In the aftermath of last year’s defeat at the polls, Donald Trump had difficulty finding reputable and competent lawyers to assist him in attempting to persuade the public, judges, and other government officials of his Big Lie—that he was the rightful winner of the 2020 presidential election. One lawyer who did represent Trump, first officially and then as a freelancer, was Sidney Powell, who was at one time a respected federal prosecutor. By November 2020, however, it was clear that Powell was no longer in top form. Both in and out of court, she made wild and demonstrably false claims.
Some of those claims concerned Dominion Voting Systems, a Denver-based corporation that makes machines that count paper ballots. For example, “Powell falsely claimed that Dominion had rigged the election, that Dominion was created in Venezuela to rig elections for Hugo Chávez, and that Dominion bribed Georgia officials for a no-bid contract.” That quotation comes from the complaint in the defamation lawsuit Dominion filed against Powell in January of this year. The 124-page document lays out in detail how Powell repeatedly made provably false claims about Dominion. It also describes some of the harm that resulted to Dominion employees—some of whom received death threats from Trump supporters who heard and believed Powell’s lies—as well as to the company itself. The complaint seeks over $650 million in compensatory damages and an equal amount in punitive damages.
Last week, Powell’s lawyers filed a motion to dismiss that was widely mocked because it argues that Powell’s statements about Dominion were so unbelievable that they could not constitute defamation. To the uninitiated at least, that sounds more like an admission of culpability than a defense.
Powell’s motion to dismiss the case should fail, but the argument presented in her brief is more subtle than is generally acknowledged. The operative principles of law in this area do indeed sometimes provide a defense to defamation liability for lies that are so preposterous that no one can take them seriously. So too, the law provides sweeping protection for statements of political opinion, as Powell’s brief also contends. The core difficulty for Powell is that neither of those principles has much to do with her case.
The First Amendment
Libel is written defamation. Slander is spoken defamation. Both are governed by tort law, but because they concern expression, the First Amendment limits their scope. Thus, in New York Times Co. v. Sullivan, the Supreme Court ruled that a public official plaintiff in a defamation lawsuit must prove more than that the defendant made a false statement that damaged the plaintiff’s reputation—the common-law definition. Public officials must prove “actual malice,” a standard requiring at least reckless disregard for the truth. Cases following Times v. Sullivan extended this rule to cover public figures as well as public officials.
Powell’s motion to dismiss contends that Dominion is the sort of public figure to which the actual-malice test applies. That contention is more than a little bit ironic if not hypocritical.
After all, Donald Trump has for years advocated “opening up” the libel laws, by which he means eroding the protection against defamation liability provided by Times v. Sullivan. Meanwhile, earlier this month conservative D.C. Circuit Judge Laurence Silberman echoed conservative Supreme Court Justice Clarence Thomas’s call to overrule Times v. Sullivan. Yet even though the President whose lies she amplified and elite conservative jurists want to discard Times v. Sullivan, Powell invokes it in defense of her service of Trump.
Of course, there’s no law against hypocrisy and, anyway, there’s no good reason to discard Times v. Sullivan; therefore, so long as that precedent remains on the books, Powell is as entitled as anyone to rely on it. The more important question here is why she and her lawyers think it aids her case.
For one thing, it’s not entirely clear that Dominion is a public figure. Unlike corporations that are household names, few people had even heard of Dominion before Powell and her ilk made their wild claims about it. In any event, whether Dominion counts as a public figure for Times v. Sullivan purposes makes no difference to the outcome. A regular plaintiff can prevail in a defamation action by showing that the defendant made a reputation-damaging false statement. A public-figure (or public-official) plaintiff must show more, namely that the defendant knew the statement was false or was reckless with respect to its truth. Here, Powell’s motion to dismiss admits—indeed celebrates—that she knew what she was saying about Dominion was false. Her chief defense is that her statements were so outlandish and obviously false that no reasonable person could understand Powell to be making factual statements at all.
As we shall see, that defense fails, but the crucial point here is that the public figure status of Dominion is completely irrelevant to the position Powell’s motion takes—which is that she did not make any statements of fact at all. If that’s right, she wins. But if she’s wrong—and if her statements are statements of fact—then she loses even on the assumption that Dominion is a public figure, because she will have admitted to deliberately stating falsehoods.
If Times v. Sullivan is irrelevant to Powell’s defense, on what does that defense rest? Her motion to dismiss relies on two main ideas: the distinction between facts and opinions; and the assumption that political lies are entitled to First Amendment protection. Let us consider these ideas in turn.
Opinions and Facts
In one of the sequels to Times v. Sullivan—the 1974 Supreme Court ruling in Gertz v. Robert Welch, Inc.—the justices proclaimed: “Under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas.” Powell’s motion to dismiss repeatedly claims that the allegedly defamatory statements to which Dominion points were protected opinion, not statements of fact. The claim borders on the absurd.
One cannot evade liability by couching an otherwise defamatory statement of fact as an opinion. The Supreme Court said exactly that in Milkovich v. Lorain Journal Co. Quoting Judge Henry Friendly (for whom Chief Justice John Roberts served as a law clerk as a young lawyer), Chief Justice Rehnquist (for whom Roberts also clerked) wrote that “it would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words ‘I think.’”
Milkovich involved the question whether the federal First Amendment requires an opinion exception to defamation law. The Court answered no but allowed that a state could go further to protect opinion by raising the bar for defamation liability in opinion cases. The Powell motion to dismiss claims that Colorado has done just that.
As a threshold matter, it is not clear that Colorado law even applies. Dominion sued in the District of Columbia, relying on D.C. law. Let us nevertheless assume for the sake of argument that under the relevant principles of what lawyers call choice-of-law, the law of Colorado governs because Dominion is based there. Even so, Colorado law is not as wildly defamation-defendant-friendly as Powell’s motion to dismiss suggests.
In Colorado, as in some other states, courts are more likely to treat as opinion a statement that accompanies the facts on which it is based than the same statement standing alone. That makes some sense. Imagine two cases. Doug says, “Peter is a pedophile.” David says, “Peter had an affair with a 20-year-old when Peter was in his 60s, so Peter is a pedophile.” Assuming Peter is not in fact a pedophile as that term is conventionally understood, Doug but not David defames Peter. Even though both Doug and David utter the words “Peter is a pedophile,” when David says them he does not literally mean Peter has sex with or is attracted to young children. Because of the added factual context, David’s statement characterizes Peter’s affair with a 20-year-old as morally equivalent to pedophilia; it can thus be deemed opinion.
What about Sidney Powell’s statements? Did she include with them statements of fact indicating that her wildest claims about Dominion were merely hyperbolic characterizations of those facts? Not at all.
To be sure, Powell’s motion to dismiss asserts that she “disclosed the facts upon which her conclusions were based,” pointing to a binder of material she included in various lawsuits and published on a website. But, as the Dominion complaint to which that assertion is a completely inadequate response notes (in paragraphs 149-158), the binder itself contained actionable falsehoods, and Powell made additional false statements of fact that were not in any way mere elaborations, characterizations, or conclusions drawn from the statements in the binder.
Thus, Powell is not at all like David in my hypothetical example—unless we add further details that show that David would have defamed Peter. Suppose, for example, that Peter did not in fact have an affair with a 20-year-old or anyone else. And suppose further, that, in addition to falsely accusing Peter of pedophilia via an affair he did not have, David also falsely accuses Peter of being a drug dealer. Then David would be like Sidney Powell.
Does Anything Go in Politics?
Powell’s motion to dismiss stakes a great deal on the political context of the case. Because Powell was acting as an attorney in an intensely partisan contest, the motion asserts, under both state and federal law, courts should be highly reluctant to hold her accountable. Can that be right?
Powell’s attorneys are correct that the courts are and should be careful before making statements about politics the basis for defamation liability, lest they thereby chill robust political debate. But the motion to dismiss plainly goes too far. The complaint alleges quite credibly that Powell knowingly and repeatedly made false statements about Dominion that she intended her audience to believe and that millions of them did, including some who attempted to overthrow the government on January 6. More importantly for present purposes, Dominion credibly alleges that as a consequence of Powell’s baseless campaign against the company, it has suffered reputational damage that will cost it hundreds of millions of dollars.
Is that the price we pay for wide-open debate? In short, no.
In the 2012 case of United States v. Alvarez, Justice Kennedy, writing for a Supreme Court plurality, allowed that the First Amendment does not permit the government to forbid political speech simply because it is false. Some political lies, the Court held, are entitled to free speech protection. But even the four-justice plurality opinion—which was more protective of falsehoods than the positions espoused by the other members of the Court—did not say that all political lies are protected. On the contrary, the plurality distinguished the law at issue in Alvarez from conventional defamation liability subject to the Times v. Sullivan test, which it essentially reaffirmed. Put simply, even political speech can be the basis for defamation liability.
Nothing in the tort law of Colorado (or any other state or the District of Columbia) says otherwise. Yes, the relevant bodies of law demand sensitivity to the political context of speech, but they permit liability where deliberate falsehoods target and damage the plaintiff’s reputation.
Under the Federal Rules of Civil Procedure, a district court ruling on a motion to dismiss must assume that the factual allegations of the complaint are true. Applying that standard, Sidney Powell blatantly defamed Dominion. If she cannot be held liable for defamation on the facts alleged here, then no one speaking on politically charged issues can ever be held liable.
Whereas Trump wanted to “open up” the libel laws, Powell’s approach, if accepted, would completely shut them down. The district court should follow neither course. In order for Dominion to prevail, the district court need not open up or shut down the law of defamation. It need only apply that law.