Groups seeking to protect US democracy from a renewed threat of subversion in the presidential race next year wield a new weapon against Donald Trump and his accomplices: the little-used law of defamation.
Trump’s former lawyer Rudy Giuliani, the My Pillow CEO, Mike Lindell, and conspiracy theorist Dinesh D’Souza are among the individuals named in a spate of high-profile defamation cases targeting those who tried to overturn the 2020 election. Prominent rightwing media outlets such as Fox News and Gateway Pundit are also on the hook.
Already the legal pain is mounting. Giuliani has been found liable for defaming two election workers in Georgia whom he falsely accused of criminally miscounting votes in 2020 in favour of Joe Biden.
The case will go to trial in December with Giuliani facing possibly swingeing punitive damages.
Lindell has notched up millions in legal fees in the $2bn defamation suits that have been brought against him by the voting machine firms Dominion and Smartmatic for falsely saying they rigged the count. His ongoing libel woes follow the April settlement in which Fox agreed to pay Dominion a shattering $788m for broadcasting similar lies.
“This is lawfare,” Lindell protested in an interview with the Guardian. “Lawfare hasn’t been used in our country since the late 1700s, and that’s what they are doing.”
The lawsuits are designed in part as a strategy of deterrence. Those pressing the libel suits hope that anyone contemplating a renewed assault on next year’s presidential election, in which Trump is once again likely to be the Republican candidate, will look at the potentially devastating costs and think twice.
“We aim to demonstrate that there is no immunity for spreading intentional and reckless lies,” said Rachel Goodman, a lawyer with the non-partisan advocacy group Protect Democracy. “Ensuring accountability for intentional defamation is a crucial part of deterring election subversion from happening again in 2024.”
Protect Democracy currently has five defamation suits on the go against individuals and outlets who propagated election denial. The defendants include Giuliani, the Gateway Pundit and the beleaguered undercover video outfit Project Veritas.
D’Souza is being sued over his widely derided and debunked movie 2000 Mules. In it he depicted a Black voter in Georgia, Mark Andrews, as a “mule” who illegally deposited ballots in a drop box when in fact he legally delivered the votes of his own family.
The fifth case concerns Kari Lake, the Arizona Republican who refused to accept her defeat in that state’s gubernatorial contest last year. The plaintiff is the top election official in Maricopa county, Stephen Richer, whom she falsely accused of injecting 300,000 phoney ballots into the count to swing the race against her.
Defamation law has traditionally been sparingly used in the US, given the very high bar that plaintiffs have to meet. Under the 1964 supreme court ruling New York Times Co v Sullivan, they have to be able to show “actual malice” on behalf of the accused.
“When lawsuits are brought against public figures they can only prevail if they can show that the speaker knew that the statements were false, or very likely false, and made recklessly without further investigation or caring for the truth,” said Eugene Volokh, a law professor at UCLA.
The first Protect Democracy suit to reach trial will be that against Giuliani. A jury will convene in a federal court in Washington DC on 11 December to decide the scale of damages he will have to pay.
Giuliani waged a “sustained smear campaign” against two Georgia poll workers in the 2020 count of absentee ballots, Protect Democracy alleged. The mother and daughter duo, Ruby Freeman and Shaye Moss, became the targets of a conspiracy theory in which they were said to have packed bogus ballots into “suitcases” which they then surreptitiously counted five times, transferring victory to Biden.
Giuliani called their actions “the crime of the century”, and labeled them “crooks”.
Georgia election officials and police investigators categorically disproved the falsehoods within 24 hours of Giuliani airing them. The suitcases turned out to be ballot storage boxes and the counting process was entirely normal, yet he continued to repeat the lies for months.
Freeman and Moss faced a prolonged harassment campaign, including death threats from Trump supporters. At its peak, Freeman was compelled to flee her own home and to shutter her online business.
In July, in an attempt to avoid disclosing evidence to the plaintiffs, Giuliani admitted that he had made defamatory statements and caused the pair emotional distress. The following month a federal judge ruled he was liable for defamation – leaving the jury to decide only the scale of damages.
Goodman said the case summed up why Protect Democracy was bringing defamation suits against election denialists. “Ruby Freeman and Shaye Moss were Americans doing their civic duty, and they were put in the crosshairs of this election subversion machine – we should not stand for that.”
Most defendants have tried to shield themselves behind the first amendment right to free speech. In Arizona, Kari Lake has attacked the lawsuit against her as an attempt to “punish or silence” her “core free speech about the integrity of the 2022 election”.
In his Guardian interview, Lindell said: “I have a first amendment right. These defamation cases are damaging free speech – people are afraid to speak out, to come forward with anything.”
Protect Democracy countered that the first amendment does not provide blanket protection for mendacity. “It does not protect those who knowingly spread lies that destroy reputations and lives,” Goodman said.
Nina Jankowicz, an expert on disinformation, also rejects the idea that the first amendment shields reckless falsehoods. She is suing Fox News for what she claims were the “vitriolic lies” the channel spread about her in 2022 in her role as head of a newly created federal unit combatting misinformation.
Jankowicz resigned from the Disinformation Governance Board, which was also disbanded, barely three weeks into the job. Her defamation complaint quotes the former Fox News star Tucker Carlson calling her a “moron” on air and labelling her unit “the new Soviet America”.
Jankowicz said she took the decision to sue because she could see no other route to correct the public record. If there was a free speech component, she said, it was that her rights had been violated, not those of Fox News.
“Their intention was to silence me, just as the defamation of election workers in Georgia was designed to silence them. That’s pretty un-American.”
Fox has moved to have Jankowicz’s case dismissed, arguing that she has failed to meet the actual malice standard. A ruling is expected soon.
The billion-dollar question is: can it work? Can the strategy of deploying defamation as a deterrent force denialists to think twice before they embark on renewed election subversion in 2024?
Jankowicz, despite pressing ahead with her own libel suit, remains skeptical. “I haven’t seen any change in how these rumors and outright lies are being spread yet, and I do worry for 2024,” she said.
She added that change would only come “when we see more big settlements, or juries siding with plaintiffs”.
Parties accused of peddling anti-democratic lies certainly remain vociferous. The Gateway Pundit, the far-right website which Protect Democracy is suing for having published the same falsehoods as Giuliani about the Georgia poll workers, has used the lawsuit as a fundraising tool.
Lindell said that he would never be silenced, and continued to insist that his statements about Dominion’s rigging of the 2020 election were “truths”. “I will continue to tell the truth, nothing’s going to stop me from speaking out. I’m not scared,” he said.
There are though tentative signs of a shift in behavior. The far-right channel One America News backtracked on its lies about the Georgia poll workers last year after having settled its defamation suit with Freeman and Moss. Since then the outlet has been dropped by several major cable providers.
In the wake of the huge defamation settlement between Fox and Dominion, Dinesh D’Souza and Trump himself complained that Fox News refused to give air time to 2000 Mules.
Goodman is optimistic that defamation suits can help shore up the US’s shaken democratic norms. “This is about accountability as a way of ensuring that our democracy can get back on track,” she said.
Source: Elections - theguardian.com
