Silicon Investor (SI) -- The First Internet Community

STOCKTALK

We've detected that you're using an ad content blocking browser plug-in or feature. Ads provide a critical source of revenue to the continued operation of Silicon Investor. We ask that you disable ad blocking while on Silicon Investor in the best interests of our community. If you are not using an ad blocker but are still receiving this message, make sure your browser's tracking protection is set to the 'standard' level.

Non-Tech : Franklin, Andrews, Kramer & Edelstein -- Ignore unavailable to you. Want to Upgrade?

To: scion who wrote (12713)	2/22/2021 11:45:52 AM
From: scion	Read Replies (1) \| Respond to of 12881

Lawsuits arrive for networks and lawyers who backed Donald Trump Dominion and Smartmatic allege that conspiracy theories involving their products are defamatory Feb 17th 2021 NEW YORK economist.com DURING HIS first campaign for the American presidency in 2016, Donald Trump said he wanted to “open up our libel laws” to make suing news outlets easier. Those plans did not materialise. But in the aftermath of Mr Trump’s extraordinary challenges to his re-election loss and amid his second impeachment trial, defamation law is back in the headlines. Dominion Voting Systems and Smartmatic, both voting-technology companies, have sued or are gearing up to sue three right-wing cable news networks, some of their hosts and two of Mr Trump’s lawyers for claiming their devices were used to steal the election for Joe Biden. Such claims are a central element of the false voter-fraud theory that fuelled the storming of the Capitol on January 6th, resulting in the deaths of five people. Dominion has launched a pair of $1.3bn lawsuits against Rudy Giuliani and Sidney Powell, Mr Trump’s legal advisers—with more to come. On February 4th Smartmatic filed its own 276-page suit against Fox and three of its commentators (Maria Bartiromo, Lou Dobbs and Jeanine Pirro), as well as Mr Giuliani and Ms Powell, for $2.7bn. Whether potentially defamatory statements are written (“libel”) or spoken (“slander”), the aggrieved party has to clear a high bar in America, where the constitution’s First Amendment protects free speech and freedom of the press. In Britain defendants must usually show their utterances were true or amounted to fair comment. In America it is plaintiffs who have the burden of proof; they lose unless they can prove the defendant’s statements were false but presented as claims of fact. Establishing defamation also means showing the speaker was negligent and damaged the plaintiff’s reputation. Many defamation cases founder because the statements concerned turn out to be protected expressions of opinion or hyperbole rather than factual claims. Others fail because of uncertainty about the truth of the disputed statements. A prominent First Amendment lawyer who says he has “a natural antipathy towards libel suits” nevertheless thinks Dominion and Smartmatic have “very strong” cases because the claims in question are so clearly presented as factual—and so clearly false. The Smartmatic lawsuit cites dozens of allegedly defamatory statements. On November 13th Mr Giuliani said on Fox Business that Smartmatic was “founded as a company to fix elections” with technology that is “extremely hackable”. Two days later Ms Powell told Ms Bartiromo on Fox that her client “won by not just hundreds of thousands...but by millions of votes” that had been “shifted” to Mr Biden’s column by Dominion’s and Smartmatic’s software which, she asserted, “was designed to rig elections”. She also suggested that Dominion had ties to Hugo Chávez, a Venezuelan dictator who died in 2013. On November 21st Mr Dobbs, host of the top-rated Fox Business show that was cancelled a day after Smartmatic filed its suit, said the companies had waged a “cyber-attack on our election”. None of these allegations has been corroborated. But Dominion and Smartmatic say that, however baseless, the charges have severely damaged their reputations and are costing them business worldwide. Dominion says that Ms Powell’s claims are “demonstrably false”. The company was not “created in Venezuela to rig elections for a now-deceased Venezuelan dictator” but “founded in Toronto for the purpose of creating a fully auditable paper-based vote system that would empower people with disabilities to vote independently on verifiable paper ballots”. The grandiose accusations against Smartmatic are particularly curious, because the company had no role in America’s recent election other than to assist with voting technology in Los Angeles County—where vote totals were never in dispute. “The earth is round,” Smartmatic’s complaint begins. “The election was not stolen, rigged or fixed. These are facts. They are demonstrable and irrefutable.” Roberta Kaplan, a lawyer representing E. Jean Carroll in a defamation case against the 45th president, believes the lawsuits are likely to overcome the usual hurdles. She thinks Smartmatic’s claims may be harder to pin on Ms Pirro and Ms Bartriromo, though, because they largely handed the microphone to guests who made the outlandish claims and were careful not to voice the accusations themselves. Mr Dobbs was less circumspect, so he and therefore Fox may be, in Ms Kaplan’s eyes, on the hook, along with Mr Giuliani and Ms Powell. On February 8th Fox’s lawyer, Paul Clement, who was solicitor-general under George W. Bush, filed a motion to dismiss Smartmatic’s suit. (Similar filings on behalf of the hosts came on February 12th.) The network and its hosts, Mr Clement argued, were simply covering a major news event. “An attempt by a sitting president to challenge the result of an election,” he wrote, “is objectively newsworthy.” If hosts merely allow guests to state claims, without amplifying the ideas in their own words, that is a powerful defence against defamation. But Mr Clement’s motion did not attempt to refute each allegation in Smartmatic’s complaint, perhaps because some statements can easily be defended while others cannot—and Fox has legal exposure if any of its employees’ comments prove defamatory. Another point of contention is whether the voting companies are “public figures”, about whom American defamation law enforces a more rigorous standard that would make their claims harder to sustain. If so judged, the companies must prove that Fox’s hosts and Mr Trump’s lawyers acted with what the law terms “actual malice”, meaning that they either knew the statements were false or the speakers showed “reckless disregard” for the truth, as opposed to simply negligence. Mr Clement argues Smartmatic is “clearly a public figure” and should have to clear the higher bar. Ms Kaplan disagrees: dragging an otherwise obscure company into a cable-news controversy does not transform it into even a “limited-purpose public figure”, she says, especially since it had such a minor role in the 2020 election. The Supreme Court has held that only individuals who “have thrust themselves to the forefront of particular controversies” count as limited-purpose public figures. But even if a judge sees Smartmatic as a public figure, the company may have enough evidence to proceed against Fox. And it may have the strongest case against Mr Giuliani and Ms Powell, as Mr Clement’s motion seems to acknowledge: “If those surrogates fabricated evidence or told lies with actual malice, then a defamation action may lie against them.” Mr Trump’s lawyers may face the most legal jeopardy, but the networks seem aware of their own vulnerability, too. After Dominion and Smartmatic warned Newsmax they might sue, its anchors read canned disclaimers on air and cut off Mike Lindell, a prominent businessman who advised Mr Trump late in his presidency, as he repeated claims of election theft. “We don’t want to relitigate the allegations that you’re making, Mike,” said Bob Sellers, the anchor, during the chaotic exchange, before walking off the set in mid-interview. OANN has been alternately confrontational and conciliatory as lawsuits develop. In December it responded to Dominion’s request to preserve documents for a possible legal action by demanding that Dominion preserve documents, too, so OANN could attempt to prove the company engaged in election fraud. But when the network aired a film by Mr Lindell repeating his allegations, it prefaced the broadcast with a lengthy disclaimer. The First Amendment grants plenty of room for robust debate; plaintiffs seeking damages for defamatory statements face an appropriately steep climb. On the rare occasions when libel or slander claims stick, the defamed entity is typically the only compensated party. These voting-technology suits may offer a wider public benefit: curbing the spread of disinformation that destabilises democracy itself. economist.com

To: scion who wrote (12713)	2/23/2021 8:22:49 PM
From: scion	Respond to of 12881

MyPillow CEO Turned the Big Lie into Big Bucks, Lawsuit Alleges Dominion suit claims Mike Lindell paid pro-Trump outlets to air lies and reel in gullible customers for his company. by KIMBERLY WEHLE FEBRUARY 23, 2021 5:30 AM thebulwark.com In the latest legal fallout from the post-election debacle, Dominion Voting Systems filed a lawsuit in federal court on Monday against Michael Lindell, the founder and CEO of MyPillow. The lawsuit claims that Lindell engaged in a defamatory marketing campaign against the election-technology company by spending months—including after Joe Biden was inaugurated—peddling the “Big Lie” about the election being stolen, and falsely accusing Dominion of manipulating algorithms to steal votes from former President Donald Trump. Dominion filed separate suits in the same court last month against Trump lawyers Sidney Powell and Rudy Giuliani, while its competitor, Smartmatic, filed a suit in New York’s state supreme court earlier this month against Fox News and three of its anchors. One obvious hint that these suits—which each seek damages of over $1 billion—have merit is the way that some Trump-friendly TV outlets have, after receiving legal threats, aired incredibly awkward retractions and disclaimers regarding claims they had broadcast about the two companies. The suit filed on Monday tells the tale of a twenty-first-century snake-oil salesman who capitalized on Trump’s pathological need to pretend he won the 2020 election in order to sell pillows to gullible Trump supporters—victims of yet another scam at the behest of their dear leader. The story reads like a slimy mix of greed, lies, and false victimhood—a fitting culmination of the failed presidency of Donald J. Trump, himself a reality TV star who faked a successful career in business all the way to the White House. The big losers here, yet again, are the regular Americans who forked over money to Lindell, whom one consumer called “a hero, he’s a hardworking brilliant American Patriot who has risked everything and made incredible sacrifices for the sake of this country.” Another supporter wrote: “Made an executive decision today. IF another stimulus check is sent out, no matter how much it is, it’s going to buy me a MyPillow Mattress Topper! Going to use some of that money to support Mike!” Among a litany of public statements against Dominion, the complaint alleges that Lindell knowingly lied on air about having “raw data analytics” that would demonstrate “a cyber footprint from inside [Dominion’s] machines” that was “going to show that Donald Trump won.” Worse, Lindell complained that he was being attacked by the left for speaking the truth, a lie-upon-a-lie that duped Trump supporters into buying pillows as an act of compassion, retaliation, and/or patriotism. We all know why this is bad stuff. Even Mitch McConnell has acknowledged that the Big Lie harmed American democracy. But Dominion’s lawsuit makes clear that the Big Lie is also a cash cow for scam artists—after all, in the eight short weeks following the November 3 election, it moved $255.4 million from the bank accounts of Trump supporters into the coffers of the Trump campaign and the Republican party. For this lurid reason, the Big Lie is not going away anytime soon. According to the complaint, Lindell’s scam involved payoffs to conservative news outlets reliant on his advertising dollars in exchange for airtime during the election season, spurring a 30 to 40 percent hike in sales. As a cable news “talking head,” Lindell plugged his pillows under the pretense that he had the dirt on Dominion that could produce a second Trump term—offering promo codes like “QAnon,” “FightforTrump,” “45,” and “Proof” to lure consumers into snagging up to 66 percent savings on his merchandise. The New York Times describes Lindell is “a former crack cocaine and gambling addict” who, according to Dominion’s lawyers, accumulated a net worth of over $300 million using exceptional math skills honed during decades as a “professional card counter”: While hunkered down at the blackjack table, he would feign a drunken stupor while hundreds of different number combinations ran through his mind like a “computerized algorithm,” enabling Lindell to calculate his bets based on the patterns he observed coming from the dealer’s hand. Someone with such skills—a self-professed “numbers guy”—is too smart, the lawsuit says, to be confused about what really happened in the election. Since founding MyPillow in 2004, Lindell has been the subject of multiple legal actions relating to alleged false and misleading claims, including those he personally pushed in informercials to sell pillows that “would help people suffering from fibromyalgia, insomnia, migraines and headaches, sleep apnea, snoring, TMJ, and restless leg syndrome.” MyPillow has paid over a million dollars in civil penalties over the course of several years, prompting the Better Business Bureau to revoke its accreditation and lower its ratings score to an “F” based on consumer complaints. Undeterred, Fox News’s Tucker Carlson, after introducing Lindell on his January 26, 2021 show as “the CEO of MyPillow,” let Lindell spout off: Lindell: Dominion went on TV and said they were going to go after Mike Lindell. Well, they did. They hired hit groups and bots and trolls, went after all my vendors, all these box stores to cancel me out. . . . I’ve been all in, trying to find the machine fraud—and we found it. We have all the evidence. . . . I have the evidence. Needless to say, Lindell never actually produced on Fox the evidence that he claimed to have. The same day, Lindell was banned from Twitter. Newsmax followed Fox’s lead and, according to the complaint, “bowed to the pressure and gave its financial backer a global platform to repeat the Big Lie that Newsmax knew was false.” In February, Lindell produced a “docu-movie” called ABSOLUTE PROOF, releasing it first on his own website (with links to MyPillow’s website and a promo code, naturally) and then on the OAN network and the website of the Right Side Broadcasting Network. The complaint includes two counts—defamation and deceptive trade practices—and seeks nearly $652,000,000 in compensatory damages based on Dominion’s alleged financial loses and lost business due to Lindell’s claims, and the same amount in punitive damages. The defense to defamation is truth. Dominion painstakingly picks apart the “raw data analytics” that presumably will be raised in Lindell’s defense, claiming that Lindell’s data was pulled from “The American Report conspiracy theory blog,” which was created by Trump campaign donor “and retired homemaker” Mary Fanning Kirchhoefer. Yet as Dominion’s lawyers explain, Bipartisan election officials, judges, 59 election security experts, Attorney General Bill Barr, Trump appointee Chris Krebs, Georgia’s Republican Governor Brian Kemp, Georgia’s Republican Secretary of State Brad Raffensperger, Colorado’s former Republican Secretary of State Wayne Williams, and others have rebutted Lindell’s false claims about Dominion. Lindell’s is an impossible defense to win on the facts. In his January 26 appearance on Tucker Carlson’s show, Lindell said “I dare Dominion, just sue me because then it”—his purported evidence of election fraud—“would get out faster.” Now that he actually has been sued, Lindell hasn’t let up. In typical Trumpian fashion, he told the New York Times that “I’m very happy that they’ve done this.” Apparently, shelling out damages for duping consumers is just part of the cost of doing business in the pillow industry. No doubt Lindell is contented by the dollar signs that go along with Goebbels’s maxim often paraphrased as “If you tell a big lie and tell it frequently enough, it will be believed.” Unless and until the criminal justice system kicks in to impose real consequences, the Big Lie will continue to inflict widespread harm and suffering. Image of Kimberly Wehle Kimberly Wehle Kimberly Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her latest book is What You Need to Know About Voting—and Why (HarperCollins). Twitter: @kimwehle. thebulwark.com