• Michael Tozzi

Defamation vs Freedom of Speech: Sidney Powell's Risky Accusations

Despite more than 60 unsuccessful lawsuits contesting the results of the 2020 Presidential Election, former President Donald Trump and his allies continued to assert that his loss had been due to fictional conspiracies and voter fraud until the bitter end. Despite the Department of Justice's confirmation that no significant fraud had occurred, they persisted with their claims. The most infamous lie by far was lawyer Sidney Powell’s “Kraken” case which included unfounded assertions that the Dominion Voting Systems Corporation had been part of a Venezuelan interference campaign to digitally switch vote tallies in favor of President Biden, thereby committing voter fraud.


While conspiracy theories have been a mainstay of Trump and his supporters to justify extreme opinions or positions, they often invoke vague enemies like the “deep state” (an amorphous amalgamation of federal bureaucracies) or Antifa, a radical and controversial left-wing movement that is not a cohesive, organisational entity. Implicating real companies in baseless criminal accusations, however, had severe consequences when Dominion filed a US$ 1.3 billion (GBP 947 million) defamation lawsuit in the Washington DC United States District Court against Powell and her associates in January 2021. Powell’s lawyers have since moved to dismiss the lawsuit, arguing that “no reasonable person” could have believed her claims to be serious, and that her repeated accusations against the company constituted legally protected political opinion.


Free Speech (Terms and Conditions May Apply)


Unfortunately for Powell and her lawyers, this strategy is unlikely to hold up in court. Her claims had not been presented as opinion, but as statements of fact in the multiple lawsuits she had filed before they were thrown out by various federal district courts and the Supreme Court. Even as these lawsuits were being dismissed due to lack of evidence, Dominion was sending cease-and-desist letters threatening Powell with a defamation suit to no avail.


While claiming vitriolic statements to be opinionated hyperbole protected by the First Amendment has helped news anchors such as Tucker Carlson and Rachel Maddow dodge defamation lawsuits, Powell is in a different position. Acting in her capacity as a lawyer, certain ethical standards are expected of her, as of all officers of the court. The Attorney General of Michigan has recently called for Powell’s disbarment, citing her counterfactual claims as examples of ethical misconduct. As Powell is licensed to practice law in Texas, which has adopted the American Bar Association’s Model Rules of Professional Conduct as guidelines for professional integrity, such violations could lead to disbarment.


US and UK Libel Laws Compared


In the US, libel constitutes written defamation, that is, false statements communicated by the defendant to a third party. US libel law has its roots in the nation’s colonial past under English rule and legal precedents where it was often wielded as a tool to curtail free speech.


The 1735 sedition trial of Peter Zenger, who had written articles criticising the rule of the governor of New York, was a crucial step in establishing a defendant’s rights in defamation lawsuits. His lawyer convinced the jury that stating true facts constituted a legitimate defense against accusations of defamation. This anti-censorship attitude in North American colonies would inform the writing of the First Amendment of the US Constitution, guaranteeing free speech. This forms the basis of Powell and her lawyers’ defense.


While speaking the truth, no matter how embarrassing to the plaintiff, is accepted as a “Complete Defense” that can resolve US defamation cases in favour of the defendant, Sidney Powell’s defamatory legal claims are verifiably disprovable. In fact, she infamously cited an instance of election fraud in a fictional Michigan county. Although the statutes of defamation laws differ slightly by state, a 1964 Supreme Court case, The New York Times v Sullivan, set precedents that would further inform decisions in defamation cases. This case established the burden of proof for plaintiffs to prove actual malice by the defendant in defamation suits. The Court’s unanimous decision in favour of The NY Times was predicated upon their conclusion that factual inaccuracies in an article about police treatment of civil rights protestors were the result of journalistic negligence and not wilful lying.


US law has sought to balance a defendant’s First Amendment rights to free speech with a plaintiff’s common law rights to not be unfairly defamed. In contrast to defamation law in England and Wales, the First Amendment serves as a powerful bulwark against “libel tourism”, a phenomenon where foreign nationals once filed libel lawsuits in the United Kingdom against critics such as journalists, whistleblowers, and authors.


Before 2013, UK laws disproportionately favored the plaintiff by placing the burden of proof on the defendant to prove that their words had not caused the plaintiff harm. Following congressional codification of the Libel Terrorism Protection Act into Federal Law in 2010, preventing US courts from upholding UK libel rulings, the UK instituted a series of reforms. These required plaintiffs to prove serious harm and malicious intent by the defendant and asserted the validity of the truth as a defense against defamation suits. Meanwhile, in Scotland, defamation law comprises a mix of local laws which critics decry as “antiquated”, along with precedents borrowed from English court rulings. The recently passed Defamation and Malicious Publication Bill attempts to codify and reform this area of law.


Dominion’s Case Against Powell


Despite the US’ history of asserting the primacy of the First Amendment, in marked contrast to the UK's relatively recent efforts to protect defendants, the “Kraken” lawsuits are by no stretch of the imagination safe from consequences. Powell’s admission that her prior claims to have had proof of electoral fraud were not meant to be taken seriously — despite being the basis for actual lawsuits- will likely make it easy for Dominion’s lawyers to meet the burden of proof for actual malicious intent.


Both potentially lost future revenue and incurred expenses stemming from libel comprise the compensatory and punitive damages sought by Dominion. As defamation law experts have observed, the actual settlement may ultimately be less than the amount originally sued for depending upon court evaluations of the case as it progresses.


Nonetheless, damages awarded for lost contracts as a result of post-election reputational damages may still be significant. Already, local governments have seen efforts to obtain Dominion voting machines stalled by public backlash from Trump supporters who thought the claims of those such as Powell, Giuliani, Flynn, and the former President to be credible.


Dominion currently provides voting machines and technological services in counties across 28 states. The lawsuit cites examples of local and state legislators attempting to ban the use of their services based on public distrust of Dominion’s brand resulting from Powell’s false claims. It projects losses worth hundreds of millions of dollars. Even more troubling, however, is the fact that Dominion has had to spend hundreds of thousands of dollars to provide security for its employees following death threats sent by far-right adherents of Powell’s accusations, highlighting the gravity of the case.


Conspiracy Theories and the Future of Libel Litigation


Despite Powell’s attempts to evade culpability, this case will likely be resolved in Dominion’s favor, as their lawsuit appears to be a clear-cut application of defamation tort law. The plaintiff’s burden of proof is to confirm that Powell’s statements have constituted repeated instances of libel and slander to the financial detriment of the company. In fact, her assertion that her words should not have been taken literally, despite filing her accusations in multiple election fraud court cases, would seem to prove “actual malice” through knowingly making false claims to deliberately harm the company.


Bizarrely, despite distancing herself from her radical conspiracy claims to dodge the seemingly insurmountable legal challenges she currently faces, Powell is set to speak at a QAnon “conference” in late May 2021. This conspiracy movement, along with the legal backlash against it, will likely continue to influence politics and litigation for the foreseeable future as the 21st century confronts the reality of the far corners of the Internet concretely impacting the world at large.