26th January 2021
You would need a heart of stone not to laugh like a drain at the lawsuit brought by Dominion Voting Systems against Rudolph Giuilani.
Here's the defamation lawsuit that Dominion Voting Systems filed this morning against Rudy Giuliani: https://t.co/Wx4UQbK4xf
— Zoe Tillman (@ZoeTillman) January 25, 2021
"…Giuliani launched a viral disinformation campaign about Dominion that reached millions of people and caused enormous harm to Dominion" pic.twitter.com/xRGbSjXhOu
The pleading is worth reading for its own sake, and the first paragraph – which, as this post will show, rewards re-reading – is a cracker.
But once one eventually stops laughing, what should one make of it?
Of course, the defendant Rudolph Giuilani is now regarded by many as a figure of political fun, a villain in the Trump pantomime.
But principle is – or should be – blind to the person to whom it applies.
So here is a thought experiment.
Imagine – for the sake of argument and exposition – that there was a corporation that provided voting machines and, unlike the plaintiff in this case, there was a serious and consequential issue as to the efficacy of the equipment.
And imagine that the political or media figure bringing loud attention to this issue was not the defendant in this situation but instead a credible and likeable politician or journalist.
Would you still clap and cheer if that noble figure was faced with a 107-page legal claim for $651,735,000 or some other absurdly precise amount?
Or would you re-tweet furiously about threats by corporates to whistleblowing and freedom of expression?
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So how can the court tell the good cases from the bad?
How can the court strike the right balance?
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This thread from American lawyer Mike Dunford sets out the legal challenges for Dominion Voting Systems:
Happy Monday! Dominion Voting Systems is suing Rudy Giuliani for $1.3 billion.
— Mike Dunford (@questauthority) January 25, 2021
As Akiva notes, the legal question is going to boil down to something known as "actual malice."
That's a tricky concept for nonlawyers (and often for lawyers) so an explainer might help. https://t.co/cT0pkFuPLp
And as would be the position with a similar case in England and Wales, you will see that the legal issue quickly becomes one of showing malice – and there it is called ‘actual malice’:
To prove "actual malice" in a defamation case, you need to show either that the defendant knowingly lied or that the defendant made the statements with "reckless disregard" of the truth. And "reckless disregard" is *also* a term of art here.
— Mike Dunford (@questauthority) January 25, 2021
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At this point the non-lawyer will ask, understandably: what is malice?
And a lawyer will respond, frustratingly: it all depends.
But here it is interesting to now go back to the first paragraph of the the legal pleading of Dominion Voting System (and this is why it is worth re-reading):
“During a court hearing contesting the results of the 2020 election in Pennsylvania, Rudy Giuliani admitted that the Trump Campaign “doesn’t plead fraud” and that “this is not a fraud case.” Although he was unwilling to make false election fraud claims about Dominion and its voting machines in a court of law because he knew those allegations are false, he and his allies manufactured and disseminated the “Big Lie,” which foreseeably went viral and deceived millions of people into believing that Dominion had stolen their votes and fixed the election. Giuliani reportedly demanded $20,000 per day for that Big Lie. But he also cashed in by hosting a podcast where he exploited election falsehoods to market gold coins, supplements, cigars, and protection from “cyberthieves.” Even after the United States Capitol had been stormed by rioters who had been deceived by Giuliani and his allies, Giuliani shirked responsibility for the consequences of his words and repeated the Big Lie again.”
This is not just racy narrative – if you look carefully you will see that it is a clever attempt to show malice.
Giuliani said a thing he knew he could not say in court; he knew it would go viral; he had a financial incentive; and he was irresponsible in respect of its consequences.
Every sentence – every clause – of that well-crafted first paragraph is serving a purpose in showing that there was ‘actual malice’.
It is a lovely piece of legal drafting – enough to make one want to clap and cheer, regardless of the identity of the defendant.
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Corporations – especially those providing public services or supplying equipment for use in public services – should not have it easy when it comes to making legal threats.
Even when they are threatening pantomime villains.
Public figures, especially those in the worlds of politics and media, should have some protection when they are complaining of such corporations.
Even when those figures are pantomime villains.
The purpose of the law in these situations is to strike a balance – to provide for what both sides would need to show in court.
Here the corporation – rightly – cannot just sue because of damaging false statements, it may also need to show that there was malice.
And the lesson of the first paragraph of the pleading and of the rest of the complaint is that in certain circumstances this can be shown, at least arguably.
What comes of this case cannot be guessed at this time – and most civil claims tend to settle.
But Giuliani has a genuine legal fight on his hands here.
And you would need a heart of stone not to laugh like a drain.
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So actual malice requires both that your statement was false and that you knew at the time you made it that it was false (?)
Whatever that thread says
The thought experiment is interesting. Imagine it was a regular journalist and not the odious Giuliani.
However it isn’t a regular journalist, producing an erroneous but arguably sincerely meant piece of work. It was someone who manifestly and overtly was working for the POTUS.
I am afraid I am indeed laughing at him.
Your uncaptioned photo of Rudi Giuliani and supporters/props is ironically very fitting of how low the once esteemed former Mayor of New York finally went, albeit in error. The Four Seasons Total Landscaping premises located in a downtown area of Philadelphia, rather than in the intended posh hotel! Perhaps, a very fitting location to shovel the BS.
Oh I’m laughing. Sometimes the most incriminating words are not what we say, but what we don’t (or in this case; intimate we ‘don’t’) say.
It *is* good drafting and also nice and smooth to read (although to a UK lawyer it’s what you’d put in your written submissions not your pleadings because as you say it’s racy).
Your bit saying the lawyer will irritatingly reply “it depends” reminds me of attending a Westminster Sceptics meeting back in the mists of time in which you were explaining the Simon Singh case, talking about the libel reform campaign and taking questions. Someone asked you something about the costs position. I said to the person standing next to me, “Huh, quite difficult, it depends,” in almost perfect unison with you standing up at the front saying, “Yes, good question, it depends.” You did go on to explain it but it was possible to *feel* the audience reacting: “is NOTHING straightforward??”
Possibly one of the key factors that makes someone a lawyer is finding that sort of complication interesting rather than tedious?!
Unfortunately, David is correct. As is eminent YouTube lawsplainer Devin “Legal Eagle” Stone. It really does depend.
Two crimes may be committed with the exact same circumstances, but a difference of intent may be the difference between Guilty and Not Guilty. Or between Murder and Manslaughter. Perhaps there are Special Reasons why somebody convicted of a driving offence should not suffer a mandatory disqualification.
This is why getting legal representation is so important, especially if the other side is similarly equipped.
Claiming one thing loudly in public and then arguing for practically everything else in court does seem to imply bad faith at the very least.
I have a feeling that Giuliani and the other folks hit with this – other Trump lawyers, IIRC – are in quite a lot of expensive trouble that they absolutely asked for.
I wonder at the inclusion of the (in)famous Roy Chubby Brown song, a side-note, my ex wife and some of her friends regularly drank in a Middlesbrough pub with the said Roy Chubby Brown before he became (in)famous.
So, my wonder is this, do lawyers go around singing, What the f**k is Malice?
I too am laughing like a drain and I would therefore claim (or plead) not to have a heart of stone – the problem with the said claim or plea is that everybody knows I don’t have a heart!
The ‘who the f*** is..’ was originally a part of a cover by a Dutch band called Gompie. Chubby Brown covered the cover.
One of the first bands to have a hit with Living Next Door to Alice, the real name of the song, was Smokie. It can be found on youtube. I perfer their rendition to Brown’s.
I’m not a lawyer. When you refer to ‘malice’ and ‘actual malice’ as you do above, can I see a correspondence to the ‘mens rea’ and the ‘actus reus’, the ‘guilty mind’ and the ‘guilty act’, in criminal cases?
Thanks for this. The court filing to which DAG links, the 107-page PDF at https://assets.documentcloud.org/documents/20463213/1-25-21-dominion-v-giuliani-complaint.pdf, has an interest even beyond helping to document the Dominion-against-Giuliani case, important though that case is in its own right. The filing includes a detailed chronology of events in the crisis of 2021-01-06, starting from a bit before the actual storming of the Capitol. Students of that crisis might now be taking the filing as a document in the record, finding that (thanks to its careful level of detail) it becomes just as useful as, e.g., the carefully detailed text-and-video reportage of _New Yorker_ writer Luke Mogelson.
I would like to think here that the current crisis will serve to enhance respect for the judicial branch, as a necessary guardian of rationality and logic. Sometimes (or so I like to think) the judicial branch, with its battling attorneys and analytical Bench, can prove more investigative than even the _New Yorker_.
PS: Wonderful ancient _New Yorker_ cartoon, from long before 2021-01-06, and supplying an example of New York wit: A heavily populated courtroom is seen from the rear seats. An attorney near the Bench is gesticulating in his eloquence, perhaps now reaching the climax of his summation. At the rear of the court, in other words in the foreground of the drawing, sits a woman under a hat. The hat is very, very large. It is a hat in the approximate millinery style favoured by Queen Elizabeth, Queen Mother (1900-2002). The woman is saying to her companion, indignantly, “LOGIC….the last refuge of a scoundrel…”
As I have exactly zero familiarity with the DC Circuit’s jurisprudence on this topic, I feel at liberty to type here. First, I think “actual malice” might be reached by demonstrating a tighter relationship (contextual, temporal) between the assertions and the various sale pitches-and possible fee claims. In other words it is easier to get there by demonstrating the allegations were made predominantly for profit. Second, and a bit for the other side, it seems a bit odd-to non-expert me, anyway-that the complaint does not do more to avoid a privilege defense (US term of art loosely construed as speaking in the public interest). Finally, assuming that this action ever gets to discovery, it seems rather unlikely that any judge would permit a fishing expedition in the general direction of the former occupant of the White House, and that plaintiffs prefer it that way. See, e.g., paragraphs 13-16.
Meanwhile a group of lawyers is seeking to have Giuliani disbarred for “*knowingly* propagating a false narrative concerning election fraud” (my emphasis)…
The first paragraph is great. Thanks for the exposition: I read it as racy background, and hadn’t appreciated how carefully it was crafted to set out the elements of the claim. The lawyers at Clare Locke LLP clearly know what they are doing. The legal and linguistic precision and elegance of this claim makes an interesting contrast with the somewhat less precise and elegant legal claims brought to dispute the elections results (including, for example, in this case, clearly setting out the jurisdiction of the DC district court in paragraphs 9 to 12).
I think paragraph 182 of the complaint is the guts of the “actual malice” allegation. (The previous three paragraphs deal with the other necessary elements to bring a defamation claim – that Giuliani is alleged to have made statements reasonably understood to be statements of fact, without privilege, which are false – and then paragraph 183 deals with damage.)
To quote, he is alleged to have made his statements “knowing or recklessly disregarding that they are false, misrepresenting evidence to support his false accusations; purposefully avoiding or intentionally disregarding abundant and publicly available evidence, facts, and reliable sources rebutting and disproving his false claims; espousing inherently improbable accusations; forming and sticking to a false preconceived narrative in spite of the facts; relying on facially unreliable sources; and—when specifically put on notice of the truth and asked to retract—doubling down on and republishing his false accusations, all in furtherance of his plan to financially enrich himself”
I am not a US defamation lawyer, but it seems pretty damning to me that Giuliani failed to retract when given the opportunity and repeated his statements instead. A necessary concomitant of the freedom of speech in the US – the freedom to say what you like without prior restraint – is taking responsibility for what you say, and being judged by others according to what you say. Even so, I expect the courts will be reluctant to intrude into this sort of political back-and-forth.
Mike Dunford’s tweet embedded a thread by Akiva Cohen. That thread gives a detailed explanation why Cohen thinks the claim by Dominion meets the ‘actual malice’ conditions.
https://twitter.com/AkivaMCohen/status/1353727151883825164
Thanks, t
Thanks, that is an interesting thread, and raises a few procedural points.
First, the defendant will probably bring a motion to dismiss the case, so the claim needs to get past that hurdle. As I understand it, it is relatively rare for a defamation case based on actual malice to get past this test in the DC district court, but from what I have seen the US lawyers seem to think, on balance, there is enough substance to pass, although nothing can be guaranteed in litigation.
That gets you to discovery, which means disclosure of documents, and deposition of witnesses. As I understand it, discovery can be an extensive and expensive operation in the US. Who knows what documents might exist, who know what will be said on deposition. Perhaps there is a smoking gun here, and not just for this defamation case.
Third, as Giuliani was Trump’s lawyer, there will be many claims of privilege to block discovery of relevant materials, so the court may be asked to rule whether or not any of the claims of privilege are valid, perhaps because the lawyer was participating in an illegal scheme.
How long might proceedings take to get to trial? A year or more?
Yes, Akiva Cohen seems to go right to the heart of the difficult point in this suit, the demonstration of “actual malice”. (Other aspects of the suit, notably establishing that Mr Giuliani published falsehoods, and that he damaged Dominion, are easy. It is this aspect that is difficult, calling for careful work by the plaintiff. As someone somewhere says, if you sincerely (sincerely, in good faith, in your dimwitted honesty) believe I.B.Scary to be a sentient banana, then your publicly asserting I.B.Scary’s sentient bananahood does not rise to the level of “actual malice”.)
What might make this a bit tricky is that Dominion Voting Systems weren’t the intended target of Giuliani’s malicious lying on behalf of Donald Trump. That was aimed at Joe Biden and the Democratic party. In the American system, it’s essentially impossible for a politician to win a defamation suit, something that Donald Trump exploited with gusto in both the 2016 and 2020 elections campaigns.
Dominion Voting Systems just happened to be the unfortunate bystander the attack on Joe Biden and the Democratic Party. An interesting point here is that, if it could be shown by the defence that the target of the malice wasn’t Dominion Voting Systems, but Joe Biden, would that mean the former hasn’t got a claim? I would find it grimly amusing if Giuliani’s case was to be built around and admission that he’d lied about Dominion Voting Systems, but only because he’d been using it as a tactic to discredit Joe Biden on behalf of Donald Trump.
nb. Devin Stone, a US lawyer, has an excellent Youtube channel under the name LegalEagle about the American legal system. It is particularly good on the various legal cases around the Trump campaign, and the interplay with the US Constitution, and he also defamation laws. A lot is based principles established by the Supreme Court, without which it’s pretty well impossible to understand some US court cases.
My very lay take is that Rudy “had his day in court”, indeed many days, and must have known that playing with petrol and matches might lead to his own eyebrows being singed