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?
So how can the court tell the good cases from the bad?
How can the court strike the right balance?
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
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.
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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