Dominion and Smartmatic have serious shot at victory in election disinformation suits, experts say


A voter is seen at a voting machine at the Metropolitan Library polling place on Election Day in Atlanta, Ga., on Tuesday, November 3, 2020.

Tom Williams | CQ-Roll Call, Inc. | Getty Images

Dominion Voting Systems and Smartmatic USA have a good shot at winning their billion-dollar defamation suits against a host of conservative personalities and, in the case of Smartmatic, Fox News, but they still have a lot to prove in court, experts say.

Each of the two election technology firms has sued several boosters of former President Donald Trump, saying that they worked to spread conspiracy theories about each company’s products in order to cast doubt on President Joe Biden’s electoral victory.

Dominion launched its first salvo last month, suing Trump’s personal attorney Rudy Giuliani and Sidney Powell, a conspiracy theorist and former lawyer for Trump’s campaign, in separate $1.3 billion suits brought in Washington, D.C., federal court. The company hit MyPillow CEO Mike Lindell on Monday with its latest suit, also calling for damages of $1.3 billion. Dominion CEO John Poulos warned the next day on CNBC that the Lindell suit is “definitely not the last.”

Smartmatic has brought one case so far, in New York state court. The company sued Giuliani and Powell in addition to Fox News and its hosts Lou Dobbs, Maria Bartiromo and Jeanine Pirro. Smartmatic has asked for a minimum of $2.7 billion from the defendants in that case.

Dominion’s suits are before District Judge Carl Nichols, a Trump appointee. Smartmatic’s suit is before Judge David Cohen, a Democrat who was elected in November.

While the sums are staggering, lawyers who have worked on defamation cases in the past say the companies have made a pretty good showing so far.

“I think these are cases asserting traditional libel claims, claims for defamation, applying pretty settled law in this country,” said David Schulz, a defamation scholar at Yale Law School. But, Schulz added, “It’s not like these are going to be slam-dunk cases at all.”

Too early to tell

Experts said it’s too early to tell how much money the companies actually stand to win. Companies can ask for any amount of money they want, but those figures often change as judges and juries weigh the facts.

Robert Rabin, a Stanford Law School professor, noted that the figures being requested were “awfully large” but added that at this stage it is “really hard to say anything very concrete.”

To win a defamation case, a plaintiff typically needs to show that the defendant made a false statement of fact that caused harm to the defendant. If the plaintiff is a public figure, they also have to show that the defendant acted with “actual malice” — essentially meaning that the speaker knew or should have known that what they said wasn’t true.

Dominion and Smartmatic would need to meet a lower bar if they are considered private figures. But Fox has asserted that Smartmatic is a public figure, and legal experts said that judges would likely agree.

Among the false statements that Dominion and Smartmatic are suing over are claims made by Giuliani and Powell, on Fox News shows and elsewhere, that Dominion is owned by Smartmatic and was created at the direction of the deceased Venezuelan dictator Hugo Chavez to fix elections, including the 2020 contest between Trump and Biden. Lindell also falsely claimed that Dominion machines were used to steal millions of votes for Biden.

Schulz said the lawsuits are “one of the few avenues we have at the moment to rein in misinformation.”

“If we can send people to jail for misrepresenting the financial condition of a corporation but there is no recourse for spreading lies in a presidential campaign to try to sway people’s votes, then we have a big problem,” he said.

Actual malice

The lawsuits against Giuliani and Powell are likely to be more straightforward than the case against Fox News and its hosts, according to Harvard Law School professor John Goldberg, an expert on defamation.

“I think with respect to Giuliani and Powell, there is pretty good evidence that will allow a jury to find actual malice by those defendants,” Goldberg said. “For example, Dominion has pointed out in its complaint that Giuliani, in his public statements out of court, was routinely talking about fraud, but every time he was in court and was under oath, so to speak, he said, ‘No, we are not alleging fraud, Your Honor.'”

“They have a shot against Fox News and the Fox personalities, but it’s a little harder,” Goldberg said.

In its lawsuit, Smartmatic claims that Fox News and its hosts knew that claims made by Powell and Giuliani on its air about Smartmatic’s systems being used to flip votes to Biden were false. The company argues that comments made by other Fox News journalists, such as Eric Shawn and Tucker Carlson, made it clear that Fox didn’t have any evidence to support Powell’s and Giuliani’s claims.

For instance, in November, Carlson said that Powell “never sent us any evidence, despite a lot of polite requests. When we kept pressing, she got angry and told us to stop contacting her.”

Smartmatic wrote that if Fox News or its hosts had any evidence backing Powell’s claims, Carlson would not have been allowed to say what he did.

While the defendants in the Dominion lawsuits haven’t issued their formal responses yet, Fox News and its hosts have already asked the judge in the Smartmatic case to drop the suit. Paul Clement, Fox’s attorney and a former solicitor general under President George W. Bush, wrote in a motion that the news company was simply doing its job, covering claims by the then-president and his backers that were “objectively newsworthy.”

Clement wrote that the suit “strikes at the heart of the news media’s First Amendment mission to inform on matters of public concern.”

While that argument may hold sway among some jurors, Rabin noted that there is no such thing as an “absolute newsworthiness defense.”

There is also, he said, no “defense of republication.”

“In other words, anyone who published a defamatory statement without qualification is also subject to a defamation claim,” Rabin said.

Uphill battle for billions

If Dominion and Smartmatic do win their cases, it could still be an uphill battle for them to receive the billions they say they are owed.

If the companies prove that the defendants’ statements were defamatory, they are entitled to the amount of money they can prove they lost as a result of the claims — such as lost elections contracts. They may also be entitled to punitive damages, or money meant to dissuade the defendants from spreading lies in the future.

Each company has asked for punitive damages in addition to compensatory damages, or money to repay them for harm they suffered. In Dominion’s case, it has split those damages down the middle, saying it is owed about $651.7 million for each kind of damage. Smartmatic has not specified the amount of punitive damages it wants, but says that it is owed $2.7 billion in compensatory damages.

While Dominion and Smartmatic can support their claim to compensatory damages with evidence that they’ve lost business as a result of the false statements they are suing over, punitive damages are far more discretionary and can turn on factors such as how wealthy a defendant is.

Schulz, the Yale professor, said that getting punitive damages could be tricky for the voting machine companies, because it requires showing not just actual malice but also an intent to hurt the company. It’s plausible that the statements involved were more directed at hurting Biden or the Democratic Party, Schulz said.

Some states also cap the amount of punitive or compensatory damages that can be awarded in a civil suit, though neither New York nor the District of Columbia, where the cases to date have been filed, have such limits. The Supreme Court has said that punitive damages must generally be less than 10 times the amount of compensatory damages, and even smaller ratios can face heavy scrutiny.

Dominion chief Poulos acknowledged Tuesday on CNBC that the $1.3 billion his company is asking for is subject to change.

“It’s difficult to put a hard number to it, but the reputational damage alone has been devastating to us,” Poulos said.

Poulos also said that his company was mindful of the First Amendment.

First Amendment rights

“There is no secret endgame to limit anyone’s First Amendment right to free speech. We strongly believe in that, and frankly we intend to rely on free speech to get the truth out,” Poulos told CNBC. “Our intention is to get the facts on the table, so the American voters can understand exactly what happened during their election and how false these allegations were and how absolute nonsense they were.”

Giuliani has said that the demand for more than $1 billion is an intimidation tactic.

“The amount being asked for is, quite obviously, intended to frighten people of faint heart,” Giuliani said in a statement. “It is another act of intimidation by the hate-filled left-wing to wipe out and censor the exercise of free speech, as well as the ability of lawyers to defend their clients vigorously.”

Giuliani, Powell and Lindell have all signaled that they are happy that the suits were brought against them.

“My message to Dominion is thank you for finally getting this done, because it’ll be back in the limelight now,” Lindell told CNBC after he was sued.

Lindell also denied Dominion’s claims that he financially benefited from the statements that he made about them.

Powell’s attorney, conservative provocateur L. Lin Wood, has said, “Get ready to rumble, Dominion.”

“You made a mistake suing Sidney. You are going to pay a heavy price,” Wood said, according to Forbes.

Clarification: This article was updated to clarify that only Smartmatic, not Dominion, has sued Fox News.

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