The professional propagansists have learned how to express pure opinion in a way that their audience interprets as pure fact while (they hope) the courts will find the same speech to be pure opinion.
Nice scam if you can make it work.
The “reasonable person” standard is a good one to base your civilization on. As long as most of your citizens are in fact “reasonable persons”. Once they are not, you don’t have a civilization any more, except due to pure inertia.
Her defense, I think, is basically, “She’s crazy enough to believe this shit, so you can’t take away her law license for lying. But it’s not her fault half the country is crazy enough to believe her, so you can’t hold her responsible for how people reacted to her words.”
Having read the brief filed by her defence, it is not at all clear what exactly they are arguing and I think it’s intended to be that way.
One view which I have seen expressed is that her argument is not that any reasonable person would have known she was lying because what she was saying was so obviously dumbass, per se. Rather, her argument is that - because what she was saying was so obviously dumbass - no reasonable person could have believed that she was stating facts, and that rather they would have known she was merely setting out her client’s untested case.
However on my view of the brief, they are quite obviously equivocating and exactly what they are arguing is hard to say. They are walking a fine line and (probably deliberately) mixing up the arguments. They jump between the claim that what she said was protected as political speech and the claim that what she said was legal opinion.
Depends on which judge it’s in front of. Any judge worth his/her title should eat these fools for lunch and have the lot of them in jail for contempt of court. Somebody looking for an excuse to support the crazy … maybe not so much.
It goes to show why organizations policing themselves never works well.
As to the libel suit I think he is saying that, while the bar is high, Dominion is actually making a legit case for it here and it might be enough. Certainly credible enough that if you were Powell you should be legitimately worried. Powell’s defense is laughable and she made lots and lots of ridiculous claims publicly. Not easy to duck and weave on this one.
I’m not even a US lawyer let alone a defamation lawyer, but what little serious legal analysis I have read of Power’s defence was not dismissive. Their take on it was essentially that in the US, in the political arena, the bar for winning a defamation action is extremely high because of the imperative of leaving political speech free. And that the courts will be similarly reluctant to make a lawyer liable for stating their client’s contested allegations.
Without question Powell pushed the boundaries to the extreme but what I read suggested she might not have broken them.
I’d be interested in the views of doper lawyers who may know more.
Also not a USian lawyer, but my understanding is that the “actual malice” standard applies when the plaintiff is a public official or public person. If you’re not one of those, then the more relaxed common law standards apply. The plaintiff then doesn’t have to show actual malice on the part of the defendant.
Is any corporation that provides services to a government automatically considered a public person? If not, then Dominion doesn’t need to meet the strict test of actual malice. There are also some case lines that say a corporation is never a public figure for these purposes.
Is the principle applicable to “public figures” the same as the principle applicable to political speech? I thought it was different but I don’t really have a clue.
I don’t want to find myself in the position of arguing Powell’s case but I think you can see how this will be spun to be more complicated than your restatement suggests. I’m not saying I disagree with you but I can see how it will be characterised and contextualised.
(hijack)
I would say the presenter’s personal philosophy is likely left-leaning, but the show is not. Once again, this is simply a matter of “reality has a liberal bias”.
LegalEagle started out as an education resource for law students; the majority of early videos were specifically about law school. Then they moved into legal reviews of fictional cases, again as a teaching aid.
Later, due to so many cases in the Trump administration being in the public consciousness, they started doing “real law reviews” of these cases. Generally-speaking, he simply keeps to the letter of the law, and advocates for both sides. He tries to avoid editorializing in the law reviews.
It just happens to be that a sober review of the law in these cases invariably makes Trump and his cronies look like fucking clowns. Hence why so many e.g. election fraud cases got thrown out, even by Trump-appointed judges. That’s not bias.
The actual malice requirement is an aspect of political speech protections. In New York Times v Sullivan, the Supreme Court held that the 1st Amendment protection of political speech meant that speech about a public figure or public figure had to meet the standard of actual malice in order to be actionable under defamation laws. The Court held that this requirement was necessary to ensure that defamation laws could not be used to deter political debate.
But the rationale for that actual malice requirement was only for events in the political arena. If someone was alleged to have defamed a person who was not in the public arena and did not hold any political office, the actual malice standard didn’t apply. For instance, if someone alleged that a bookkeeper for a private company was cooking the books, the bookkeeper wouldn’t need to show actual malice in a defamation claim, because they weren’t a public official or a public person.
Would Dominion have to show actual malice? It’s not a public official. Is it is a “public figure”? Who had heard of Dominion before Powell and her ilk started making allegations about it? Is any corporation that provides services to a government part of the “public figure” category?
There’s also some case law that says that a corporation is not a public figure.
I agree it’s an issue that Powell will definitely raise. We’ll have to wait and see how it plays out.
It discusses the point about corporations not normally being considered a public figure.
It also makes the point that someone can be an “involuntary public figure” eg if they’re charged with a criminal offence. Would that apply to Dominion and Smartmatec, because they provide election tally equipment ? We’ll have to wait and see.
Maybe they can convince a court that Dominion is a public figure, although that seems difficult. But I don’t think they will succeed in arguing that every Dominion employee is a public figure.
In a unanimous opinion authored by Justice Brennan, the Court ruled for the Times . When a statement concerns a public figure, the Court held, it is not enough to show that it is false for the press to be liable for libel. Instead, the target of the statement must show that it was made with knowledge of or reckless disregard for its falsity. Brennan used the term “actual malice” to summarize this standard, although he did not intend the usual meaning of a malicious purpose. In libel law, “malice” had meant knowledge or gross recklessness rather than intent, since courts found it difficult to imagine that someone would knowingly disseminate false information without a bad intent.
