TRUTH OR CONSEQUENCES AND THE "BIG LIE"

The question of whether social media organizations like Twitter and Facebook should have immunity from liability for injurious falsehoods published on their sites is informed by Dominion's libel suit just filed against Rudy Giuliani. The distinctive complaint is titled "The Big Lie," and alleges details of the libels uttered by Giuliani as part of the "Big Lie" that Trump, not Biden, won the election.

In promoting the "Big Lie," it appears that Twitter was Giuliani's publisher of choice, though he also used YouTube, Fox News, Lou Dobbs, and others. Yet under existing law, Twitter was not legally responsible for any of the lies, no matter how obvious they were, and no matter how injurious they were to individuals and to private companies. On the other hand, Fox News and Dobbs are not in the clear, and Dominion's lawyers have put them on notice that they may be the next ones in the barrel.

Why is Fox News potentially responsible for hosting obviously false statements by Giuliani, and Twitter is not? There is no good answer to that question beyond Section 230 of the Communications Act. The distinction is unjust and should be eliminated. The New York Times, the Washington Post, CNN, Fox are all responsible for malicious lies they publish. There is no reason for Facebook, Twitter, and YouTube to escape the same responsibility.

(Ironically, former President Trump demanded the distinction be eliminated by the repeal of Section 230. He apparently didn't figure out that doing so would likely lead to Twitter, et al, banning his thousands of lies!)

All of this comes to mind when one reads the extraordinary libel suit for $1.5 billion dollars just filed against Rudy Giuliani, by Dominion, a maker of vote counting machines. Dominion had earlier sued Trump lawyer Sidney Powell, and in this suit only Rudy Giuliani. But plaintiff's lawyers have made it plain that they have others in their sights, including Fox News, Lou Dobbs, and others.

The complaint is more than 100 pages long. As someone who has prosecuted libel suits (and won a verdict that was, at the time, the highest ever confirmed libel award in a federal court),  l had to read this one, and I'm glad I did.

The gravamen of the complaint is that Giuliani, along with others, repeated a series of malicious lies about a company called Dominion, in an effort to overcome the vote count that elected Joe Biden. In particular, Giuliani and pals spread the tale that Dominion's vote-counting machines had an algorithm that was utilized to switch Trump votes to Biden votes. 

The Dominion-fraud-conspiracy libel was detailed, and Giuliani repeated it again and again, on any and every medium he could find, including Twitter, YouTube, and Fox News. Indeed, as evidence of his knowledge the Dominion-fraud claim was false, Giuliani never made the allegation in a court document, because he knew that making false statements to the court could result in immediate judicial sanction. Instead,  even after assuring courts that he was not alleging fraud, Giuliani would go outside the courthouse and say the opposite.

The Dominion complaint alleges that Giuliani repeatedly asserted:

i) He had definitive proof that Dominion was owned by a company called Smartmatic, which was created in Venezuela by Hugo Chavez and two pals, who created the vote-switching machine to keep Chavez in power. After Chavez's demise, his two partners have continued to run the company. (In fact, Dominion has no connection to Smartmatic--the companies are competitors.  Dominion is an independent American corporation, and its machine was invented in Colorado to help the poorly sighted.)

ii) He had proof the Dominion machines had switched enough votes from Trump to give the election to Biden. He continued to publish that knowingly-false defamation even after learning that in jurisdictions where votes were hand counted, the hand count perfectly matched the machine count.

iii) His source is a person named Ramsland --a man who has publicly claimed that "George Soros helped form the deep state in Nazi Germany in the 30s," along with help from George H.W. Bush's father, the Muslim brotherhood, and "the leftists." (While the claim is internally nonsensical, it is to be noted that Giuliani relied on a source who has picked up the anti-Semitic "George Soros" trope, this time asserting some sort of time machine impossibility given that Soros, born in 1930, was an unlikely powerful political figure "in the 30's".)

(And it was Ramsland who submitted "proof" of voter fraud in Michigan, using voter statistics from Minnesota.)

The pleading recites dozens of repetitions by Giuliani of the mythical Dominion-fraud-conspiracy even after he became aware of facts demonstrating his statements were manifestly false.

In fact, Giuliani used the Dominion-fraud-conspiracy libel to egg on the insurrectionists that attacked the Capital on June 6.

The result, alleges Dominion, was financially and emotionally catastrophic. The company has spent millions on enhanced security after receiving threats that its building would be blown up. And its employees have received threats they would be murdered.

The demand for 1.5 billion in damages is half for compensatory damages, and half for punitive damages.

Giuliani's public response has been two-fold: he a) says he is happy to be able to get a look at the Dominion's records in discovery and may countersue (for what, he did not say) and b) he whines that suing him was an effort to "intimidate the lawyer," a tactic with which his client is familiar. (See footnote.)

Once upon a time, my client sent me to Greece to negotiate away a criminal indictment resulting from a negative restaurant review. Seriously. Libel was then a criminal offense in Greece. (Not sure about today!) I was successful. I remember thinking that criminal sanction for defamation was uncivilized. ' 

"Uncivilized"? Dominion v Giuliani certainly provides food for thought, non? 

A bientot.

............................

There is no fixed schedule for these posts. If you would like to receive a notice of each new posting, please fill out the form at <"http://eepurl.com/gf7fS9">.

......................

Dominion v Giuliani rings a lot of bells for me. First, the libel case won against CBS, 3 million dollars, cert denied by the Supremes. Second, in a clear effort of lawyer intimidation, Trump sued a small law firm representing tenants in a Trump-owned building he wanted to demolish. We not only had Trump's complaint dismissed, we made him pay our legal fees.

 Read all about both, plus a lot more, in my memoir, "The Client Decides," available on Amazon and Kindle.