Sidney Powell Asks Court To Dismiss Defamation Lawsuit Because She Was Just Engaging In Heated Hyperbole… Even When She Was Filing Lawsuits
from the behold-the-kraken-and-the-unholy-mess-it-has-made-on-the-carpet! dept
In January, Dominion Voting Systems sued former Trump lawyer Sidney Powell for defamation. The voting machine maker claimed the self-titled “Kraken” was full of shit — and knowingly so — when she opined (and litigated!) that Dominion had ties to the corrupt Venezuelan government and that it had rigged the election against Donald Trump by changing votes or whatever (Powell’s assertions and legal filings were based on the statements of armchair experts and conspiracy theorists).
Sidney Powell has responded to Dominion’s lawsuit with what is, honestly, about the best defense she could possibly muster. And that defense is, “I have zero credibility when it comes to voting fraud allegations and certainly any reasonable member of the public would know that.” From Powell’s motion to dismiss [PDF]:
Determining whether a statement is protected involves a two-step inquiry: Is the statement one which can be proved true or false? And would reasonable people conclude that the statement is one of fact, in light of its phrasing, context and the circumstances surrounding its publication…
Analyzed under these factors, and even assuming, arguendo, that each of the statements alleged in the Complaint could be proved true or false, no reasonable person would conclude that the statements were truly statements of fact.
In other words, these allegations were just Powell’s “heated” opinions and should be viewed as protected expression. These wild accusations based on hearsay and YouTube videos were nothing more than contributions to the “robust discourse” surrounding the 2020 election.
As political speech, it lies at the core of First Amendment protection; such speech must be “uninhibited, robust, and wide-open.” N.Y. Times Co., 376 U.S. at 270. Additionally, in light of all the circumstances surrounding the statements, their context, and the availability of the facts on which the statements were based, it was clear to reasonable persons that Powell’s claims were her opinions and legal theories on a matter of utmost public concern. Those members of the public who were interested in the controversy were free to, and did, review that evidence and reached their own conclusions—or awaited resolution of the matter by the courts before making up their minds. Under these circumstances, the statements are not actionable.
Maybe so, as far as public appearances go. But Powell also made the same allegations in her election-related litigation. Somehow, Powell evidently feels this calling her statements nothing more than “protected expression” should contribute to her defense against defamation claims, rather than adding to the weaponry Dominion can deploy against her.
All the allegedly defamatory statements attributed to Defendants were made as part of the normal process of litigating issues of momentous significance and immense public interest. The statements were tightly focused on the legal theories they were advancing in litigation and the evidence they had presented, or were going to present, to the courts in support of their claims that the presidential election was stolen, denying millions of Americans their constitutional rights to “one person, one vote” by deliberately mis-counting ballots, diminishing the weight of certain ballots while enhancing the weight of others and otherwise manipulating the vote tabulation process to achieve a pre-determined result.
It’s a solid defense. Sort of. Claiming your wild speculation was just mildly-informed wild speculation that anyone of a reasonable mind would have viewed as nothing more than highly opinionated hot takes on election fraud is a good way to get out of defamation lawsuits. Powell isn’t wrong here: discussions about issues of public interest are given more First Amendment leeway, especially when both parties involved are public figures.
But this defense ignores one critical fact — one Dominion has accounted for. This “robust discussion” wasn’t limited to press conferences and Fox News appearances. It was also the basis for lawsuits filed by Sidney Powell — lawsuits in which she presented these same allegations as facts backed by sworn statements. Sure, it takes a court to sort the baseless allegations from the actionable ones, but filing a lawsuit in a court and signing it means the plaintiff believes all allegations to be true until otherwise proven false. And while there are some protections for allegations made in court, it’s pretty tough to argue averred statements of fact are also just harmless opinion tossed into the highly charged political ether.
Powell’s response claims her comments fall into the “exaggeration and hyperbole” end of the spectrum — an area of opinion that gets a lot of First Amendment coverage because it’s both heated and open to interpretation by “reasonable” people. But “exaggeration and hyperbole” isn’t generally welcome in sworn pleadings. Knowingly shoveling bullshit into a courtroom and asking the court to weigh in on its relevance and honesty isn’t something courts tend to tolerate. It’s this exact thing that has led to Michigan state officials asking the court system to sanction Powell for her bad faith litigation.
We’ll see where the court takes it from here, but it’s hard to see a court responding favorably to a motion to dismiss that basically says no one should take Powell’s allegations seriously… except for courts handling cases in which she’s the one filing complaints.