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.

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Filed Under: defamation, opinion, sidney powell, voting fraud
Companies: dominion systems


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  • icon
    That One Guy (profile), 24 Mar 2021 @ 2:33am

    'Were you lying to that court, this court, or both?'

    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.

    Funnily enough I can't help but suspect that most judges won't look too kindly on a defense that amounts to the defendant claiming that they were lying to the courts in other cases by claiming that mere opinion was in fact sworn statements of fact and deserving of being treated as such... but only within the confines of those particular cases.

    As for the 'no-one reasonable would have believed me' defense while it's true that no-one reasonable should the fact of the matter is that a much higher than zero number of people did(and still do), and given the context of the time with multiple sources claiming fraud including no less than the then president to argue that it's outlandish that such claims would be seen as believable is an incredibly weak claim at best, so as defenses go I'd think that one should be DOA though it is somewhat funny that she's found herself in the position of arguing, in court, that she absolutely should not be trusted or listened to and that all the claims of fraud were in fact nothing more than personal opinion not based upon any real evidence.

    reply to this | link to this | view in chronology ]

    • icon
      migi (profile), 24 Mar 2021 @ 9:36am

      Re: 'Were you lying to that court, this court, or both?'

      As a matter of subjective opinion you're completely right about people blindly believing things that are wildly untrue.

      However as a matter of law (and IANAL) the standard is something like a reasonable person knowing the totality of the facts (or circumstances or something). This is a much higher standard and makes convicting her of defamation a much harder push.

      I don't know if evidence that many people did believe something affects the courts calculation at all, my suspicion is that it does not.

      reply to this | link to this | view in chronology ]

      • icon
        bhull242 (profile), 24 Mar 2021 @ 4:36pm

        Re: Re: 'Were you lying to that court, this court, or both?'

        Your suspicion is accurate. IANAL either, but every lawyer I’ve seen speak on the subject has explicitly said that the fact that actual people genuinely believe(d) that these statements were intended to be taken as statements of fact and not mere exaggeration or hyperbole has little to no impact on whether or not it is actually a statement of fact as a matter of law.

        That said, even under the current standard, the fact that these were sworn statements of fact and sworn factual allegations in actual litigation does tend to suggest that a reasonable person knowing the full context of the statements made would reasonably believe that they were intended to be taken as statements of fact even when stated outside the courtroom by the same person.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Mar 2021 @ 2:36pm

      Re: 'Were you lying to that court, this court, or both?'

      Literally none of that was true, we were merely fomenting insurrection, I swear it.

      reply to this | link to this | view in chronology ]

  • icon
    Flakbait (profile), 24 Mar 2021 @ 3:49am

    Sqauring the circle

    She'll be able to get away with it provided she demonstrate to the court(s) that she can successfully divide by zero.

    reply to this | link to this | view in chronology ]

  • identicon
    David, 24 Mar 2021 @ 3:56am

    Objection!

    Powell's assertions and legal filings were based on the statements of armchair experts and conspiracy theorists

    Even with the qualifiers, this is an abuse of the terms "experts" and "theorists" since it implies actors believing their arguments to be sound, making Sydney Powell a mere conveyor of gullibled bullshit.

    For one thing, she created the most prominent parts of the swill she was spewing. For another, I see little enough proof that the bulk of people coming up with that crap (including herself) actually believed in it.

    Exactly because of the danger of tall tales like attributing the U.S. "Reichstagsbrand" to Antifa (something which Republicans and the right-wing media still indulge in) one should not accommodate the "I am just a fool" defense of those arsonists that are continously and consciously attacking the foundations of the republic.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 24 Mar 2021 @ 8:29am

      Re: Objection!

      "Exactly because of the danger of tall tales like attributing the U.S. "Reichstagsbrand" to Antifa..."

      I object, your honour! At most January the 6th was comparable to the "Bierhallenputsch".
      The "Reichstagsbrand" isn't scheduled until 2024.

      "... one should not accommodate the "I am just a fool" defense of those arsonists that are continously and consciously attacking the foundations of the republic."

      Oh, how I would love to see a judge strike down that defense with an "It didn't work for Goering", referencing the Nürnberg trials...

      reply to this | link to this | view in chronology ]

  • identicon
    kallethen, 24 Mar 2021 @ 4:23am

    I love the subtext in this

    So if no "reasonable" person would believe her allegations, what does that say about all of the Trumpers who bought into them?

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 25 Mar 2021 @ 8:51am

      Re: I love the subtext in this

      "...what does that say about all of the Trumpers..."

      The same thing everything else about them says?

      I mean, those people literally believe a "liberal" is a high society elite who orders barbecued babies as takeout from the Kenyan Muslim's child-trafficking satanist church headquartered in some pizza parlor's basement...

      And that someone wearing a yarmulke means he's part of an international conspiracy wielding space-based death rays.

      The only new thing we've learned about Trumpers lately is that they also don't know how toilets work, thinking the middle of the floor in a government building is where you need to poop.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Mar 2021 @ 4:32am

    Oh, one more thing Ms Powell...

    You say that no reasonable person would conclude that the statements you made in court were truly statements of fact, right? And you made this statement in court, right? Are you familiar with the Liar Paradox?

    reply to this | link to this | view in chronology ]

    • identicon
      Bruce C., 24 Mar 2021 @ 1:25pm

      Re: Oh, one more thing Ms Powell...

      Ironically, the fact that no court allowed her suits to go forward actually constitutes evidence that no reasonable person would believe her statements.

      On the other hand, even without the liar's paradox, she also runs into the problem that courts hearing the election cases were giving her the benefit of the doubt that her claims at that time weren't frivolous.

      I guess sanctions or disbarment alone are preferable to a billion dollar verdict followed by sanctions or disbarment and bankruptcy.

      reply to this | link to this | view in chronology ]

  • icon
    Bloof (profile), 24 Mar 2021 @ 4:33am

    'Your honour, I was simply being a Republican when I vomited that torrent of lies and irreparably damaged their business. People know we're habitual liars who cannot be trusted or taken seriously on any topic, except all the people that vote for us!'

    reply to this | link to this | view in chronology ]

  • identicon
    noname, 24 Mar 2021 @ 4:50am

    Disbarrment?

    IANL, but doesn't admitting to a judge that you've systematically lied to the courts get you disbarred from the practice of law? I suppose that is cheaper than paying Dominion for the damage you have done by the strategy of willful falsehoods.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Mar 2021 @ 6:28am

      Re: Disbarrment?

      cries in Liebewitz

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Mar 2021 @ 9:04am

      Re: Disbarrment?

      Yeah, she's arguing either she should be disbarred or she should lose the defamation case. Both are warranted and deserved.

      reply to this | link to this | view in chronology ]

    • icon
      Coffee U (profile), 24 Mar 2021 @ 9:43am

      Re: Disbarrment?

      The legal system moves really slowly to do that, and repeatedly tends to defer to lawyers. It took Steele et all, how many years of active fraud upon the courts? S Powell might be gambling that if Trump can get in in 2024 the bar will be forced to look the other way (in the same fashion that Giuliani isn't facing disbarement).

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 24 Mar 2021 @ 1:45pm

      Re: Disbarrment?

      Should it? Absolutely.

      Will it? Well, as past TD articles have noted covering various lawyers and their gross abuse of the legal system it takes a lot for a lawyer to be disbarred, such that if it occurs this time it'll almost certainly have little if anything to do with her actions and more be due to how public this is and the damage letting her stay licensed will do to the profession, and even then I wouldn't put good odds on it happening.

      reply to this | link to this | view in chronology ]

  • icon
    merk (profile), 24 Mar 2021 @ 5:11am

    haven't we seen this before?

    Was this not the defense used by Rachelle Maddow when OANN took her to court over her Russia-gate accusations? Sydney is a bit further into the deep end.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 24 Mar 2021 @ 6:46am

      Re: haven't we seen this before?

      Not at all. Maybe you need to spell her name correctly when Googling the information to remind yourself of the facts, which you obviously need to do because they're not even remotely related.

      Maddow said that OAN hired a Russian propagandist. Which she defended against when taken to court for libel, because it was 100% true. She stood by her words, because they were factual, and she was cleared.

      Powell told a number of lies about Dominion, and is now trying to claim she wasn't serious because she's legally liable for a huge amount of money, due to the material damage she demonstrably caused through her lies. You might notice that her "I didn't mean what I said" is the exact opposite of Maddow's "I did my research and I know what I said was true". Especially since Maddow was only speaking on her TV show, while Powell did it in court filings.

      Unless that was a particularly poor attempt at whataboutism, I suggest you refresh your memory on the facts.

      reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 24 Mar 2021 @ 6:49am

      Re: haven't we seen this before?

      Kinda? Rachael Maddow disclosed true statements and then formed opinion based on those true statements. Her defense was that the facts were true and therefore not defamatory, and her conclusions were opinions reasonably reached by the disclosed facts and therefore not defamatory. She knew the reporter worked for Russian State Media (among other facts, this is off the top of my head) and so claiming the reporter was writing Russian State propaganda is a reasonable conclusion.

      In this case, Sydney Powell is not claiming an underlying factual basis for her opinions. The reason she is being sued is because her factual claims were false. Sydney is claiming that her factual inaccuracies were in fact rhetorical hyperbole and no one would assume her facts were indeed facts. That's why the lawsuits she filed are important - she made express statements under penalty of perjury that her facts, the basis for the lawsuits, were true.

      We have seen this behavior before - Alex Jones and Tucker Carlson have both made similar defenses for content they spewed on their shows. Focusing on tucker, he was sued for defamation by survivors of school shootings. Tucker had claimed they were lying and that those grieving the dead were crisis actors. Tucker argued that the contents of his show is opinion, and no one would believe what he says is factual. Tucker wasn't saying here is the company this parent works for, here is the kid alive and well, its all fake. He presented no facts, only assertions. That is a more dangerous territory. That is why he didn't rely on Maddow's defense that his work was reasonable opinion based on disclosed facts. Rather, he relied on a defense that his bullshit was so insane no one should have believed him.

      The differences between the defenses should be clear. but if not:

      1) I have evidence that X works for Y, and therefore it was reasonable to hold the opinion that he did Z

      2) I lied but my lies are so outrageous no one should believe me and you can't hold me accountable for the rubes who did.

      reply to this | link to this | view in chronology ]

    • identicon
      Baron von Robber, 24 Mar 2021 @ 8:19am

      Re: haven't we seen this before?

      Narrator: No. It wasn't.

      reply to this | link to this | view in chronology ]

    • identicon
      N. 'Duke' Orse, 24 Mar 2021 @ 9:37am

      Re: "merk" seen only once before!

      Making a SECOND COMMENT ALREADY, IT'S "MERK"!

      So yet again, we're supposed to believe that some person waited 3 and half years, then found this topic on waning site of such interest that just had to comment. BALONEY. This is ASTRO-TURFING.

      reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      N. 'Duke' Orse, 24 Mar 2021 @ 9:38am

      Re: "merk" seen only once before!

      Making a SECOND COMMENT ALREADY, IT'S "MERK"!

      So yet again, we're supposed to believe that some person waited 3 and half years, then found this topic on waning site of such interest that just had to comment. BALONEY. This is ASTRO-TURFING.

      reply to this | link to this | view in chronology ]

      • identicon
        kallethen, 24 Mar 2021 @ 9:44am

        Re: Re: "merk" seen only once before!

        You are now so obsessed with "astro-turfers" that you are pointing out those arguing for your side?

        reply to this | link to this | view in chronology ]

      • identicon
        Baron von Robber, 24 Mar 2021 @ 10:25am

        Re: Re: "merk" seen only once before!

        Narrator: Reality was pounding on his door but he wasn't home.

        reply to this | link to this | view in chronology ]

      • icon
        bhull242 (profile), 24 Mar 2021 @ 4:56pm

        Re: Re: "merk" seen only once before!

        we're supposed to believe that some person waited 3 and half years

        Three and a half years isn’t even that long. There are sites I haven’t posted anything on for longer than that that I still visit. Heck, I was on YouTube for far longer than that before I posted my first comment.

        then found this topic on waning site

        Do you have evidence to back up the claim that this is a waning site?

        of such interest that just had to comment. BALONEY.

        Again, pretty normal. I stayed off Facebook for longer than that until the “bathroom bill” in North Carolina became a hot topic on there and I decided to weigh in.

        This is ASTRO-TURFING.

        Tell me, why would someone “astro-turf” such a silly comment that doesn’t really support the opinion of the article? I don’t think you’ve actually thought this through.

        Seriously, I don’t know why you keep bringing up these “zombie accounts”, but it seems that you’ve been coming up with weaker and weaker arguments lately. One guy had actually made multiple comments on recent articles, one of which you had actually replied to, when you made (another) claim that they hadn’t commented for years. One person was actually a former writer for Techdirt (a poor choice for a sock-puppet account). And now you have someone who was only inactive for less than four years and who is actually taking a contrary position. You were never exactly good at this, but you’re actually getting worse lately. Is something going on with you? You’re not even reaching the incredibly low bar you previously met. Is there something going on IRL with you?

        reply to this | link to this | view in chronology ]

      • icon
        bongo houzi (profile), 24 Mar 2021 @ 7:24pm

        Re: Re: "merk" seen only once before!

        "So yet again, we're supposed to believe that some person waited 3 and half years, then found this topic on waning site of such interest that just had to comment. BALONEY. This is ASTRO-TURFING."
        Astroturfer here: your argument is weak and you should be ashamed.

        reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 25 Mar 2021 @ 8:56am

        Re: Re: "merk" seen only once before!

        "This is ASTRO-TURFING."

        Because normal people often lurk, have a life of their own, or just post on certain sites when directly following a twitter thread or crosslink there?

        No, if it was astro-turfing there'd be clear tells, a dogwhistle, or some packaged content in the message.

        In fact I'm onoly aware of one dead certain case where we found some asshat trying to build multiple accounts and back his own drivel up with a one-man army. You, Baghdad Bob.

        If your sole intent with these "Look, something I think is a Zombie" posts of yours was to remind us all about your past history as a sock-puppeteering troll then you have certainly succeeded.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 26 Mar 2021 @ 10:38am

        Re: Re: "merk" seen only once before!

        I have read this site for years and at some point I created an account but I use it so rarely that I don't remember my login. Unlike some people I don't feel the need to comment unless I have something productive/insightful to add and a lot of the times someone else has made the same point I was going to make. Therefore I post infrequently. Also why would anyone Astroturf here? What would that accomplish? They get to defeat a nobody like you? Why bother?

        reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 24 Mar 2021 @ 6:10am

    "would reasonable people conclude that the statement is one of fact"

    She filed lawsuits parroting the lies, everyone knows its wrong to lie to courts.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 24 Mar 2021 @ 6:37am

      Re:

      She filed lawsuits parroting the lies, everyone knows its wrong to lie to courts.

      It's wrong to lie to anyone. Lying under oath to courts is not just "wrong" but perjury and a punishable felony.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 24 Mar 2021 @ 2:02pm

        Re: Re:

        And lying as a lawyer during a court case is very, very wrong. The bar tolerates a lot of shenanigans, but they swing the hammer fast and hard for that one.

        reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 24 Mar 2021 @ 6:45am

    It was a scapegoat you were giving a mob of people you knew perfectly well were desperate for any excuse, didn't give 2 shits about credibility and would take what you said at face value. Just because the harm didn't come from credibility doesn't mean you didn't cause it knowingly.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    restless94110 (profile), 24 Mar 2021 @ 7:03am

    Schooling

    It is odd that a "journalist" such as yourself should be thinking he is an attorney. To say nothing of thinking he is judge and jury.

    It appears that you are unaware of the fact that a preliminary defense (e.g., the court has no jurisdiction as in other recent cases, etc.) is not in any way the last and the only one.

    Yet, you continue to do this kind of thing, saying "this is her best and only defense" in all theses articles commenting on court cases going on. Your ignorance is comical.

    Powell is lying in wait. Dominion is subject to extensive discovery as the suit proceeds. At which point, Dominion will be slapped, big time. Dominion will be subject to SLAPP laws. Of course, their machines are solely for the commission of election fraud, that evidence has been out for months. That will come out in discovery.

    They'd be wise to back out now while they still can. Powell is being charitable, while at the same time raising Free Speech issues. It is just the first prong in a mutl-prong approach.

    And you, a supposed objective "journalist", fell for it? You aren't a journalist. You are a propagandist. Remember this: It ain't over til it's over. Cool your prejudiced jets.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 24 Mar 2021 @ 7:22am

      Re: Schooling

      "It is odd that a "journalist" such as yourself should be thinking he is an attorney."

      Why would it be odd to correctly identify her profession, other than the fact that you don't know that she's a woman?

      reply to this | link to this | view in chronology ]

      • icon
        crade (profile), 24 Mar 2021 @ 7:36am

        Re: Re: Schooling

        No, no, OP is complaining that the Tim is discussing law. People aren't allowed to discuss law unless they are attorneys and such. A journalist is only ever supposed to research or discuss journalism.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 24 Mar 2021 @ 7:59am

          Re: Re: Re: Schooling

          That makes slightly more sense, but is no less dumb.

          Although I do agree with him - I'm looking very much forward to the discovery phase of this lawsuit and others involving Trump and Rudy. The desperate attempts to save their skins while denying objective reality should be very entertaining.

          reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 24 Mar 2021 @ 8:43am

          Re: Re: Re: Schooling

          "A journalist is only ever supposed to research or discuss journalism."

          Considering Restless94110's long list of previous commentary we can probably specify it further; That he thinks a journalist is only ever supposed to research or discuss journalism, except when the "journalist" is Tucker Carlson who should feel free to weigh in with authority on any issue as long as the alt-right dogwhistle is blowing the refrain.

          Anything else is, to quote old truppenführer Restless 94110, just "Lügenpresse".

          reply to this | link to this | view in chronology ]

          • icon
            crade (profile), 24 Mar 2021 @ 9:01am

            Re: Re: Re: Re: Schooling

            Well you are clear to weigh in as long as no reasonable person would ever think you are telling the truth right? I think I'm getting it now

            reply to this | link to this | view in chronology ]

    • identicon
      AlexisR200, 24 Mar 2021 @ 7:58am

      Re: Schooling

      This commenter is a clear exhibit of the kind of people she was targeting with her lies. The people who argue others can't make opinions unless they are experts but subscribe and defend the political party that consistently decries experts as elitists...

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 24 Mar 2021 @ 8:48am

      Please seek help for your mental health issues, as you obviously have a tenuous grasp on reality.

      reply to this | link to this | view in chronology ]

    • icon
      techflaws (profile), 24 Mar 2021 @ 11:43am

      Re: Schooling

      It is odd that a "journalist" such as yourself should be thinking
      he is an attorney.

      Sidney Powell IS an attorney and look how that turned out.

      reply to this | link to this | view in chronology ]

    • icon
      Gwiz (profile), 24 Mar 2021 @ 12:52pm

      Re: Schooling

      Dominion is subject to extensive discovery as the suit proceeds.

      Do you really think a company would bring a $1.3 million defamination lawsuit and not know that they would be subject to discovery? I really don't think Dominion is worried about that very much.

      Of course, their machines are solely for the commission of election fraud, that evidence has been out for months.

      Huh. I've never seen any evidence to support this. You know that things that somone's brother's barber's cousin might have seen are not really considered evidence, right?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 24 Mar 2021 @ 2:45pm

        Re: Re: Schooling

        Of course, their machines are solely for the commission of election fraud, that evidence has been out for months.

        Is that the same evidence that is 1A-protected opinion and hyperbole, or a fact claim that we apparently can't back up so we just claim that... [see first clause of sentence].

        Always want it both ways at the same time, don't we?

        reply to this | link to this | view in chronology ]

      • identicon
        Canuck, 24 Mar 2021 @ 8:28pm

        Re: Re: Schooling

        $1.3 million? I don't think so...

        reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 25 Mar 2021 @ 12:20am

        Re: Re: Schooling

        "Do you really think a company would bring a $1.3 million defamination lawsuit and not know that they would be subject to discovery? "

        Erm, that is billion with a b - and no, they won't be exposing themselves to discovery if there were any remote chance that Powell's claims were true. They do, however, have a well documented series of contracts they have lost as a direct result of claims by Powell, Guiliani, Trump and other people they are suing, and they seem to have very good chances of winning. I hope they actually win rather than just settle too.

        "Huh. I've never seen any evidence to support this."

        Unless I missed something, the "evidence" has been:

        • It's somehow suspicious that mail-in ballots (which favour Biden because sensible people weren't waiting to queue for hours in the middle of a pandemic) were counted after in-person votes, even though Trump's admin specifically put restrictions to order this to happen in some states.

        • Dominion's founders have some personal relationship to Venezuela, therefore the ghost of Hugo Chavez is directly controlling the election results (though in reality, the Venezuelan company is Smartmatic, who are not related to Dominion as far as anyone can tell)

        • Despite winning the popular vote by 8 million, all those votes are fraudulent somehow.

        I might have missed something here but those seem to be the main claims outside of the usual "we deny your reality and substitute our own" moves IIRC. It should be obvious why such evidence is not worth the paper it's printed on and why Powell should not have gotten as far with her misprinted legal action, as writing those shows clear bad faith on her part.

        reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 25 Mar 2021 @ 9:06am

        Re: Re: Schooling

        "Do you really think a company would bring a $1.3 million defamination lawsuit and not know that they would be subject to discovery?"

        Why not? He still thinks Trump won the election and that George Floyd was a violent junkie who managed to overdose to death by a brilliant chemical engineering feat, just to spite the poor officer who was kneeling on his throat.

        "You know that things that somone's brother's barber's cousin might have seen are not really considered evidence, right?"

        Oh, his sources aren't that good - it all comes from Tucker Carlson and Stormfront.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymnik, 24 Mar 2021 @ 3:09pm

      Re: Schooling

      "Powell is lying in wait."

      Yes, in wait too. And in walk, in run and in any other state, she is lying. Thank you for agreeing with the basic premise of this discussion.

      reply to this | link to this | view in chronology ]

      • icon
        SteveMB (profile), 25 Mar 2021 @ 5:58am

        Re: Re: Schooling

        Sidney's lying there in wait
        Sidney's lying at the gate
        Sidney's lying to the court
        Sidney's lying with a snort
        Please, dear reader, do not butt in
        With the red-flag "cancel" button!

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Mar 2021 @ 4:21pm

      Re: Schooling

      Until when? Do we need to prepare Andromeda for sacrifice first? For all that is unholy, there is no chance of Perry Mason saving the day in the name of truth. It's done. Over. This is now the moment adults start cleaning up the mess left behind.

      reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 24 Mar 2021 @ 5:20pm

      Re: Schooling

      The whole purpose of a journalist is to talk about a variety of topics that they have some knowledge about even if they aren’t professionals or experts in that field. That way, the public can learn more about them.

      Also, the opinion that this is an incredibly weak and astounding argument to make in context is perfectly valid. I’ve seen other lawyers and other legal experts say as much. The fact that this is a preliminary argument makes no difference to the fact that this is a silly and poor argument to use in this particular case.

      Also, Dominion (and SmartMatic, for that matter) have seemed extremely confident that they will win on the facts and actually appear to be looking forward to discovery. Also, it is incredibly rare for a major company or a rich public figure to sue (not pro se) for defamation if discovery has any real chance of exposing damaging information about them. They might still threaten legal action, but they’ll stop short of actually filing a lawsuit. It’s highly unlikely that Dominion’s lawyers would have been willing to go this far without first making sure that discovery won’t make their client’s reputation worse.

      And even if it turns out Sidney Powell is right in her accusations (which she won’t be; several of her statements have already proven to be categorically false), it’s highly unlikely she would get to use Anti-SLAPP laws to do anything here. Even giving her the best likelihood of success, anything favoring her would be too weak to provide the sort of “exceptional” case it would defend, and if it gets that far that discovery is something to worry about, it won’t be the sort of thing that an Anti-SLAPP law would lead to it ending.

      What you’re describing sounds less like a multi-prong approach and more like a throw-everything-at-the-wall-to-see-what-sticks approach.

      reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 24 Mar 2021 @ 5:28pm

      Re: Schooling

      Also, I saw one lawyer say that bringing up this defense—even as a preliminary one—may actually hurt more than it helps. To prove defamation, Dominion has to prove both that the statement was false and that it was made with her either actually knowing it was false or harboring serious doubts that it was true. This defense effectively admits that both are true if the statement is legally a statement of fact. If this defense fails (and it almost certainly will), her case may get a whole lot harder.

      In other words, it’s a huge gamble that is unlikely to succeed and, if it fails, could actually backfire on her.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Mar 2021 @ 6:00am

      Re: Schooling

      Powell is lying in wait.

      Yup. That must be it.

      Haven't you people been made suckers enough already?

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 25 Mar 2021 @ 6:38am

        Re: Re: Schooling

        Sunk cost fallacy, or just general pride, I think. These people have wasted a lot of time, effort and social standing to follow the conspiracy theories, even to the point of destroying relationships with friends and family. When they finally realise they've been conned and that they've sacrificed everything for a lie, some people will double down rather than admit they were wrong, maybe partially because they realise that everyone else has already recognised them as the fools that they are so they bet everything on a final reprieve.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 25 Mar 2021 @ 7:01am

          Re: Re: Re: Schooling

          I agree Paul.

          The only question now is how many reprieves they'll hold out for.

          reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 25 Mar 2021 @ 9:12am

          Re: Re: Re: Schooling

          "Sunk cost fallacy, or just general pride, I think."

          At this point they're stuck in a hard mental choice; Either they're the few enlightened voices in the desert calling for the mass conspiracy to be revealed...or they have to own up to being clownish hopeless losers who have pinned most of their miserable lives on kissing the ringpiece of one incontinent fraud after the other.

          Letting factual reality into their lives at this point would just crush their fragile snowflake egos.

          "...so they bet everything on a final reprieve."

          Like storming the capital and failing to accomplish anything other than a pile of poop on the rotunda floor, for example. I guess that is a strong statement of a sort, at least.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 25 Mar 2021 @ 10:35am

            Re: Re: Re: Re: Schooling

            Like storming the capital and failing to accomplish anything other than a pile of poop on the rotunda floor, for example.

            They did accomplish one thing at least...

            They gave a face to the mental defectives who 'follow' Trump, with a potential cost of their freedom, reputation, business, job, life savings - all for the guy who left them hanging out to dry when it came to pardoning them. It's a bunch or arrogant, short-sighted, self-righteous morons who are finally getting attention, albeit not the type they wanted.

            It's definitely a strong statement about their abilities to be exceptionally good at being stupid, especially when you think that by live-streaming it, they essentially turned themselves and each other in. You'd typically have to watch one of those "World's Dumbest.." shows to get stupid to that degree.

            reply to this | link to this | view in chronology ]

            • icon
              Scary Devil Monastery (profile), 26 Mar 2021 @ 4:57am

              Re: Re: Re: Re: Re: Schooling

              "You'd typically have to watch one of those "World's Dumbest.." shows to get stupid to that degree."

              Yeah, I just watched one of the pundits holding a long and exasperated rant about living in the stupidest of times. It wasn't too long ago if someone like Tucker Carlson spilled his current drivel over the screen people would just assume they'd tuned in to Saturday Night Live by mistake. But no. What was yesterdays exaggerated satirical hyperbole is today's bona fide official policy for the gormless lackwits of the GOP.

              "It's a bunch or arrogant, short-sighted, self-righteous morons who are finally getting attention, albeit not the type they wanted."

              And there are 73 damn million of them in the US. 1 in 3 american voters is either an utter moron or that particular shade of unpleasant who is OK with voting for an open white supremacist and grifter.

              "They gave a face to the mental defectives who 'follow' Trump..."

              And not even this is going to get liberals to give up on bridging the gap to what is a group of people no sane person would want to live with, alas. This isn't going to end unless every asshat unable to look factual reality in the eye is run out of town on a damn rail, all over the US.

              reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 25 Mar 2021 @ 10:09am

      Re: Schooling

      Of course, their machines are solely for the commission of election fraud, that evidence has been out for months.

      So you reject the results from counties that voted for Trump using Dominion machines, right?

      "In other words, if you eliminated every county that used Dominion systems, Biden still got more votes."

      https://www.washingtonpost.com/politics/2020/12/01/swing-state-counties-that-used-domin ion-voting-machines-mostly-voted-trump/

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Mar 2021 @ 7:10am

    But your honour!

    "I can't be guilty of defamation, because I'm guilty of perjury!"

    reply to this | link to this | view in chronology ]

  • identicon
    AlexisR200, 24 Mar 2021 @ 7:48am

    There is a problem with her defense...

    Her argument fails to address the fact that she wasn't targeting reasonable people, it was targeting republicans. Those are people who have embraced Trump's wacko conspiracy "nutjobery" as gospel.

    They are the furthest you can get from a "reasonable member of the public" and she was fully aware of it when she paraded the media and filed that lawsuit. That is textbook defamation.

    I'm looking forward to the judge's opinion on this its going to be interesting if not completely devastating. She just admitted to filing a lawsuit in bad faith, even if the judge were to buy her argument at a minimum she is opening herself to sanctions and even disbarment.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Mar 2021 @ 8:36am

      Re: There is a problem with her defense...

      There are plenty of reasonable republicans, also plenty of good republicans and many, many republicans who have advanced the welfare of humanity.

      Unfortunately, most of them have headstones...

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 24 Mar 2021 @ 8:52am

        Re: Re: There is a problem with her defense...

        "There are plenty of reasonable republicans, also plenty of good republicans and many, many republicans who have advanced the welfare of humanity."

        We can even name the last of them. I may not have agreed with John McCain on very much but he was at least worthy of respectful opposition.

        Today it's pretty safe to say anyone still thinking themselves a republican has already made the choice; that white supremacy, naked authoritarianism, and utter contempt for democratic principles, individual liberty, and constitutional principle alike is not a showstopper for a candidate.

        Which sort of disqualifies them from descriptors such as "reasonable" or "good". Hell, they don't even qualify for "basic dignity" after they came out swinging in defense of the people who shat on the rotunda floor.

        reply to this | link to this | view in chronology ]

        • icon
          Samuel Abram (profile), 24 Mar 2021 @ 10:20am

          Re: Re: Re: There is a problem with her defense...

          We can even name the last of them.

          I can name one: Chris Cox, coauthor of §230.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 24 Mar 2021 @ 11:02am

          Re: Re: Re: There is a problem with her defense...

          You DO know what a "headstone" is, don't you Scary...

          reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 25 Mar 2021 @ 9:18am

            Re: Re: Re: Re: There is a problem with her defense...

            Of course I do. Merely mentioned that we can name the last of the Dodos in the final stages of extinction.

            Someone mentioned Chris Cox. I guess there may be a few holdouts, but do have to ask why they are still hanging around the tarpit any longer.

            reply to this | link to this | view in chronology ]

        • identicon
          David, 24 Mar 2021 @ 5:31pm

          Re: Re: Re: There is a problem with her defense...

          "There are plenty of reasonable republicans, also plenty of good republicans and many, many republicans who have advanced the welfare of humanity."

          We can even name the last of them. I may not have agreed with John McCain on very much but he was at least worthy of respectful opposition.

          Well, among the presidents there's been quite the break after Eisenhower (who had called upon the National Guard to desegregate Southern schools) when the party decided to break with what differentiated it from the Whigs and embraced the racists, previously served by the Democratic Party, when they were left in the cold by LBJ.

          The Republicans never really had the strength afterwards to stop mollycoddling the racists, Lincoln be damned. There's been a bit of back and forth since then, but essentially this is why they felt they had not the integrity where it would make sense to refuse Trump. And boy have they been spiraling downwards since then.

          reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 26 Mar 2021 @ 5:00am

            Re: Re: Re: Re: There is a problem with her defense...

            No, "spiraling" was what they did after Reagan. Then, after GWB and his neocons, they basically did a Major Kong right out of the plane they were riding.

            reply to this | link to this | view in chronology ]

          • icon
            Tanner Andrews (profile), 28 Mar 2021 @ 10:42am

            Re: Re: Re: Re: There is a problem with her defense...

            The Republicans never really had the strength afterwards to stop mollycoddling the racists, Lincoln be damned

            Which Lincoln are you considering? Certainly not Abraham Lincoln of Illinois, who said that he would not allow negroes to marry whites, or serve on juries, or participate in society. This position appears to be consistent in the ``Party of Lincoln'' and the party of Nixon's ``Southern Strategy'', though it may not be entirely consistent with an idealized view of the party.

            The Lincoln of Illinois, who was careful to reject integration, later went on to become president of the U.S.

            reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    N. 'Duke' Orse, 24 Mar 2021 @ 9:38am

    You're all reasonable, right? AND DIDN'T BELIEVE HER!

    Techdirt, you kids actually prove her argument right above.

    Legalisms go both ways.

    And of course you "hide" any dissent: "restless94110" has it right. -- DISCOVERY WILL BE FUN. -- Yet "PaulT" couldn't understand the first sentence!

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 24 Mar 2021 @ 9:45am

      You're all reasonable, right? AND DIDN'T BELIEVE HER!

      That’s because we could tell she was full of shit. But she asked plenty of reasonable people to believe her claims. Some of them were judges in courts of law.

      DISCOVERY WILL BE FUN.

      That assumes she won’t settle before people can start digging around for the skeletons in her closet. “Legalisms go both ways”, remember?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 24 Mar 2021 @ 4:06pm

        Re:

        At this moment, discovery for Dominion will be pretty fun. It's Powell's that's going to be disgusting. If even one associate working with her on this case states Powell knew her case was a farce, she's cooked for everything.

        reply to this | link to this | view in chronology ]

      • icon
        SteveMB (profile), 25 Mar 2021 @ 6:08am

        Re:

        It takes two to settle. I get the distinct impression that Dominion is more interested in salvaging its good name than in the money (which Sidney can't produce more than a tiny fraction of in any case, especially if Sponge Blob Golf Pants sends forth his legal beagles to squelch her efforts to work his side of Grift Street).

        At best, any settlement would require her to undertake the most grueling apology tour since Henry IV's submission to Gregory VII at Canossa.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 25 Mar 2021 @ 6:41am

          Re: Re:

          "I get the distinct impression that Dominion is more interested in salvaging its good name than in the money"

          I certainly hope so. There's no way that Powell has a fraction of the damages sought, and any settlement would be taken by some of the cultists as an admission that they would have lost in court. I hope this goes to court, goes through a full discovery process, and then everyone subject to these lawsuits are prosecuted to the limits of the law for the damage they have brought upon the entire democratic process.

          reply to this | link to this | view in chronology ]

    • identicon
      Baron von Robber, 24 Mar 2021 @ 10:30am

      Re: You're all reasonable, right? AND DIDN'T BELIEVE HER!

      "DISCOVERY WILL BE FUN"

      Search results "Pizza pedophiles": none found
      Search results "JFK killer": none found
      Search results "Kraken": none found
      Search results "The Storm": none found

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 25 Mar 2021 @ 1:54am

        Re: Re:

        Search results "Hilary Clinton arrest": none found
        Search results "Mexican wall Bill": none found
        Search results "death of Section 230 via Trump": none found
        Search results "out_of_the_blue not being an ignorant motherfucker": none found

        reply to this | link to this | view in chronology ]

      • icon
        SteveMB (profile), 25 Mar 2021 @ 6:12am

        Re: Re: You're all reasonable, right? AND DIDN'T BELIEVE HER!

        Search results "The Storm": none found

        Every time this bit of QAnonsense gets referenced, the "I summon the full power of the storm!" line from the 90s X-Men animated series ear-worms me again.

        reply to this | link to this | view in chronology ]

    • icon
      crade (profile), 24 Mar 2021 @ 11:03am

      Re: You're all reasonable, right? AND DIDN'T BELIEVE HER!

      But thats the funny part.. She is arguing that people who say she is full of shit up to her eyebrows are completely right, she shouldn't be taken seriously and basically anyone who believes what she says is a moron

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 25 Mar 2021 @ 12:28am

        Re: Re: You're all reasonable, right? AND DIDN'T BELIEVE HER!

        Well, she's not wrong. But, it seems that at least a couple of people have taken her seriously enough to cancel Dominion contracts based on what she said, and that would seem to be a material problem for her even if she can prove she was just filing documents as a joke (which should hopefully bring up other problems for her).

        reply to this | link to this | view in chronology ]

        • icon
          crade (profile), 25 Mar 2021 @ 12:31pm

          Re: Re: Re: You're all reasonable, right? AND DIDN'T BELIEVE HER

          It's not because she was taken seriously, it because she was intentionally reaffirming existing obsessions. It's not that she was credible or convincing it's that she was preaching to the choir. No one influenced by what she said gave a shit if what she said was true or not, they aren't interested in truth they just think it helps them "win" if they agree

          reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 25 Mar 2021 @ 12:26am

      Re: You're all reasonable, right? AND DIDN'T BELIEVE HER!

      "DISCOVERY WILL BE FUN."

      It will be fun - the whole thing has been high comedy value so far, but while we were laughing at Guiliani's garden centre announcements and head leaking, random bimbos pretending to have secret information and the endless fruitless promises of Krakens turning up, there was always the fear of getting a peaceful transition of power going awry. Now that your insurrection has failed are competent adults are again in charge, I very much look forward to the new comedy these people provide to us without risk of it interfering with grown up matters.

      "Yet "PaulT" couldn't understand the first sentence!"

      Yeah, I don't speak fluent batshit, and I made an assumption based on what the sentence would have said if a sane person wrote it. I'll try to remember to turn on my raving idiot to English translator next time.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Mar 2021 @ 6:03am

      Re: You're all reasonable, right? AND DIDN'T BELIEVE HER!

      Legalisms go both ways.

      So does discovery...

      reply to this | link to this | view in chronology ]

  • identicon
    MightyMetricBatman, 24 Mar 2021 @ 12:37pm

    Not surprisingly, there is also a defense of wrong jurisdiction and that the correct jurisdiction is Texas. I imagine there are multiple reasons, starting with these two.

    1) Try to use Texas' robust Anti-SLAPP.

    2) More likely to be a politically compassionate jury.

    The former I find unlikely to be useful considering most federal courts have rejected local Anti-SLAPPs as applicable to their courts except the 9th Circuit.

    reply to this | link to this | view in chronology ]

  • icon
    bhull242 (profile), 24 Mar 2021 @ 3:07pm

    Yeah, I don’t think she thought this one through. While statements made in court or in court filings can’t form the basis of a defamation lawsuit due to the litigation privilege, it can be used as evidence in support of a defamation lawsuit.

    For example, if a lawyer is sued for public statements she made to the media where she is speaking as a lawyer and she also made the same claims in a court of law under penalty of perjury, the fact that she made those exact same (or substantially similar) claims in actual litigation can be used as evidence that one should take them a serious statements of fact rather than exaggeration, hyperbole, or puffery. If she had just said them in court, she would be protected. Had she not made those claims in court, maybe she could argue that they were obvious exaggerations or hyperbole, though that would be quite tough given she was still speaking as a lawyer about her own litigation.

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 24 Mar 2021 @ 3:57pm

    I watched a clip from one of the news shows where they talked to a lawyer and it was his opinion that this defense will hurt Powell more than it will help her. He said that to prove defamation, it has to be shown that the defendant made false statements and that they knew those statements were false. Powell has admitted to both in her defense. Plus the whole lying in court filings thing...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Mar 2021 @ 6:19pm

      Re:

      I don't think you have to establish that someone knew a statement was false to prove defamation, only that not knowing was negligent - i.e. anyone doing reasonable research would find out that the statement was false.

      reply to this | link to this | view in chronology ]

      • icon
        Tanner Andrews (profile), 28 Mar 2021 @ 10:54am

        Re: Re:

        I don't think you have to establish that someone knew a statement was false to prove defamation, only that not knowing was negligent

        That's exactly wrong. For public figure defamation, negligence is not sufficient. You have to show what we sometimes call Times v. Sullivan malice: either knowledge of falsehood or reckless disregard for likelihood of falsehood. You might think of that as gross negligence rather than standard negligence.

        See, e.g., NY Times v. Lester B. Sullivan, 376 U.S. 254 (1964).

        reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 24 Mar 2021 @ 5:44pm

    So,

    A Fully knowledgeable person, declaring SOMETHING is FACT, and Blatantly LYING.

    reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 24 Mar 2021 @ 5:45pm

      Re: So,

      Is this SOME way to Show that Republicans have EVERY RIGHT TO BE IDIOTS, Because they dont read anything FOR A PURPOSE?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 24 Mar 2021 @ 6:51pm

        Re: Re: So,

        We used to keep places for them. Then Ronnie decided closing the funny farms would get his party more votes. It worked, but not in the way he envisioned.

        reply to this | link to this | view in chronology ]


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