sued Alex Jones over his theories that the parents were crisis actors and the shooting had been staged.
Now Fox and others are being hit with major defamation lawsuits over the election lies. It’s been said that Fox can survive these lawsuits–but if these cases go to trial and Fox loses, I have my doubts.
Basics about defamation
You have a right to lie. You don’t have a right to tell lies that cause harm or damage to people. Bringing a successful defamation (or libel) suit therefore requires, among other things, that the plaintiff shows damages.
Defamation law varies from state to state, but generally the law looks like this: To prove a charge of defamation against a person or company, a plaintiff must prove (by a preponderance of the evidence) these four elements:
- A false statement purporting to be fact;
2. publication or communication of that statement to a third person;
3. fault amounting to at least negligence; and
4. damages, or some harm caused to the person or entity who is the subject of the statement.
The Smartmatic Lawsuit
Smartmatic’s complaint is here. It’s 277 pages.
A complaint is the document filed in court that kicks off the lawsuit. It’s the first of many pre-trial documents filed with the court. After the plaintiff files the complaint, the defendant is then required to respond with their own briefing.
The defendants in the Smartmatic lawsuit are:
- Fox Corporation
- Fox News Network, LLC
- Lou Dobbs
- Maria Bartiromo
- Jeanine Pirro
- Rudy Giuliani
- Sidney Powell
Damages sought: $2.7 billion plus attorney fees and much more. Here’s the list:
I. The Lie (element #1)
Plaintiffs allege that the defendants always knew that Biden and Harris won the 2020 election and that the election was not “stolen” or “rigged” or “fixed.”
To make their story a good one, the defendants needed a villain, someone their audience could hate, a villain bad enough to incite an angry mob.
They didn’t have a villain, so they invented one: Smartmatic, an election technology and software company; a company that played a small non-controversial role in the 2020 election.
Defendants invented this story: Smartmatic was a Venezuelan company under the control of corrupt dictators from socialist countries. Smartmatic’s election technology and software were used in many of the states with close outcomes. And Smartmatic was responsible for stealing the 2020 election by switching and altering votes to rig the election for Joe Biden and Kamala Harris.
Much of the 277 pages are spent detailing the lies told by the defendants. Here are some examples:
Pirro and Dobbs endorsed Powell’s claim that Smartmatic was part of a “criminal conspiracy” to fix the election. (p. 45) Also:
Here’s Dobbs spreading the Venezuela nonsense:
To take one more example, even though they knew there was no evidence of a “backdoor,” Bartiromo said:
They throw a bit of shade by putting “news anchor” and “journalist” in quotation marks. This matters because element #1 says that the lies have to be put forward as facts.
Giuliani, Pirro, and Powell are lawyers and are thus ethically bound to tell the truth. This also supports the first element, that the lies were passed off as truth by people with legal credentials.
II. Communicating the Lie to Others (Element #2)
In November and December 2020, Fox News broadcasted thirteen (13) reports stating and implying that Smartmatic had stolen the 2020 U.S. election. They repeated the story in articles and social media postings. Night after night, publication after publication, Fox News reached out to its millions of viewers and readers around the world with a story: Joe Biden and Kamala Harris did not win the 2020 election; Smartmatic stole the election for them.
Millions of people believed the lies. The specific lies spread by the defendants:
III. Fault of (at least) Negligence (element #3)
Smartmatic alleges “actual malice.” In other words, the defendants were not merely carelessness–they allege that the defendants deliberately and knowingly lied with a view to causing harm to Smartmatic (because the harm would benefit them.)
Specifically, Smartmatic alleges that the defendants “purposefully avoided learning the truth about Smartmatic and its election technology and software” and that “Defendants had access to information showing their statements and implications about Smartmatic and its technology and software were factually inaccurate.”
To prove actual malice, Smartmatic offers evidence that the defendants:
- Had access to the truth
- Violated well known journalistic standards
- Spread the lie for personal enrichment and so that Fox could “solidify” its hold on Trump supporters.
[Actual Malice, by the way, is the heightened standard needed if a publication or media company defames a public figure. I don’t think Smartmatic counts as a “public figure,” but their lawyers are not taking any chances. They are alleging actual malice and offering evidence of actual malice.)
IV. Damages (element #4)
Smartmatic recounts its history as a startup technology company and successes; the extremely limited role Smartmatic played in the 2020 election through use of their machines in Los Angeles; the accuracy of the election results and reports showing that the election was “the most secure in American history.”
Smartmatic then alleges that the company “was irreparably harmed” by these lies.
Smartmatic further alleges that the defendants consciously and deliberately invented a lie as a way to “capitalize” on Trump’s popularity.
- Smartmatic and its officers received hate mail and death threats.
- Smartmatic’s clients and potential clients panicked.
- The company’s reputation for providing transparent, auditable, and secure election technology and software was irreparably harmed.
- Overnight, Smartmatic went from an under-the-radar election technology and software company with a track record of success to the villain in Defendants’ disinformation campaign.
Smartmatic emphasize that as their company was damaged, the defendants enriched themselves:
This helps with collecting damages, obviously. If I lie and it hurts you, that’s bad. If I lie and it hurts you and the lie enriches me, then that’s doubly bad.
Yesterday Fox cancelled Lou Dobbs’ show. Was it because of the lawsuit? The timing suggests that it was at least partly because of the lawsuit. Much of left-leaning Twitter is now eagerly awaiting news that Jeanine Pirro has also been canned.
I’ll point out scaremongers on the left were also attacking Smartmatic and other voting machines before the election. Yet another reason to be careful. People with a large audience who are slandering voting machines in general might want to be careful. Just saying.
Tomorrow I’ll do the Dominion lawsuit.
