An Abject Apology Highlights the Legal Exposure for Promoters of Trump’s Election Fraud Fantasies

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American Thinker has unreservedly apologized to Dominion Voting Systems for publishing “completely false” statements about the company’s involvement in an imaginary anti-Trump plot that supposedly delivered a phony victory to President-elect Joe Biden. The conservative website, one of several right-wing outlets that promoted the wacky conspiracy theory, was responding to a letter in which Dominion demanded a retraction and threatened to sue for defamation if one was not forthcoming.

American Thinker and contributors Andrea Widburg, R.D. Wedge, Brian Tomlinson, and Peggy Ryan have published pieces…that falsely accuse [Dominion] of conspiring to steal the November 2020 election from Donald Trump,” says a statement that Thomas Lifson, the website’s editor and publisher, posted on Friday. It continues:

These pieces rely on discredited sources who have peddled debunked theories about Dominion’s supposed ties to Venezuela, fraud on Dominion’s machines that resulted in massive vote switching or weighted votes, and other claims falsely stating that there is credible evidence that Dominion acted fraudulently.

These statements are completely false and have no basis in fact. Industry experts and public officials alike have confirmed that Dominion conducted itself appropriately and that there is simply no evidence to support these claims.

It was wrong for us to publish these false statements. We apologize to Dominion for all of the harm this caused them and their employees. We also apologize to our readers for abandoning 9 journalistic principles and misrepresenting Dominion’s track record and its limited role in tabulating votes for the November 2020 election. We regret this grave error.

Lifson notes that “we received a lengthy letter from Dominion’s defamation lawyers explaining why they believe that their client has been the victim of defamatory statements.” Former Trump campaign lawyer Sidney Powell, a conspicuous promoter of the “completely false” story about fraud-facilitating software that supposedly changed Trump votes to Biden votes, received a similar letter from Dominion on December 16. Four days later, Powell tweeted that she was “retracting nothing,” because “we have #evidence” that the people running the company are “#fraud masters.” On January 8, Dominion sued Powell for defamation in the U.S. District Court for the District of Columbia, seeking $1.3 billion in compensatory and punitive damages.

Powell also has been sued by Dominion executive Eric Coomer, who figures prominently in her conspiracy theory, which alleges that he participated in “an antifa conference call” in late September or early October, during which he supposedly bragged that “Trump is not gonna win” because “I made fucking sure of that.” The defendants in Coomer’s lawsuit, which he filed in Denver County District Court on December 22, also include conservative activist Joseph Oltmann (who claimed to have “infiltrated” that alleged conference call), Trump attorney Rudy Giuliani, Conservative Daily, The Gateway Pundit, Newsmax, One America News Network, OANN White House correspondent Chanel Rion, Gateway Pundit owner Jim Hoft, blogger Michelle Malkin, and radio host Eric Metaxas.

The most prominent promoter of conspiracy theories involving Dominion, of course, is President Donald Trump, whom the company has not yet sued for defamation. In the 1982 case Nixon v. Fitzgerald, the Supreme Court ruled that presidents have “absolute immunity” from civil (but not criminal) liability based on their “official acts.” Trump’s liability for damage to Dominion’s reputation therefore would seem to hinge on whether his wild claims about Dominion count as “official acts.”

In 2019, Elle magazine columnist E. Jean Carroll, who has publicly accused Trump of raping her in the mid-1990s, sued him for defamation because he falsely denied knowing her and implied that she had invented the incident. A federal judge in Manhattan last year ruled that Trump’s statements about Carroll, which he made while he was president, “were not within the scope of his employment,” which implies that he is not entitled to immunity from her lawsuit under Nixon or the Federal Tort Claims Act. The Justice Department recently asked the U.S. Court of Appeals for the 2nd Circuit to reverse that decision.

Pro-Trump attorneys like Powell, Giuliani, and Lin Wood are shielded from liability for defamation based on statements they have made in court on behalf of their clients. But “the litigation privilege doesn’t cover all out-of-court statements,” says UCLA law professor Eugene Volokh, a First Amendment specialist, although “in many states the fair report privilege does cover lawyers’ public discussion of claims made in their lawsuits.” The extent of that privilege varies from state to state, Volokh says, and it is not yet clear which state’s standard would apply to the lawsuits filed by Dominion and Coomer, since “this whole ‘choice of law’ question is itself quite complicated.”

The legal exposure for media outlets and journalists is not complicated by the litigation privilege. Assuming that Dominion and its executives qualify as “public figures,” the plaintiffs would have to show that the non-lawyer defendants acted with “actual malice,” meaning they knew their defamatory statements were false or published them with “reckless disregard” for their accuracy. That standard, Dominion and Coomer argue, is easily met in this case, since the defendants made highly implausible claims that were not supported by credible evidence and were contradicted by multiple authoritative sources, such as the “industry experts and public officials” cited in American Thinker‘s retraction.

Newsmax and Fox News have aired corrective reports debunking election conspiracy theories amplified by some of their employees. Both outlets have received demand letters from Dominion and Smartmatic, another company that figures in the fantasy peddled by Trump, Powell, Giuliani, and Wood.

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