Lies And Consequences

As the crazy coming out of the White House intensifies, a question lawyers are asking each other is: why aren’t the courts sanctioning the lawyers who are bringing these clearly frivolous election lawsuits?

Even judges that Trump appointed are ruling against him, and that’s certainly comforting. But most practicing lawyers would expect a reprimand or even disbarment for behaviors similar to those that have been displayed by Rudy Giuliani and crew.

At least the courts have uniformly dismissed the wild allegations of these lawsuits, and that consistency means that even if these sleazy lawyers escape retribution,  a couple of threatened lawsuits by election technology companies promise to hit their counterparts in the dishonest right-wing media where they will hurt–in their pocketbooks.

Rudy Giuliani has suggested that one company, Dominion Voting Systems, had a sinister connection to vote counts in “Michigan, Arizona and Georgia and other states.” Giuliani further tweeted that the company “was a front for SMARTMATIC, who was really doing the computing. Look up SMARTMATIC and tweet me what you think?”

Sidney Powell is out there saying that states like Texas, they turned away from Dominion machines, because really there’s only one reason why you buy a Dominion machine and you buy this Smartmatic software, so you can easily change votes,” the Newsmax host Chris Salcedo said in one typical mash-up on Nov. 18. Maria Bartiromo of Fox Business reported on Nov. 15 that “one source says that the key point to understand is that the Smartmatic system has a backdoor.”

These wild allegations finally tried the patience of the companies being smeared. As it happens, Smartmatic wasn’t even used by the contested states. The company is a major global player, but it pulled out of the United States in 2007, due to a controversy over its founders’ Venezuelan roots. Its only U.S. contract in November was a consulting arrangement with Los Angeles County.

Last week, Smartmatic’s lawyer sent demand letters to Fox News, Newsmax and OAN, demanding that they “immediately and forcefully” clear his company’s name. He also demanded that they retain documents for a planned defamation lawsuit.

According to legal experts, Smartmatic has an unusually strong case. And evidently, an equally strong lawyer, J. Erik Connolly. Connolly won the largest settlement in the history of American media defamation in 2017, when he represented a beef producer whose “lean finely textured beef” was described by ABC News as “pink slime.”

Now, Mr. Connolly’s target is a kind of red slime, the stream of preposterous lies coming from the White House and Republican officials around the country.

“We’ve gotten to this point where there’s so much falsity that is being spread on certain platforms, and you may need an occasion where you send a message, and that’s what punitive damages can do in a case like this,” Mr. Connolly said.

Dominion Voting Systems has also hired a high-profile libel lawyer, Tom Clare, who is also  threatening legal action against Ms. Powell and the Trump campaign.

Mr. Clare said in an emailed statement that “we are moving forward on the basis that she will not retract those false statements and that it will be necessary for Dominion to take aggressive legal action, both against Ms. Powell and the many others who have enabled and amplified her campaign of defamation by spreading damaging falsehoods about Dominion.”

Those “enablers” include Fox News, Newsmax and OAN. As the article points out,

Newsmax and OAN appear likely to face the same fate as so many of President Trump’s sycophants, who have watched him lie with impunity and imitated him — only to find that he’s the only one who can really get away with it. Mr. Trump benefits from presidential immunity, but also he has an experienced fabulist’s sense of where the legal red lines are, something his allies often lack.

“Fabulist” means liar.

OAN and Newsmax have hyped the Trump campaign’s ridiculous election claims. OAN has even refused to call Joe Biden the president-elect. Both are relatively small enterprises, and a successful lawsuit over their roles in Trump’s disinformation/conspiracy campaign could destroy them. Such lawsuits probably wouldn’t destroy Fox, but they could certainly inflict damage.

According to the report, Fox News and Fox Business have mentioned Dominion 792 times and Smartmatic 118 times between them. They’ve already begun to backtrack, airing a “corrective” segment on shows hosted by Lou Dobbs, Jeanine Pirro and Maria Bartiromo.

Probably too little, too late.

This damaging, unethical behavior is why we have defamation laws and punitive damages.

I wonder what would happen to the “usual suspects”–the sources of consistently dishonest rightwing propaganda– if everyone they lied about sued them. Maybe we need a nonprofit legal organization that would represent people and organizations who’ve been libeled but can’t afford to sue..

I’d donate to that!


  1. Smartmatic and Dominion would be further applauded if they were to survey postings and comments made on social media platforms such as Facebook and randomly select a few of them to sue as well. Even though Section 230 insulates social media companies from anything listed on their platforms, the same protections (a racket) do not apply to their account holders.

    I recall back in the 90’s when the big record labels went after users of Napster, a peer-to-peer music sharing service and whose founder was an early investor in Facebook. One court case resulted in a judgement in favor of the record company of $150,000 PER SONG. Napster ceased to exist not long after.

  2. Some time ago on an earlier blog I commented about the frivolous law suits filed by prisoners against Indiana’s prison system; all were required to be responded to. After one prisoner filed suit because the prison would not put a hot tub in his cell so he could soak is bad back and another filed because there was not enough fudge in the fudge ripple ice cream donated by the manufacturer, a panel of judges was appointed to weed out such frivolous law suits to clear court calendars. Trump’s people are throwing all of his mentally unbalanced demands together, using legal language to hide their source, before he loses all power at noon on January 20, 2021. There is not time left or judges willing to serve if such a panel were to be appointed as they are busy fighting the craziness already before them.

    “Morning Joe” ran a film clip of Pat Robertson, one of Trump’s staunchest evangelical backers, this morning as Robertson asked Trump to face the fact that he has lost the election and should move on. Robertson also said that Trump has been accused of many lies but they are NOT lies as long as Trump believes what he is saying. Trump has paid little, if any, consequences for his lies and business thievery for 40 years; will he begin facing consequences when he leaves the White House? Either willingly or under escort by those he considers HIS military?

    Do his powers extend to the civil law suits waiting for him to leave the protection of the presidency? Stay tuned over the next THIRTY DAYS; same Bat Time, same Bat Channel.

  3. We should not applaud the lawsuits too soon or too loudly. Speech related to voting machines is about as “political” as speech can get. It should be in that class of speech that is most protected. Corporations wangled “rights” out of Citizens United. We should be wary. The next lawsuits might be brought by chemical corporations angry over criticism of environmental contamination they cause. I detest Fox. The new pop-up neo-fascist networks are even worse. However, those whom corporations whack today could me prototypes for others (i.e., us) getting whacked tomorrow.

  4. Hoping to see these strategic lawsuits move forward .
    Freedom of speech is one thing , libel is another thing entirely. Fox , NewsMax and OAN have crossed the boundary , and now they need to pay for their transgressions . May the prosecution leave no stone unturned .

  5. Unfortunately the consequences for all the lies made by the Trump Administration and the Republican Party have been heaped upon the American people. Those consequences include hundreds of thousands Covid deaths, millions pushed into joblessness and poverty, a slow motion destruction of the rule of law, the elevation of racism and child abuse as some kind of attribute, the loss of world standing as the beacon of liberty, and the dismantling of governing agencies in order to aid and abet polluters. Yes, the people, all of the people, are now paying and will continue to pay the price of our government’s lies.
    Russia had Chernobyl; America had Trump.

  6. Harkening back to Michael Cohen’s book, just about everything he said about Trump is coming true. He is now trotting out this collection of monsters to mouth what he won’t. He uses people for his own sake. It’s what psychopaths do.

    I just hope that, as a nation, we’ve looked into the abyss of tyranny and insanity and have drawn back in horror. We’ve come this close to losing our democracy to outright fascism led by a doddering old lunatic. I’m sure German historians will remind us of that experience.

    Democracy is a fragile thing, if people don’t make it work. They make it work by voting. We still had 1 in 3 potential voters stay home on election day. The electoral college’s usefulness now is over. All it does is give idiots like Giuliani and Powell more excuses to throw up on themselves and the good people in our country. The 25% of Americans who support this tyranny have always been there. They will continue to be there and will gain strength as the 75% ignore their duty to vote and participate in their governing.

  7. I doubt the retraction by the radical right “news” sources will make an impact on those being gaslighted by trump. They will explain it as the “deep state” forcing them to retract.

  8. One of the consequences of Trump which will be measured in years is how voters hold the Republican Party accountable for inflicting him on the country. Of course the first report will come from Georgia soon.

  9. The Trumpet with a certainty knew how play his Cult. The Trumpet’s lies and distortions about the 2020 election as expected produced the toxic extreme of “true believers”. A series of judicial defeats did not dull the edge of the belief in massive fraud. The Trumpet or the “true believers” had to find another way to make their case.

    The other way was to feed the Trump Cult another conspiracy hypothesis – The Voting Machines were rigged in Democrats favor. The Trump Cult is ever eager to believe in conspiracies – the more fantastic the more believable. Playing to their viewers Fox jumped right on the Voting Machines Conspiracy Hypothesis.

    The blow back from the companies being libeled and slandered was probably not anticipated by Fox News, etc. After all Fox and their fellow travelers had since the Trump Regime began regurgitated daily one false hood after another by The Trumpet.

    Dominion Voting Systems and Smartmatic have struck back, they were not about to allow what is now a two bit hack like Rudy Giuliani among others damage their reputations in public.

  10. Very pleased to see these voting machine companies fight back against the smears and lies by the Trump Campaign and propagated by Fox, OAN and Newsmax. It shouldn’t be difficult in this egregious instance to prove actual malice underlying these lies and smears, a rigorous burden that allows media organizations a broad berth to publish opinions and even to report news that turns out to be untruthful. The First Amendment absolutely protects truthful statements but not deliberate lies. Mr. Small’s professed concerns that this suit will chill protected reporting are in my view wholly unfounded.

  11. This may come as a surprise, but I 100% agree with Mark Small. We’re going down a dangerous road when it comes to corporate defamation lawsuits. I had forgotten about the “pink slime” lawsuit. Personally I would be very disinclined to give a beef producer damages because its beef was called “pink slime.” I’m surprised ABC News settled the case. I have my doubts a jury would have awarded damages.

    Still what the Trump people are doing does test my patience. Smartmatics’ allegations are particular off-the-mark. Dominion’s allegations are also pushing the envelope…the outrageous claims against that company have pretty much destroyed its reputation…which is not nothing.

    Off point, I would add that I 100% support always having a paper trail and doing regular audits of these voting machines provided by private companies. Although the Trump campaign hasn’t shown any irregularities, there is the potential for mischief with regard to such machines. It would be possible, for example, for Russia to have an employee on the inside of one of the companies, putting a bug in the machine which flips votes only to go away after the election. HBO had a documentary showing how it could be done. That’s why you have paper ballots so that such shenanigans can be uncovered. And that’s why we need to have regular audits of the machines. Some states do have such audits, but others don’t.

  12. Good NPR reporting today on international cybercrime and how unprepared we are in terms of dealing with it. We really have no offense and no defense at the level of the offenses of our enemies. We can’t even figure out how mad to get about it.

  13. Paul K. Ogden; “Off point, I would add that I 100% support always having a paper trail and doing regular audits of these voting machines provided by private companies.”

    I don’t find your comment off point if you remember Rudy Giuliani’s comments after the witness he produced who saw dead people voting. He followed her comments with his statement (paraphrqased) “Out of many of the 12 voters there were many who inserted their ballots 10 or 11 times.” Those machines certainly need to be audited; IF they exist anywhere but in Rudy’s mind. Actually; shouldn’t all voting machines be audited on a regular basis in today’s world of electronics and cyber communication? But who would control the electronics auditing the electronics?

  14. Clark v. NYT provides some protection with its actual malice requirement. 230 protects the messenger, etc., but it’s too bad that we have to employ defamation laws to protect the courts themselves from having to deal with propaganda disguised as lawsuits and the lawyers who file such trash. I can see filing suits where the facts and law may be unclear; I cannot see filing suits for purposes other than pointing out the wrongdoing and the redress sought, and not for pr appeals to cults. While such filings may not amount to a contempt of court, perhaps if courts with their dismissals of such trashy suits contemporaneously levied generous costs and fees to those sued and added a paragraph of opinion denouncing such waste of the court’s time along with a warning from the bench to counsel to cease and desist filing suits which were frivolous on their face, etc. it would help. Perhaps a number of such paragraphs from various courts would slow if not end such junk suits. Perhaps.

    As for Trump’s extrajudicial turnaround of the election via a declaration of martial law, it can’t happen. Why? Because Trump is chasing an empty vessel. The election is over and certified and neither troops nor even the Supreme Court can alter that reality. The end. Of course, I suppose Trump could quit pretending that he won and simply rule by military authority, but since such declaration is illegal and for corrupt purpose I think the generals would not obey him. In any event, we are long since beyond application of a 25, but better late than never. Do your duty, Pence!

  15. Dominion and Smartmatic have no choice but to sue in a most aggressive manner. The all edged accusations left unchanged will end their future business in the US thus their survival.

    They should also pursue a loud and constant PR campaign on a daily basis against the perpetrators.

  16. Yes political speech needs protection, but so does the truth. News organizations (if Fox, Newsmax, and OAN can be called that???) have a higher obligation to do the digging to uncover the truth before they report. Hopefully these lawsuits will remind them of that legal obligation if they won’t respect their journalistic obligation.

    Lawyers and the courts have a higher obligation still. The final arbiters of justice are our courts, and lawyers are officers of the court. Those who spread misinformation and disinformation – especially when they do not do due diligance to discover and report the facts – should be held to account.

  17. The three most important things are truth, beauty and kindness. At age 74, Trump evinces no knowledge or even awareness of any of these. He never speaks of them or of anything related to them, so it’s reasonable to conclude he has not experienced them. He has gone five years without saying anything remotely humorous, has no intellectual interests, ignores music and all sports except for golf, the most narcissistic one, shows no signs of enjoying anyone’s company, has no hobbies, and speaks ill of all who fall short of adoration for his magnificence. If he were not so energized by his neuroses, what would he live for?

    Today’s existential question is: “Can a small cabal of incompetents, led by a troubled president bent on a treasonous takeover of our government, look forward to any degree of success if 73 million bozos support their effort?”

  18. Thank you Theresa: “Russia had Chernobyl; America had Trump.” And, apparently Russia also had Trump.

  19. A revision of Section 230 would give defamation law suits a target to hit on the social media side. Republicans be pressing this issue, but they might not realize it, they could be trying to kill their personal golden goose.

  20. Two days ago this blog was filled with pleas to ‘forgive and forget’, to which I replied:
    Forgive and forget; move on; come together?

    Listen up. Fine; it’s one set of ethics that makes it okay and honorable for you INDIVIDUALLY to turn your cheek, but it is an entirely different set of ethics — a dishonorable ethic — for leaders to turn the CUMALATIVE cheek, to turn your cheek and my cheek and half the country’s cheek.

    If current law does not permit imposing consequences on pure and glorified meanness in the name of partisan politics, which we have witnessed from republicans in the last five years, then formulating law that does allow that proper justice to go forward should be the second order of business after Covid-19.

  21. Here is a piece of legislation from the Guardian Web Site Trump would like:

    Vladimir Putin has signed legislation that will grant former presidents of Russia lifetime immunity once they leave office.

    The bill, which was published online on Tuesday, gives former presidents and their families immunity from prosecution for crimes committed during their lifetime.

    They will also be exempt from questioning by police or investigators, as well as searches or arrests.

    The Trump wishes he had this legislation.

  22. I don’t do tweets, but I did look up Smartmatic, Sheila – interesting – according to Wikipedia, the last US use was by the Republican Caucus in Utah in the 2016 primary with terrible results.

    Of course, if the wackos understood computers, they would know that one could write the software in a way to kick off a small program to shave votes – you want to win with 52%, not 99% – and then erase that small program – an idea suggested by Dr. John R. Koza, privately, some 50 years ago. That is why paper trails are essential, and the concept of “proprietary election software” should be limited. It should be legal to be owned, but not to keep it secret. Open source is a much better idea for this.

    As for suing bad corporate actors, I don’t see that making corporations “special” because it would lead to evil 1st amendment violations is a good idea, nor a real worry. I actually think that the fines, which are usually corporate loose change, should be huge. Since we can’t make the CEO and top execs liable, we should make the fines so severe that the board will want to sack top management — although they would probably cut their workforce and then give the CEO a bonus for that. Greedy people deserve to be impoverished. They won’t respond without feeling financial pain.

    As for Sheila’s proposed legal non-profit to aid people who have been libeled – I’m all for it!

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