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Dominion's MyPillow and Smartmatic's Fox News election suits put 'disinformation' on trial

Depending on how these claims play out, they could have significant consequences for the media and political discourse.
Image: President Donald Trump listens as Michael J. Lindell, CEO of MyPillow Inc., speaks during the daily briefing on the novel coronavirus, Covid-19, in the Rose Garden of the White House on March 30, 2020.
President Donald Trump listens as Mike Lindell, CEO of MyPillow Inc., speaks during the daily briefing on the coronavirus in the Rose Garden of the White House on March 30.Mandel Ngan / AFP - Getty Images file

The voting technology companies Dominion and Smartmatic have both brought libel actions against former President Donald Trump's allies and attorneys, along with Fox News, for spreading harmful untruths and conspiracy theories about the companies' roles in the 2020 election. Most recently, Dominion announced Monday that it's suing Mike Lindell, CEO of MyPillow, for $1.3 billion over his baseless accusations of election fraud.

In recent years, libel law has been weaponized to generate publicity, to score political points and to exact revenge on critics.

It seems as if disinformation is being put on trial. Smartmatic's complaint declares that "[f]acts matter" and that "[t]ruth matters," and one of Dominion's complaints says the company wants "to stand up for itself ... and the electoral process."

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In recent years, libel law has been weaponized to generate publicity, to score political points and to exact revenge on critics. Consider Rep. Devin Nunes, R-Calif., who sued all manner of commentators and media organizations, including CNN for $435 million and Esquire for $75 million, in response to their observations and stories about him. Or Joe Arpaio, the former Arizona sheriff, who sued The New York Times for nearly $150 million over an opinion piece calling him, among other things, "a sadist masquerading as a public servant." Or Roy Moore, of Alabama infamy, who is suing Showtime and Sacha Baron Cohen for $95 million after Moore's appearance on "Who Is America?" in which he's subjected to a fictitious pedophile-detection wand.

These actions either have been dismissed or are highly unlikely to succeed on the merits as they go forward. In general, they have the look of politically motivated or performative litigation, and they involve speech that clearly receives First Amendment or other protections. In contrast, the Dominion and Smartmatic claims are more serious and meritorious. They involve provably false statements of fact, some of which were made after the defendants were notified of their falsity. And depending on how they play out, they could have significant consequences for the media and political discourse.

Smartmatic is suing a number of parties — Trump lawyers Rudy Giuliani and Sidney Powell, as well as Fox News and hosts Maria Bartiromo, Lou Dobbs and Jeanine Pirro — and asking for $2.7 billion in damages. Smartmatic alleges that they engaged in a disinformation campaign that significantly harmed its reputation and business interests. A sample of the false statements and implications listed in the complaint: that Smartmatic's technology was widely used in the 2020 election, that Smartmatic is a Venezuelan firm founded by corrupt dictators and that Smartmatic's technology was designed to rig elections.

(Fox News denies the allegations and has filed multiple motions to dismiss them, releasing a statement saying it was "proud of our 2020 election coverage and will vigorously defend this meritless lawsuit in court." In a statement to CNN, Giulini said: "The Smartmatic lawsuit presents another golden opportunity for discovery. I look forward to litigating with them.")

Meanwhile, Dominion is suing Lindell, Giuliani and Powell — and asking for more than $1 billion in each case. (In response, Lindell told NBC News: “I am so happy today that they finally sued me... It gives me a voice.")

I'll focus on the Giuliani and Powell claims, because I've had more time to digest them. In its complaint against Giuliani, Dominion alleges that he enriched himself by making false statements like this one: that the company uses software employed "to steal elections in other countries." And in its complaint against Powell, Dominion alleges that she falsely stated that the company was founded in Venezuela to rig elections for Hugo Chávez and that Dominion bribed Georgia officials for a no-bid contract.

These are all false statements and obviously harmful to the companies. But there's more to consider. The courts have developed numerous libel principles to balance the societal and personal interests of reputation and speech, and what has emerged is a complex area of law in which it is generally difficult for a plaintiff to prevail, particularly a public official or figure. So let's unpack the key issues, keeping in mind that some defendants may have more success than others in making their own cases.

First, the fault standard. Public officials and figures have the heavy burden of showing that the defamation was published with knowledge that it was false or in reckless disregard of its falsity. It's possible that Dominion and Smartmatic would be deemed public figures, most likely if a court concluded that they were distinguished and prominent in their field before the defendants began attacking them. In that case, they would surely try to show reckless disregard, because it's the lower bar of the two. It requires proof that the statements at issue were published with a "high degree of awareness of their probable falsity." This usually takes into account such factors as whether the sources were reliable, whether the defendant ignored clear signs that the statements were wrong, whether the defendant investigated the facts and what motives shaped the statements. Recklessness is commonly a combination of these factors, and although it's never easy to prove, it's entirely plausible that Dominion and Smartmatic could prove it, based on the complaints.

If Dominion and Smartmatic aren't deemed public figures, they would have to prove negligence: the failure to act as a reasonable party would in similar circumstances. So, in a libel case, the question is whether the defendant exercised reasonable care in determining the truthfulness of the statements at issue. No court has produced a definitive list of negligent practices, but failing to verify questionable claims would qualify, and so would relying on substantially bad sources. Negligence would be easier for Dominion and Smartmatic to prove.

Second, opinion protections. The Supreme Court has recognized a high level of protection for statements of opinion. The court once noted that "there is no such thing as a false idea," adding, "However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." But this protection isn't unlimited, and it hasn't created, as the Supreme Court later put it, a "wholesale defamation exemption for anything that might be labeled opinion." Of course, distinguishing statements of opinion from those of fact isn't always easy, and context is critical.

Traditionally, courts have done so with the presumption that facts can be proven true or false, while opinions are matters of belief or ideas. And to determine what meaning a statement should be given, courts call on context and review the totality of the circumstances around the statement. In the Dominion and Smartmatic cases, many of the statements at issue are provably true or false or they imply unstated facts, either of which can be actionable as libel. Moreover, for any opinions based on stated facts, the facts must be presented accurately and be open to plausible interpretation. Otherwise, as the Supreme Court observed, "Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact." This is likely to be a problem for most defendants.

The Dominion and Smartmatic cases arrive against that background and at a time of growing concern about the role of disinformation in American politics.

Third, neutral reportage and New York's anti-SLAPP law. This is relevant to the Smartmatic case. News organizations are generally liable for republishing defamatory statements made by others. Fox argues that it should have latitude to provide a forum for guests to discuss controversial issues in public life, and the network is invoking the neutral-reportage privilege. It can protect a news outlet from republication liability in narrow circumstances. The problem for Fox is that the privilege has been widely rejected, and historically it hasn't applied in New York state court, where the Smartmatic case is pending.

Fox is also invoking New York's anti-SLAPP law, designed to deter strategic lawsuits against public participation. They come in various forms, including libel actions, and plaintiffs normally don't file them to win on the merits. Often, plaintiffs aren't trying to remedy an actual harm; instead they're trying to retaliate or send a message, at whatever cost and whether or not they win. Anti-SLAPP laws allow for early dismissal of such actions, to avert the high financial and emotional costs of litigation. New York's anti-SLAPP law has been on the books for 30 years, and it was amended in the fall to expand its protections — so this could be a foundational test of the law's application to political speech in the context of news and commentary.

All of which is to say the First Amendment is expansive in its coverage, and it is rooted in the values that ideas should compete with one another for acceptance and that "public discussion is a political duty," as the Supreme Court put it, and "a fundamental principle of the American government." Free speech, in other words, contributes to democratic self-governance. These are among the reasons that political expression receives a great degree of First Amendment protection.

The Dominion and Smartmatic cases arrive against that background and at a time of growing concern about the role of disinformation in American politics. And they could be consequential. As Harvard's John Goldberg put it: "If ... some of the defendants are able to resolve these suits with a relatively modest settlement payment and no admission of guilt, then the message might be to other speakers and broadcasters 'Don't worry too much about defamation law.'" But, he continues, it may be that these suits are reminders that "there are some legal lines that cannot be crossed."

The Dominion and Smartmatic claims aren't slam dunks (few are), but they're more meritorious than other recent high-profile libel actions. And as we've seen so far, with Lou Dobbs no longer on the air and with canned disclaimers and clarifications making frequent and self-parodic appearances in conservative media, the claims may be having a positive impact already.