Election Litigation Status

[Doctor CamNC4Me]

It's not being misrepresented. Dominion just needs to prove that the statements were false and that Ms. Powell knew they were false. She literally admitted it in the filing by stating that no reasonable person would've believed her. The little addendum of 'istillbelievethisshitanyway' simply isn't going to fly.

- Doc

[honorentheos]

It's not being misrepresented. Dominion just needs to prove that the statements were false and that Ms. Powell knew they were false. She literally admitted it in the filing by stating that no reasonable person would've believed her. The little addendum of 'istillbelievethisshitanyway' simply isn't going to fly.

- Doc

Here's a typical representation from Axios:

Powell argues in her motion that "no reasonable person" would conclude that her accusations of Dominion's election-rigging scheme "were truly statements of fact."

What it actually says:

Reasonable people understand that the “language of the political arena, like the language used in labor disputes … is often vituperative, abusive and inexact.” Watts v. United States, 394 U.S. 705, 708 (1969). It is likewise a “well recognized principle that political statements are inherently prone to exaggeration and hyperbole.” Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 244 F.3d 1007, 1009 (9th Cir. 2001). Given the highly charged and political context of the statements, it is clear that Powell was describing the facts on which she based the lawsuits she filed in support of President Trump. Indeed, Plaintiffs themselves characterize the statements at issue as “wild accusations” and “outlandish claims.” Id. at ¶¶ 2, 60, 97, 111. They are repeatedly labelled “inherently improbable” and even “impossible.” Id. at ¶¶ 110, 111, 114, 116 and 185. Such characterizations of the allegedly defamatory statements further support Defendants’ position that reasonable people would not accept such statements as fact but view them only as claims that await testing by the courts through the adversary process.

...

In short, the speech at issue here is not actionable. As political speech, it lies at the core of First Amendment protection; such speech must be “uninhibited, robust, and wide-open.” N.Y. Times Co., 376 U.S. at 270. Additionally, in light of all the circumstances surrounding the statements, their context, and the availability of the facts on which the statements were based, it was clear to reasonable persons that Powell’s claims were her opinions and legal theories on a matter of utmost public concern. Those members of the public who were interested in the controversy were free to, and did, review that evidence and reached their own conclusions—or awaited resolution of the matter by the courts before making up their minds. Under these circumstances, the statements are not actionable. Keohane, 882P.2d at 1299; NBC Subsidiary, 879 P.2d at 11, 12; Milkovich, 497 U.S. at 20.

[honorentheos]

It's not being misrepresented. Dominion just needs to prove that the statements were false and that Ms. Powell knew they were false. She literally admitted it in the filing by stating that no reasonable person would've believed her. The little addendum of 'istillbelievethisshitanyway' simply isn't going to fly.

- Doc

Here's a typical representation from Axios:

Powell argues in her motion that "no reasonable person" would conclude that her accusations of Dominion's election-rigging scheme "were truly statements of fact."

What it actually says:

Reasonable people understand that the “language of the political arena, like the language used in labor disputes … is often vituperative, abusive and inexact.” Watts v. United States, 394 U.S. 705, 708 (1969). It is likewise a “well recognized principle that political statements are inherently prone to exaggeration and hyperbole.” Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 244 F.3d 1007, 1009 (9th Cir. 2001). Given the highly charged and political context of the statements, it is clear that Powell was describing the facts on which she based the lawsuits she filed in support of President Trump. Indeed, Plaintiffs themselves characterize the statements at issue as “wild accusations” and “outlandish claims.” Id. at ¶¶ 2, 60, 97, 111. They are repeatedly labelled “inherently improbable” and even “impossible.” Id. at ¶¶ 110, 111, 114, 116 and 185. Such characterizations of the allegedly defamatory statements further support Defendants’ position that reasonable people would not accept such statements as fact but view them only as claims that await testing by the courts through the adversary process.

...

In short, the speech at issue here is not actionable. As political speech, it lies at the core of First Amendment protection; such speech must be “uninhibited, robust, and wide-open.” N.Y. Times Co., 376 U.S. at 270. Additionally, in light of all the circumstances surrounding the statements, their context, and the availability of the facts on which the statements were based, it was clear to reasonable persons that Powell’s claims were her opinions and legal theories on a matter of utmost public concern. Those members of the public who were interested in the controversy were free to, and did, review that evidence and reached their own conclusions—or awaited resolution of the matter by the courts before making up their minds. Under these circumstances, the statements are not actionable. Keohane, 882P.2d at 1299; NBC Subsidiary, 879 P.2d at 11, 12; Milkovich, 497 U.S. at 20.

The headlines and the discussion aren't actually engaging the language or claims of the filing. It's ironic in a way, but only in that it's partisan rhetoric itself driving a parallel narrative where facts take a backseat to evidence.

[Doctor CamNC4Me]

And that's about as good of a defense as you can expect. She created elaborate lawsuits from the clear and demonstrable lies of unreliable witnesses, and invented a vast conspiracy to rig voting machines. It won't be difficult to demonstrate that the person who would know best that her statements were fallacious was her because none of her krakens had any tentacles, as it were. You can lie your ass off, and then try to claim you believed your own lies, but this is a civil suit - and Sydney Powell is going to find out that the bar to determine culpability is lower for Dominion than it was for her.

- Doc

[honorentheos]

On the one hand I agree it is the best argument they have left. They are clearly arguing the law since they can't argue the facts. And more importantly, I think their own conclusion essentially agrees that since the courts almost unanimously failed to support the claims of fraud it has clear implications for the validity of the claims.

But all that said there's at least some validity to the arguments it makes that might leave people feeling disappointed when it concludes.

Most legitimately dangerous, in my opinion, is the potential the argument actually creates for agreeing that partisan speech that plays fast and loose with the facts could be protected as political speech even at the highest most public levels. It's one thing for a dunce on the internet to engage in partisan hyperbole (or maybe not these days...) but were that to be established as a valid defensive argument we would truly be in a post-truth world.

[Doctor CamNC4Me]

For sure. If she successfully argues that knowingly deceiving people because you believed in the bigger picture and that it's up to the courts to disprove your lies, defamation, and slander and that is somehow protected speech, that no one is accountable for the things the say, then we're in a real pickle as a Republic.

- Doc

[honorentheos]

LegalEagle does a good job explaining this:

https://youtu.be/iETwWNociM8

If you don't want to watch the whole thing he basically reiterates that the filing doesn't say she knows she was lying but it does make for a bad argument poorly made.

[Doctor CamNC4Me]

Hot off the presses - CNN is reporting Dominion is suing Fox for $1.6B for obvious reasons.

- Doc

[Chap]

Hot off the presses - CNN is reporting Dominion is suing Fox for $1.6B for obvious reasons.

- Doc

Can a TV news channel successfully plead the 'no reasonable person would have taken what we said as factual statements' defence?

Not so much, I'd say ...

[Res Ipsa]

Hot off the presses - CNN is reporting Dominion is suing Fox for $1.6B for obvious reasons.

- Doc

Can a TV news channel successfully plead the 'no reasonable person would have taken what we said as factual statements' defence?

Not so much, I'd say ...

It depends on what the news people at Fox reported, as opposed to Tucker and other commentators.

for what it's worth, I don’t buy Powell’s political speech argument. What she said publicly was not in the category of speech in which reasonable people should expect some exaggeration. This was an accusation of a mammoth crime supported with very specific claims of evidence. That it involved the way we count votes doesn’t make the speech political.