Yes. But even in those cases, to get more than a verdict in your favour plus nominal damages you’re going to have to prove actual damage.
Taking 4. into account, it seems quite obious that even if they win on all points, they will never be able to collect that amount of money from Giuliani and Powell. So why do they ask for such an amount?
I asked the same question. Some interesting answers here:
Note that generally speaking, a judgment for “willful and malicious injury by the debtor to another entity” is NOT dischargeable in bankruptcy under 11 USC 523(a)(6). Dominion is alleging that Giuliani, Powell, et al., acted with actual malice.
IMHO, proving malice isn’t difficult, at least on Giuliani’s part. He has publicly claimed fraud and then was careful to make clear that there is no actual fraud being alleged once he was in court. That speaks to the fact that he knew that there was no fraud, that he never believed there was fraud, but he only wanted to smear the election and those involved.
I’m not so sure about Powell, I believe she is more of a “true believer” but I could be wrong about that. I’m not familiar with any times where she has claimed one thing in public, then said the opposite once there were immediate legal repercussions for lying (such as being under oath in front of a judge). Again, I may be wrong, there may have been examples of that for her as well, I’m just not aware of them.
Another possible reason is to keep them permanently out of the game. If Rudy et al. end up owing a billion dollars after all is said and done, then essentially eveything they earn for the rest of their lives goes to the guys at Dominion. It’s hard to get a new political career going when you have no money.
And everyone who sees Rudy begging on the streets for petty cash is reminded of this.
It will also affect any books Giuliani wants to write about his work for Trump (or any other subject). If he has an unpaid judgement against him, he will be ordered to turn over any of the money he earns from book sales. (This happened to O.J. Simpson for example.)
I assume you meant this as a joke. But for the record, people are usually allowed to keep enough money for reasonable living expenses.
Yeah, it was mostly metaphorical. I imagine him trying to couch surf with Trump and it warms my heart.
A remake of the Odd Couple?
Off on a tangent here but is anyone else bothered by the legal use of the word malice? In general usage, malice means ill intent. But from what I understand, the legal usage of malice does not include ill intent. Malice in the legal sense just means you knew what you were saying wasn’t true. I would feel deceit is the better term for that. Any idea why the legal system went with the word malice?
What prompted this was my thought that if the courts used the traditional meaning of malice, Giuliani could have argued that while he knowingly said things about Dominion Voting Systems that he knew weren’t true, it wasn’t due to any ill intent towards the company. He told those lies because it benefitted his employer, Donald Trump, and he was merely indifferent about the effect they would have on third parties like Dominion.
I’m picturing something more like a cross-gender remake of Whatever Happened to Baby Jane?
I hope that wind turbine companies sue the hell out of right wing media, the Texas governor and others pushing the lie that wind turbines caused the blackouts.
this sounds like a similar case. a private business could lose customers and billions in business due to the lies being pushed by right wing media and right wing politicians.
I would certainly encourage both of them to spend all their remaining money on producing such a sit-com, just to see hundreds of millions of people not watch it, and them go down in flames one more time.
Malice does mean that there was ill intent; in other words, you have to show that the accused meant to do harm. It is different than negligence, where a person doesn’t take reasonable precautions to prevent harm, or takes an action knowing that harm is possible or probable but not taking the action with intent to harm. Malice means that harm was the intent.
In this case, malice isn’t necessary for judgement against Giuliani. The only time you need to prove “actual malice” in a defamation case is when the damaged party is a public official or candidate for public office, which Dominion clearly isn’t. (That standard was established in New York Times Co. v. Sullivan.)
However, proving malice does increase the penalties so it’s worth making the attempt in the case. Giuliani intentionally spread falsehoods with the clear goal of damaging Dominion’s reputation, because it was necessary in order to bring doubt on the election results.
You can think of malice this way… Let’s say Bob is greedy and has a rich mom, and wants her money. He doesn’t hate his mom, in fact he’s fond of her, but he loves money more. So with regret he murders her to collect the inheritance.
He didn’t kill her out of spite, or hate. He may even legitimately grieve her loss. But he still acted with malice because he intended to kill her.
In this case, it’s clear that the end goal wasn’t to harm Dominion, but harming them was necessary to sell the greater lie about election fraud. That is where malice comes in. The defamation was intentional and necessary for what they were trying to do. If Giuliani were able to plausibly state that he really thought Dominion was rigging elections then you might say he didn’t act with malice. But the fact that he admitted in court that they weren’t contesting the election results and could not honestly and credibly allege fraud shows he knew damn well that they were lies.
I don’t think your scenario is apt. Bob may not have hated his mother but he was seeking to cause her harm.
A crime without malice would be something like a property owner setting a building they owned on fire to collect the insurance and somebody was killed because they were inside the building when it burned down. The owner’s intent was to burn the building down, commit insurance fraud, and make money - they had no intent to harm anyone but didn’t care whether or not their act caused anyone’s death. In some jurisdictions, a crime like this is defined as depraved indifference.
I believe the standard was expanded in subsequent cases like Curtis Publishing Co. v. Butts and Gertz v. Robert Welch, Inc. .
That said, I generally hear about the actual malice standard in cases involving the media. I’m not sure how it applies in a case when a non-media source like Giuliani is the defendant. For that matter, I’m not sure how Giuliani is defined. He’s a lawyer represented the President when he made the statements. Does that mean the statements were from a private citizen or does the fact he made them on behalf of a government official give them a different status?
I think you misunderstood me… My point was that Bob did act with malice, from a legal standpoint, in committing murder. Bob might argue that he wasn’t killing his mom maliciously, he even loved her, but just really wanted (or needed) the money. But regardless it was malice. That was my whole point.
And again, Giuliani knew he was harming Dominion’s reputation, he needed to do that to make the vote fraud story believable to the public. It doesn’t matter if he cared personally about Dominion or if damaging them was the end goal, he needed to defame them and did so knowingly and willingly.
We do seem to be talking past each other.
If I can be forgiven for being pedantic, I am seeing three definitions for the word malice.
The first is a dislike for someone. This can include a desire for them to experience harm. I could for example say “I hate Donald Trump and hope he goes to prison.”
The second is taking an action to cause harm to somebody. This may or may not be illegal. For example I might cause harm to Donald Trump by voting against him, which is legal, or by punching him in the face, which is illegal. The second form of malice may also include the first form or not. For example, if I voted for Joe Biden against I hate Donald Trump then this would be an act intended to harm Trump and it would be caused by my dislike of Trump. But if I voted for Joe Biden because I had a bet he would win the election, then my act may have been intentional and caused harm to Trump but it was not caused by any dislike of Trump. I was simply willing to ignore the consequences to Trump caused by my action in order to further some other goal of mine.
(If I can go off on another tangent, this raises a question about the famous passage in Lincoln’s second inaugural address. When he said we should work “with malice towards none” was he using the first or second meaning of the word? Was he telling his listeners that we must not feel any hatred towards the Confederates or was he just telling them we must not act upon the hatred we may feel? I think most people incline towards the first nobler interpretation. But I’ll point out that Lincoln immediately followed with the words “with charity for all”. Charity is generally seen as good acts not merely as good intentions. So might we assume Lincoln also intended his use of malice to refer to acts rather than intentions?)
The third definition is the one that was established by the Supreme Court in 1964. (I will note that the term here is actual malice.) This explicitly defined actual malice as “knowledge that statements are false or in reckless disregard of the truth.” This is the definition I found unusual. Malice is otherwise seen as an act of harm not an act of untruth.
I can understand why the Supreme Court raised this issue. The media is generally seen as having a constitutional right to report information about a person even if that information causes harm to that person. So the Supreme Court was drawing a line between harm caused by true information and harm caused by false information and saying the former was protected. (This is essentially the distinction I made earlier between legal harm and illegal harm.) And they went further in saying that information could only be deemed false if it was known to be false, so some false information might be protected alongside true information.
So I understand the principle in play here. I’m just nitpicking over the term the Court used to describe the principle. I feel they should have chosen a term other than actual malice.
No that is felony murder as they were in the process of committing a felony (arson, fraud) when they did it.
Depraved indifference would be legally destroying a building that you own without checking for homeless, even tho you have called the police before about homeless there.
It’s not an either/or situation. Depraved indifference and felony murder are two separate legal concepts which both happen to be present in the scenario I described.