Dear listeners,
Welcome to another week of Serious Trouble!
We have talked a lot on this show (and even more on our predecessor show, All The Presidents’ Lawyers) about the reasons defamation litigation tends to be unavailing. Many offending statements don’t meet the definition of defamation — they may be opinions, or insults, or false statements against a public figure made without actual malice, or even true factual statements you just didn’t like hearing. A lawsuit may only draw more attention to the damaging statements. Litigation can take forever, and even if you win, a court may not award a lot of damages, or the defendant may not be able to pay a substantial judgment.
This week’s episode is mostly a deep dive into defamation lawsuits brought against Fox News (and related parties) by two voting technology companies, Dominion Voting Systems and Smartmatic. This litigation looks different from most defamation litigation. Smartmatic and Dominion are large companies whose business has likely been impaired by the lies told about them. Those lies were broadcast extremely widely — no need to worry about the Streisand effect. One of the entities that shared many of the lies, Fox News, is a very deep pocket. And Fox has good reason to worry it could end up facing some very large judgments.
Ken and I took a look at action in the lawsuits brought by each of the companies. Smartmatic — whose voting equipment wasn’t even used in any swing states — got a favorable appeal ruling that has reinstated some of the claims it has brought against personalities who appeared on Fox News. And Dominion is seeking summary judgment — saying its case against Fox is so strong, and based on such undisputed facts, it should win without even going to trial.
Ken explained how this is a power move: usually, it’s defendants who seek summary judgment, and it’s a real uphill climb for a plaintiff. But even if you don’t win the motion, it can be useful for the way it forces the defendant to lay out the substance of its case before going to trial. And we discussed how the evidence raised in Dominion’s motion — most famously, internal communications among Fox News talent, producers and executives, in which they acknowledged how batshit insane the claims going out over their air were — plays an important PR role for Dominion, and how it’s also likely to matter in the legal case.
We also have an update on Alec Baldwin, who won’t face that firearms enhancement that prosecutors wanted to use to add five years to his potential sentence for the Rust shooting. (Appellate public defender Caitlin Smith, who wrote into us several weeks ago about why the enhancement was invalid, has been proved right.) And we talked about how Sam Bankman-Fried got into a position where the judge presiding over his case seems to like him less than the prosecutors do.
We hope you enjoy the episode.
Josh
Episode links and references
Click here for a transcript of this episode.
Variety: ‘Rust’ Prosecutors Drop Five-Year Gun Enhancement Against Alec Baldwin
Dominion’s brief in support of its motion for summary judgment against Fox News and Fox Corporation
(Hi from Ken’s office earlier today.)
Bad News for Fox News