Remember Sydney Powell? Name ring a bell? It already seems so long ago, doesn’t it? Well, in case you’ve already consigned all of your relevant neural files to the memory hole (which would have been the healthy choice, actually) Ms. Powell is a lawyer who was part of Trump’s “kraken” litigation and public advocacy dream team. She was front and center with Rudy Giuliani when the strategy was to endorse and amplify every conspiracy theory they could dredge out of the right wing fever swamps, as part of their campaign to convince everybody that Biden was a cheat whose minions had stolen the election from Trump. Among her multiple scattershot claims was the allegation that Dominion Voting Systems, who supplied vote tabulation machinery to some jurisdictions, had swung the election to Biden by programming their equipment to flip millions of votes (millions, mind you) to the Democrats. Why? Well, it had something to do with Venezuela, its current dictator, Nikolas Maduro, its former dictator, (the now long-deceased) Hugo Chavez, Communism in general, and of course George Soros and the Clinton Foundation, some or all of whom were variously either outright owners of Dominion, or in cahoots behind the scenes, presumably as part of an international cabal whose full membership might never be known, but whose tentacles stretched into every corner of the American political establishment. Ooops almost forgot – Antifa. They were in there too.
These rather floridly implausible contentions were never advanced in the 60 or so lawsuits that were launched across multiple jurisdictions as part of the formal, legal effort to overturn the election results, for the very good reason that courts require evidence, which must be based in facts, which in turn need to be derived from objective reality as best we can measure it on the ground back here on planet Earth. They didn’t have any, and couldn’t just make a bunch of stuff up, because deliberate and outright lying to the court can get you into all sorts of trouble. Especially if you’re a lawyer. Come to think of it, that’s probably why they lost all 60 lawsuits. In the court of public opinion, however, Ms. Powell faced no such constraints, or so she thought anyway, so she spun a yarn that grew ever more outrageously, indeed hilariously, fanciful, dragging poor Dominion’s name through the mud in a series of over-the-top pressers at which the case was made with what eventually verged on hysterical enthusiasm. A couple of times, a flop-sweating Rudy looked as if he might actually be melting.
MAGAWorld ate it up. They believed it. They still believe it. And because those folks are such intractably fervent true believers, when they believe something, the usual death threats and harassment began to flow Dominion’s way, all the textbook trolling, with employees fearing for their lives, and their bosses fearing for their brand’s and their own reputations, and maybe even for their plant and machinery, since we know that planting bombs isn’t outside the repertoire of the most resolutely vehement hard core of the MAGAWorld true believers. Meanwhile, just from sheer repetition, the allegations gained a fair bit of traction with the wider public. Things were thus starting to look bad for a company that not only begins each day hoping that most of its staff will survive to greet the next morning (as admittedly not all do, but the Dominion people seem to), but also aspires to market its products on the basis of their efficacy in ensuring the integrity of free and fair elections.
So Dominion sued Sydney Powell’s ass off. The claim is for $1.3 billion, that’s “billion” with a “b”, in defamation damages.
Ah, but Sydney has a defence, based in the legal doctrine of defamation, which provides a perhaps surprising loophole for craven bullshit artists to wriggle through. From her filing with the federal district court in the District of Columbia:
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.
She didn’t mean that, Your Honour! She was just goofin’ around!
Reading that stirred a vague memory. Wait, I’ve heard this before, thought I. Wasn’t that more or less what Alex Jones pleaded in some case or other he was involved in? A couple of quick Google searches, and sure enough, it was during the custody battle for his kids. In arguing she should get the children, his ex-wife cited his obvious insanity, as evidenced by his many podcasts and on-line productions, in which he screamed – literally, screamed – at the top of his lungs about everything from the government trying to turn frogs into homosexuals, to Robert Mueller being a Satanist pedophile, to the massacre at Sandy Hook being a hoax. Plus, she said, not unreasonably, “He’s not a stable person. He says he wants to break Alec Baldwin’s neck. He wants J-Lo to get raped.” The counter argument? He’s just playing a character, said his lawyers. It’s an act. He doesn’t mean that. He’s a performance artist playing a role, is all. Look, would you judge the suitability of a caregiver based on the way he played the Joker in a Batman movie? All that loony-bin conspiracy stuff was just him goofin’ around.
No kidding. That’s what his lawyer said, including the stuff about Batman and the Joker. Perhaps that was even a good argument within the context of a custody battle – I can’t recall how it turned out – but if true, then it’s rather a pity that his good buddy and frequent call-in guest, Donald Trump, endorsed and repeated virtually everything Jones bellowed while he was merely on stage, performing.
For Jones, the just-goofin-around gambit has uses beyond family law, since he’s being sued as well, by the parents of the slain children of Sandy Hook, who’re seeking some redress for the considerable grief, mental suffering, harassment, and death threats flowing from Jones’s strident, continually repeated claims that it was all a lie, a “false flag” operation in which the corpses were fake and the grieving parents were “crisis actors”. It’s not clear from the press reports whether this is an action for defamation, or intentional infliction of emotional distress, but the defence they’ve offered is the same:
It’s not his fault that the dingbats in the red hat brigade bought the act, Your Honour! Nobody thought they would! That’s ‘cause they’d have to have been crazy to fall for it!
You might expect such an argument to fail, but the thing is it sometimes works. In fact, it’s come to be known as the “Fox News Defence”, a term arising from a defamation lawsuit launched by Karen McDougal, one of the women Trump had paid off to keep mum about yet another of his infidelities. Donald threw $150,000 at her to shut her up. Tucker Carlson stated on air that the arrangement “sounds like a classic case of extortion”. Wasn’t that defamation? No, ruled the judge, because:
Fox persuasively argues . . . that given Mr. Carlson’s reputation, any reasonable viewer arrives with an appropriate amount of skepticism about the statements he makes…[w]hether the Court frames Mr. Carlson’s statements as exaggeration, non-literal commentary, or simply bloviating for his audience, the conclusion remains the same—the statements are not actionable.
Translation: Sorry, but you don’t have a case, since like the legal eagles for Fox said, what reasonable person would ever believe anything that comes out of Tucker Carlson’s silly pie hole?*
I bet you’re thinking, O.K., fine, but what if the effluent of Tucker’s silly pie hole was, nevertheless, believed? What if the audience is already known not to meet the common law standard of reasonableness? Why are we even talking about hypothetical reasonable people when the MAGA Monsters transfixed by Tucker Carlson are pretty much a raging irrational fire upon which he’s happily and quite deliberately tossing gasoline? That doesn’t count too?
I’m not a lawyer – wait, yes I am – but anyway, one thing I learned from watching Thelma and Louise is that the law is some tricky shit. Play around with something like the legal definition of defamation, trying to plug the sometimes aggravating loopholes, and before you know it you’re trenching all over free speech, and suing stand-up comics (like Trump did, when Bill Maher offered Trump a million bucks if he could prove his father wasn’t a literal orangutan – though actually, that wasn’t a defamation claim. Trump produced a birth certificate and demanded his million dollars, so that’s more like contract law). You’re also likely to establish legal burdens of proof which, practically speaking, can’t usually be met, or take you in circles, or themselves defeat the purpose (who says Tucker actually knew he’d be believed? How do you prove that? How about “ought to have known”, then? But why ought he have known, when no reasonable person would believe him? And on and on…)
Still. As it stands, bad actors are getting away with spewing an increasingly toxic stream of pants-on-fire lies, spreading dangerous falsehoods which are causing considerable damage not just to individuals, but to the wavering faith of the general public in the fairness and validity of elections, without which democracy can’t survive. They’re doing it on purpose, and they do know, you bet they do, that the assorted gulli-bulls out there are going to believe them, uncritically and absolutely. They don’t care. It’s heinous. Yet they skate, based on what seem more and more to be quaint and obsolete notions like the common law’s “reasonable person”. I’m not really sure that Alex Jones is going to get away with his Sandy Hook calumnies, or that Sydney Powell is going to prove bulletproof despite the horrendous nonsense she shovelled into the public square, but both of them could. Based on the law as best I can understand it, it seems to me that they surely could. It’s hard not to be both saddened and angered by that.
Meanwhile, the lies have a life of their own. It doesn’t much matter that the purveyors are defending themselves in court by admitting none of it was true, but that’s O.K. because nobody in her right frame of mind would ever have fallen for it anyway. Out there in MAGAWorld, such stuff is just fake news.
*This isn’t just an issue with American law. For example, in the 2011 decision of the Ontario Divisional Court in Martinek v. Dojc, 2011 ONSC 3795 (CanLII), the ruling states that “the court may consider whether the words were reasonably capable of being defamatory in the view of reasonable members of the class of persons to whom the publication was directed. Courts will consider the context of the audience and may adopt a ‘common sense’ perspective.”