Sounds like she’s using the argument “all political statements are exaggerations; that;s what politics is; you can’t reasonably expect anyone to have believed me; therefore it wasn’t a statement of fact, only opinion, which is not actionable.”
… but she demanded the courts take action on these very arguments, so ¯_(ツ)_/¯
I don’t know if it’s accurate, but I heard the reasonable person standard being described as, “not necessarily what most people would do but what a reasonable person would do.”
It worked for Tucker Carlson, but as a talking head he had a slightly stronger case.
Was she? Did she make these same allegations in court filings? Or did she do more of what Guiliani did, and make outrageous statements to the press, but make much tamer allegations in what she actually filed? I’m not familiar with the specifics of what she filed.
And, yeah, even if they were in the filings, getting disciplined by the bar is probably preferable to bring bankrupted by a huge judgement for damages.
It could be a kind of clever tactic. Because, really, they were ridiculous claims. A bunch of people did believe them, and even act on them, but those were hardly reasonable people. The problem is that she was specifically appealing to those people. It doesn’t seem fair for her to get to use that defense when her target audience was specifically unreasonable people. I think the tactic will fail for many of the statements, but she might get one or two taken out of the case.
The truth is that she knowingly made these false statements to people she believed would believe them, and thus it was clearly slander. In the abstract it doesn’t matter whether they believed her - it’s her intent that matters. (In the concrete their belief is of course important for determining damages.)
Given the above, her only defense is to make the incredible claim that she was not literally trying to convince the suckers that there was election fraud - and since her statements to that effect are on record, the only defense she has available to her was to claim she was joking. So of course that’s the claim she’s making. That it was a big prolonged unfunny joke the whole time.
I would hope the courts would tell her to quit lying about her motivations, unfortunately I gather that motivations are rather difficult to prove in court.
Putting aside her “reasonable person” claim for a second…
Lawyers often say things in the media that they would not say in court. How many times have we seen a lawyer with and obviously guilty client say “my client is innocent of all charges, and looks forward to their day in court where we will prove that they have been framed by the police for this awful crime” when they know damn well that the police did no such framing, and are only saying so to sway public sentiment?
How is what she did all that much different? When she got into court the wild claims she made seemed to be greatly moderated.
Don’t get me wrong. I find the obviously false statements lawyers routinely make to the media offensive and should bear some sort of consequence. But when there has been none up to this point why should she be held to a different standard?
What percentage of such statements are openly slanderous to a third party?
Isn’t saying “my client has been framed by the police” slanderous?
And while this tactic may not be all that common, it’s certainly not uncommon.
I suspect that the police are usually satisfied when their innocence is proven by the accused being sentenced. And even if they’re not, I don’t really recall hearing about the police suing other people too often, for some reason. Perhaps they don’t have the spare funds?
How common is this type of defense against slander/libel? We know that conservatives and wackos (re: Alex Jones) have used it but do most defendants?
I don’t know if it’s common, but a famous example is Hustler Magazine v. Falwell
Basically, Hustler magazine printed a humorous article parodying a then current advertising campaign, and implying that Jerry Falwell had sex with his mother.
Finding: this was an obvious satire that no reasonable person would have believed to be factual, case dismissed.
I suppose the question is really, how often do people even try to sue when nobody believes the claim. I suspect not often.
The police don’t lose sales contracts because some lawyer lies about their actions.
There were so many, but my recollection is that during the “Kraken” phase, she filed an affidavit from the “intel expert” which was widely debunked. But I admit I have not read all of the pleadings; relying on the media accounts.
I’m not sure, but I’m guessing most defendants for slander or libel were not wasting the courts time with things ‘no reasonable person could believe’.
I guess that my initial response was what should happen to her as a lawyer and not as a defendant in a particular case.
Even if it’s a common defense Powell’s case is different for sure. The cases that I’m aware of involve a media company, not a lawyer. Here’s hoping she loses her case. I believe that she’s minorly responsible for the DC riot so I wouldn’t mind seeing some jail time (which isn’t possible in a civil trial, right?)
Yeah, she made pretty much the same allegations in court filings.
Consider, for example:
That’s a few highlights from the first five pages of the complaint (PDF!) she filed (and signed her name to) in King v. Whitmer, an attempt to overturn the election results in Michigan.
Holy cow. Yeah, she should be in quite a lot of trouble. And I don’t see how you could possibly say that no reasonable person would believe your statements if you’re a lawyer and you included the same statements in a pleading that you signed. By definition, you’re saying you have reason to believe those things are true.
Retired NYPD officer “facing charges of: knowingly entering or remaining in any restricted building or grounds without lawful authority; disorderly or disruptive conduct in a restricted building or grounds; and violent entry and disorderly conduct on Capitol grounds.”
Remember when Donald Trump sued Bill Maher for claiming that he (Trump) was fathered by an orangutan?