On the Voting Machine Libel Suits, Hold the Schadenfreude

Smartmatic and Dominion aren't wrong, but it remains true that "hard cases make bad law"

Welcome to Second Rough Draft, a new newsletter about journalism in our time, how it (especially its business) is evolving, and the challenges it faces.

If you’re like me, you may have wondered over the last five years when Donald Trump’s lies (ultimately 30,000!) would stop—or, when it became clear that they wouldn’t, whether they would ever have consequences.

Important consequences of a sort did ensue, of course, on November 3 (or November 7 or December 14 or January 5 or January 6 or January 20, as you prefer— although not at Trump’s second impeachment trial).  But what about some sort of punishment for the lies themselves?

Now there appear to be consequences in three libel suits filed recently by voting machine companies Dominion and Smartmatic against Rudy Giuliani, Sidney Powell and (by Smartmatic) also Fox News and a few of its minions, with more such suits ahead, including perhaps ultimately against Donald Trump himself. Each of the suits so far seeks more than a billion dollars in damages, a sum that would surely bankrupt any conceivable individual plaintiff, and would seriously wound even Fox.[1]

After allowing yourself a moment of satisfaction with this news, I want to urge you to be wary of rooting for the plaintiffs in these cases. But first, let’s set the scene.

The undisputed facts

The facts aren’t disputed by any serious person. Smartmatic and Dominion both make voting machines. Neither has been credibly accused of any misconduct in the U.S. presidential election, nor is there any indication that their machines failed to accurately record votes where they were used. Every audit of votes initially tallied by Dominion machines has found no material variance from the machine count.

Smartmatic machines were used only in Los Angeles County; Joe Biden carried California outside of that county by more than three million votes (and inside the county by almost two million), so Smartmatic is quite beside the point.

Dominion machines were used in at least 24 states last Fall, including Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin, where Biden was favored and won closer-than-expected contests, but also in Alaska, Florida, Iowa, Louisiana, Missouri, Nebraska and Ohio, all of which were won pretty handily by Trump, with Trump performing particularly better than expected in Florida, Iowa and Ohio.

So much for reality. When it became clear late on Election Night that Trump had likely lost, his dead-enders originally focused on Smartmatic, which has roots in and has done work in the past in Venezuela, and whose chairman heads George Soros’s foundation. (Yeah, I know, so what, but put that aside.)  Newsmax and Sidney Powell seem to have led the charge on crayoning these dots connecting them to fantasies of fraud. But with the inconvenient truth about Smartmatic machines having been confined to LA county, even the fantasists seem to have realized they had to move on.

That led to Dominion, which at least had machines in the places where the Trumpistas didn’t like how people had voted. So they made stuff up, spinning out increasingly elaborate conspiracies, most notably at the infamous Four Seasons Total Landscaping and Giuliani Hair Dye events, but also on the Fox, Newsmax and OAN cable channels. In his infamous incitement speech of January 6, Trump himself referred to “the highly troubling matter of Dominion Voting Systems. In one Michigan county alone, 6000 votes were switched from Trump to Biden.” Not one word of this is true, of course.

Smartmatic wasn’t in the swing states

Which brings us to the libel cases.

While Smartmatic and Dominion for the moment deny it, we should assume they are what are called “limited purpose public figures.” That means any libel case they bring must prove that anyone conveying false statements which damaged their reputation either knew what they saying was untrue or did so with what the Supreme Court has summed up as “subjective awareness of probable falsity.” If we assume for a minute that the defendants are not crazy, and thus knew they were lying[2], these would appear to be the rare cases in which plaintiffs will be able to meet this tough burden against even higher profile defendants.

Scary plaintiffs

The real rub in these cases is that the plaintiffs are significant companies, with millions of dollars in annual revenues. As someone with almost four decades of experience in libel litigation, I can assure you that those are the scariest complainants: they have the most to lose, and may have incurred the largest damages.

The voting machine companies allege they’ve lost lots of business, current and prospective, over the last three months, which is easy to imagine. Dominion is suing Powell and Giuliani for $1.3 billion each; Smartmatic, not to be outdone, is suing Fox, Powell, Giuliani, and Fox hosts Lou Dobbs, Maria Bartiromo and Jeanine Pirro for a collective $2.7 billion. Future defendants may include Sean Hannity, Michael Flynn, the My Pillow guy and even Trump. Fox and Newsmax have responded to the threat by broadcasting pieces undercutting their own previous work, and Dobbs has been suddenly taken off the air, but none of the defendants have apologized.

If all these folks lied, and the companies, having done nothing wrong, have been badly hurt, why shouldn’t you revel in your schadenfreude?

The reason is that, under American law, any libel case has the potential to effect all other libel cases, including against news organizations you may like, brought by people you don’t, and on spurious grounds. This is the case because American libel law has been heavily constitutionalized since the decision in New York Times Co. v. Sullivan in 1964. What that means is that how we define a public figure or what the burden of truth is or how we define what “true” is or what constitutes protected opinion are all constitutional questions, with the results applicable across the country, especially if promulgated by higher courts and certainly if announced by the Supreme Court.

As a result, in this country, unlike in Britain, there is essentially no overlap between attorneys defending the press and those suing the press, even though there is no prohibition on doing so, and the specialized case law is, of course, the same. Almost all U.S. press organizations regularly cooperate in the defense of each other’s libel cases, constantly filing friend of the court briefs, and sharing notes of recent developments and case strategies. When I was a young newsroom lawyer at the Wall Street Journal, for instance, I helped prepare a lawyer for the Lorain, Ohio newspaper for an oral argument in the Supreme Court, and worked on a “amicus” brief supporting his case. (It didn’t end well.)

Collateral damage ahead?

The upshot is that, if these new voting machine cases end up being actively litigated, results may be reached that vindicate the truth of what happened in the election, but make the defense of truthful reporting in other contexts more difficult. As the maxim goes, “hard cases make bad law.”

A perfect illustration comes in the Smartmatic v. Fox case, which Fox (followed by the minions) moved unusually quickly to dismiss last week. Fox’s legal theory is an expansive one (often referred to by lawyers as “neutral reportage”), which hasn’t been widely adopted, but, if it were, would be very beneficial to the press generally. The concern is that, if the theory is ultimately rejected on these very unattractive facts by the New York Court of Appeals (the state’s highest court), that might be a blow to the defense of press coverage in many other cases.

In other words, on top of the damage already done to American democracy by those Dominion and Smartmatic are suing, more damage— this time to the constitutional guarantees of freedom of speech and of the press— may lie ahead.

[1] I don’t know what the limit on Fox’s libel insurance is, but you can be highly confident it is orders of magnitude less than a billion dollars.

[2] This assumption may not apply in the case of attorney Lin Wood, which may be one reason he has not yet been sued in these cases. It could also turn out to be Sidney Powell’s and Rudy Giuliani’s best defenses, but one wonders if they would want to try invoking it. Wood and Powell will have a chance to discuss this, as he tweeted last week that he is representing her in the Dominion case.