[Sacho]

There's nothing strange about this defense, it's quite literally the standard defamation defense. What's very strange is that what tentatively appears to be some sort of law journal is using such a click-bait title for a bog standard motion to dismiss a defamation complaint.

Here's the motion to dismiss, since it's not available at the link from the article: https://assets.documentcloud.org/documents/20519858/3-22-21-...

The meat of the defamation defense is around page 27-28. The tl;dr is: Powell's statements were opinion, not fact, and she provided the factual source that she was basing her opinion on - classic free speech, classic defamation defense.

I certainly get the funny part about politicians(well, lawyers in this case) being untrustworthy, but defamation is purposefully narrow to allow more speech in the arena, not less. It's not so funny in a different case where a quack brings a defamation suit against the blogger exposing their product as bullshit, or when a giant corp decides to silence people online critiquing their awful business practices.

[Nursie]

This feels wrong, purely because it's not saying the statements weren't defamatory, but just that she didn't really mean it and everyone should have known that. Further, some of her statements (that she had evidence of fraud and foreign collusion) seem to be testable claims of fact, not simply opinion.

These actions took place in the context of a highly damaging campaign to undermine American democracy, and impugn multiple parties, including deliberate and repeated tarring the name of a manufacturer of voting machines.

Saying "nuh-uh, I didn't really mean it" should be no defence.

There also seems to be some "The statements were made on behalf of Sydney Powell the corporation, not the individual" in that doc, which also seems weaselly.

I hope the dismissal fails.

[Sacho]

I don't disagree about this use of defamation defense leaving a bad taste(it's been used by Trump to great success as well). I looked at the original complaint(https://context-cdn.washingtonpost.com/notes/prod/default/do...) and I don't think there's any claim that alleges she made provably wrong factual claims. They do allege that she based several of her opinions on likely false(or missing) evidence, which is promising, but the bar they need to pass is purposefully high - they'd need to prove she knew the evidence was false(or lied about it existing).

Let's try to do it differently. One solution is to only allow truthful statements - this would most likely catch Powell. But that means you have to litigate every defamation claim on its merits, you would need a trial for each to determine whether the statements are "true" or not. Consider the complexity of the Oracle vs Google case, how difficult it is to establish facts in front of a court. Now imagine every giant corp brings defamation lawsuits against its detractors - sue all the random bloggers trying to bright to light that your medicine doesn't work, or that you're using child labor. Of course you have "mountains of evidence" against it, or at least you can claim so, and force a lengthy trial against people who can't afford it. How would you tackle this problem?

Even worse, what if you publish an extensive expose, but some of your facts are wrong? This is actually what happened in the decision that paved the way for the modern defamation defense (https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan) Back then, it was the government trying to silence civil rights activism, nowadays it's more and more large corporations that would rather not have their dirty laundry aired. I genuinely don't see a way to amend the standard without sacrificing a lot of freedom of speech in the process.

What would have happened if Theranos sued all the publications that exposed their nonfunctional product? Would the publications even risk publishing if defamation suits always hang over their heads?

[Nursie]

I'm not sure, but I think there needs to be something that can hold such people to account when they embark upon a very well funded political and legal campaign to undermine democracy as they did, slinging mud in every possible direction and making up all sorts of heinous crap.

In this case a business has been materially harmed by her actions, actions which cannot have been taken in good faith (I realise we're straying into the territory of my opinions here). I think at the very least she should lose her license to practice law, and should forfeit any money made from her campaign of disinformation. She effectively weaponised her standing as a lawyer to sway public opinion, where she failed to make any progress in court.

I also think there's a difference when someone like Powell does this, in association with a political candidate, and when some whackaloon blogger makes claims.

> How would you tackle this problem?

I'll agree it's tough, and that's one great reason I'm not a legislator :)

I think there needs to be more emphasis on "loser pays" in the US. From what I understand that's quite rare. I agree that can often have unintended side effects, which is why I don't think it should be applied blanket-fashion (and why I think the "costs set at £1" rulings in UK law are a good thing).

But a generic solution? No idea. Perhaps the 'right' laws in this area don't exist yet, and it's quite hard to see what they might be.

[michaelt]

It's strange because people making this defence basically have to say their supporters are all idiots for listening to them and believing them, and it's unusual for politicians to say that out loud.

[ggm]

You see no dimension where a lawyer, making statements in their role as a lawyer has a different kind of hazard?

I'm not in law, or American. I don't see how she can put up a shingle, and espouse this kind of view.

[chrisco255]

First amendment protection is granted to all Americans.

In this case, Dominion Voting Systems is a political entity, and having control of nearly 40% of America's voting power, it must absolutely be defensible to highly criticize this corporation or we are no longer a free or democratic nation at all. Lawyers, of course have every right to speak out and call out potential fraudulent or error-prone, or socially hackable voting systems just as any other American.

From NYT v Sullivan:

"To the contention that the First Amendment did not protect libelous publications, the Court replied that constitutional scrutiny could not be foreclosed by the “label” attached to something. “Like . . . the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.”1259 “The general proposition,” the Court continued, “that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions . . . . [W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”1260 Because the advertisement was “an expression of grievance and protest on one of the major public issues of our time, [it] would seem clearly to qualify for the constitutional protection . . . [unless] it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.”1261

Erroneous statement is protected, the Court asserted, there being no exception “for any test of truth.” Error is inevitable in any free debate and to place liability upon that score, and especially to place on the speaker the burden of proving truth, would introduce self-censorship and stifle the free expression which the First Amendment protects.1262 Nor would injury to official reputation afford a warrant for repressing otherwise free speech. Public officials are subject to public scrutiny and “[c]riticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputation.”1263

https://www.law.cornell.edu/constitution-conan/amendment-1/d...

[Nursie]

> it must absolutely be defensible to highly criticize this corporation

She did more than criticise though, she made testable claims that she had evidence of fraud, that the machines were in the control of foreign powers and a variety of other things. Some were absurd, but they go beyond either opinion or criticism.

(to my reading, though I am neither a lawyer nor American, and I understand claims about damaging speech are much harder to make stick in the US. It would be hilarious and sad if dominion found a way to sue her in London...)

[ggm]

Your quoted text says unless] it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.”1261

Can you explain to me how Dominion voting systems is a political entity? They supply goods and services to the election. I truly don't get it. Are they party affiliated?

[nerdponx]

It might be standard, but it's a strange standard if you're not a legal professional.

How many people have to believe something before you either find at least one reasonable person among their ranks, or before you realize that the world is so full of unreasonable people that it makes no sense as a legal test?

[Sacho]

Sure, I get how it sounds weird. But how would you amend this standard to catch the bad people like Sidney Powell, while also allowing critique of powerful, wealthy individuals and corporations? The defamation defense(and it's related anti-SLAPP laws) have been refined over years of public discourse against snake oil salesmen and big corps trying to hide their dirty laundry. If you don't allow people to say something along the lines of: "here's my source, here's what conclusions I draw from it"(the essence of Powell's defense), then how would you allow speech critical of bad businesses?

Keep in mind, you can make anything sound ridiculous with some writing skills. How about an alternate headline - "Dominion tries to silence people claiming flaws in their voting system"?

[ggm]

Her claims went beyond flaw to alleging collusion. I kind of get your point, but I don't see her defence as a lay down misere compared to Tucker Carlson. She filed paper in the court. If she was speaking to her filings, wasn't she misleading the court?

[ggm]

I'm not a fan of voting machines. Paper and pencil work well in lots of other democracies. But that aside, Dominion suffered real harm to their share value. I think this application of a defence leaves a problem behind. She wasn't the candidate, she was a legal officer speaking to motions before the court. If not about dominion directly, didn't she file claims asserting they were parties to electoral fraud? and if the statements were not meant to be believed, what is the status of her case filed in court? Isn't she guilty of wasting the courts time?

[chrisco255]

She did NOT say her statements were not meant to be believed. That is this journalist's own sensational interpretation of the legal filing. That is all. Very important to distinguish headlines from literal quotes. You'll notice in the article that Powell is never directly quoted.

DVS systems were proven to be highly erroneous in Antirim County, Michigan, where machines were observed to have a 68% error rate: https://www.deepcapture.com/2020/12/antrim-county-computer-f...

Besides this fact, DVS systems are socially hackable, and highly vulnerable via the system's adjudication process that gives precinct IT admins and volunteers broad, unilateral powers over determining the intent of huge batches of votes (without bipartisan observers) with an overly simplistic drag and drop mechanism. Nevermind that their FTP server also used SolarWinds.

DVS deserves every bit of criticism levied by Powell and more.

Voting machines should all be banned. Especially closed source, corporate controlled voting machines. And DVS should go bankrupt.

[ggm]

As I said, I'm no fan of machine voting. But, to stay in context, I'm finding this really confusing. Can you explain the Venezuela thing? Is this actually legitimate and Powell has evidence of foreign interference through dominion? (You did say every bit..)

[Sacho]

It doesn't sound like it. It's point two of the original complaint(https://context-cdn.washingtonpost.com/notes/prod/default/do...):

> Powell’s wild accusations are demonstrably false. Far from being created in Venezuela to rig elections for a now-deceased Venezuelan dictator, Dominion was founded in Toronto for the purpose of creating a fully auditable paper-based vote system that would empower people with disabilities to vote independently on verifiable paper ballots. As it grew, Dominion developed technology to solve many of the technical and voter intent issues that came to light as a result of the 2000 Presidential Election. Its systems are certified under standards promulgated by the U.S. Election Assistance Commission (“EAC”), reviewed and tested by independent testing laboratories accredited by the EAC, and were designed to be auditable and include a paper ballot backup to verify results.1 Since its founding, Dominion has been chosen by thousands of election officials throughout the United States to provide the technology to effectively administer transparent and fully auditable elections

I couldn't find Powell's exact statements, but they seem to be some convoluted link between Dominion and a different voting system manufacturer. Unfortunately this particular claim is very difficult to prove defamation on; Dominion's a public figure, so as long as Powell presented some sort of flimsy evidence, she can claim that her opinion was based on it. It would require a finding of "actual malice", that she absolutely knew the evidence was wrong, in order to claim defamation, and as you can imagine, that's a very high bar.

What's more likely to hurt her is number 4, where Dominion claims she used a forged document as evidence. If they can somehow prove that she was aware the document was a forgery, then they seem to have a reasonable chance of success there. Fortunately, in a motion to dismiss, the judge looks at all evidence as favorable to the plaintiff, so perhaps a few of their claims will survive. We'll see, and IANAL, but even if I was, this isn't legal advice :)

[chrisco255]

You're rooting for the multi-billion dollar corporation overseer of 40% of U.S. elections? Does your lust for the death of democracy have no bounds?

> Since its founding, Dominion has been chosen by thousands of election officials throughout the United States to provide the technology to effectively administer transparent and fully auditable elections

As if the choice itself lends credence to the security of the system. SolarWinds was used by virtually all branches of the government and it was hacked, substantially so. You want to make the claim that Dominion Systems are unhackable?

Dominion does have links with other voting manufacturers. They purchased Diebold Systems and Sequoia and integrated their technology and assets into their company. That whole industry is a revolving door of politicians, lobbyists, and yes, even Chavez and Maduro backed Venezuelans.

Even Huffington Post covered this as recently as 2010: "EXCLUSIVE: On Heels of Diebold/Premier Purchase, Canadian eVoting Firm Dominion Also Acquires Sequoia, Lies About Chavez Ties in Announcement" https://www.huffpost.com/entry/exclusive-on-heels-of-die_b_6...

[Nursie]

> DVS systems were proven to be highly erroneous in Antirim County, Michigan

That report is trash, known to be inaccurate at the time it was published and was put together by someone who has made a series of (highly partisan) incorrect claims. It appears to have been made public by the courts purely to stop accusations of a coverup, not as any sort of endorsement. A fact-checking site has an analysis here -

https://www.politifact.com/factchecks/2020/dec/16/donald-tru...

tl;dr there was a lot of human error in that county, but no evidence that any large scale vote-switching happened, or that the machines miscounted.

> DVS deserves every bit of criticism levied by Powell and more.

Do they deserve the "criticism" that they were colluding with foreign powers and committing fraud, for which she had evidence? None of which has been forthcoming?

[dr-smooth]

Wow -- what a credible source you've quoted. It's the rantings of a madman.