[Sacho]

There's nothing strange about this defense, it's quite literally the standard defamation defense. What's very strange is that what tentatively appears to be some sort of law journal is using such a click-bait title for a bog standard motion to dismiss a defamation complaint.

Here's the motion to dismiss, since it's not available at the link from the article: https://assets.documentcloud.org/documents/20519858/3-22-21-...

The meat of the defamation defense is around page 27-28. The tl;dr is: Powell's statements were opinion, not fact, and she provided the factual source that she was basing her opinion on - classic free speech, classic defamation defense.

I certainly get the funny part about politicians(well, lawyers in this case) being untrustworthy, but defamation is purposefully narrow to allow more speech in the arena, not less. It's not so funny in a different case where a quack brings a defamation suit against the blogger exposing their product as bullshit, or when a giant corp decides to silence people online critiquing their awful business practices.

[Nursie]

This feels wrong, purely because it's not saying the statements weren't defamatory, but just that she didn't really mean it and everyone should have known that. Further, some of her statements (that she had evidence of fraud and foreign collusion) seem to be testable claims of fact, not simply opinion.

These actions took place in the context of a highly damaging campaign to undermine American democracy, and impugn multiple parties, including deliberate and repeated tarring the name of a manufacturer of voting machines.

Saying "nuh-uh, I didn't really mean it" should be no defence.

There also seems to be some "The statements were made on behalf of Sydney Powell the corporation, not the individual" in that doc, which also seems weaselly.

I hope the dismissal fails.

[Sacho]

I don't disagree about this use of defamation defense leaving a bad taste(it's been used by Trump to great success as well). I looked at the original complaint(https://context-cdn.washingtonpost.com/notes/prod/default/do...) and I don't think there's any claim that alleges she made provably wrong factual claims. They do allege that she based several of her opinions on likely false(or missing) evidence, which is promising, but the bar they need to pass is purposefully high - they'd need to prove she knew the evidence was false(or lied about it existing).

Let's try to do it differently. One solution is to only allow truthful statements - this would most likely catch Powell. But that means you have to litigate every defamation claim on its merits, you would need a trial for each to determine whether the statements are "true" or not. Consider the complexity of the Oracle vs Google case, how difficult it is to establish facts in front of a court. Now imagine every giant corp brings defamation lawsuits against its detractors - sue all the random bloggers trying to bright to light that your medicine doesn't work, or that you're using child labor. Of course you have "mountains of evidence" against it, or at least you can claim so, and force a lengthy trial against people who can't afford it. How would you tackle this problem?

Even worse, what if you publish an extensive expose, but some of your facts are wrong? This is actually what happened in the decision that paved the way for the modern defamation defense (https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan) Back then, it was the government trying to silence civil rights activism, nowadays it's more and more large corporations that would rather not have their dirty laundry aired. I genuinely don't see a way to amend the standard without sacrificing a lot of freedom of speech in the process.

What would have happened if Theranos sued all the publications that exposed their nonfunctional product? Would the publications even risk publishing if defamation suits always hang over their heads?

[michaelt]

It's strange because people making this defence basically have to say their supporters are all idiots for listening to them and believing them, and it's unusual for politicians to say that out loud.

[ggm]

You see no dimension where a lawyer, making statements in their role as a lawyer has a different kind of hazard?

I'm not in law, or American. I don't see how she can put up a shingle, and espouse this kind of view.

[chrisco255]

First amendment protection is granted to all Americans.

In this case, Dominion Voting Systems is a political entity, and having control of nearly 40% of America's voting power, it must absolutely be defensible to highly criticize this corporation or we are no longer a free or democratic nation at all. Lawyers, of course have every right to speak out and call out potential fraudulent or error-prone, or socially hackable voting systems just as any other American.

From NYT v Sullivan:

"To the contention that the First Amendment did not protect libelous publications, the Court replied that constitutional scrutiny could not be foreclosed by the “label” attached to something. “Like . . . the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.”1259 “The general proposition,” the Court continued, “that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions . . . . [W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”1260 Because the advertisement was “an expression of grievance and protest on one of the major public issues of our time, [it] would seem clearly to qualify for the constitutional protection . . . [unless] it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.”1261

Erroneous statement is protected, the Court asserted, there being no exception “for any test of truth.” Error is inevitable in any free debate and to place liability upon that score, and especially to place on the speaker the burden of proving truth, would introduce self-censorship and stifle the free expression which the First Amendment protects.1262 Nor would injury to official reputation afford a warrant for repressing otherwise free speech. Public officials are subject to public scrutiny and “[c]riticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputation.”1263

https://www.law.cornell.edu/constitution-conan/amendment-1/d...

[nerdponx]

It might be standard, but it's a strange standard if you're not a legal professional.

How many people have to believe something before you either find at least one reasonable person among their ranks, or before you realize that the world is so full of unreasonable people that it makes no sense as a legal test?

[Sacho]

Sure, I get how it sounds weird. But how would you amend this standard to catch the bad people like Sidney Powell, while also allowing critique of powerful, wealthy individuals and corporations? The defamation defense(and it's related anti-SLAPP laws) have been refined over years of public discourse against snake oil salesmen and big corps trying to hide their dirty laundry. If you don't allow people to say something along the lines of: "here's my source, here's what conclusions I draw from it"(the essence of Powell's defense), then how would you allow speech critical of bad businesses?

Keep in mind, you can make anything sound ridiculous with some writing skills. How about an alternate headline - "Dominion tries to silence people claiming flaws in their voting system"?

[ggm]

I'm not a fan of voting machines. Paper and pencil work well in lots of other democracies. But that aside, Dominion suffered real harm to their share value. I think this application of a defence leaves a problem behind. She wasn't the candidate, she was a legal officer speaking to motions before the court. If not about dominion directly, didn't she file claims asserting they were parties to electoral fraud? and if the statements were not meant to be believed, what is the status of her case filed in court? Isn't she guilty of wasting the courts time?

[chrisco255]

She did NOT say her statements were not meant to be believed. That is this journalist's own sensational interpretation of the legal filing. That is all. Very important to distinguish headlines from literal quotes. You'll notice in the article that Powell is never directly quoted.

DVS systems were proven to be highly erroneous in Antirim County, Michigan, where machines were observed to have a 68% error rate: https://www.deepcapture.com/2020/12/antrim-county-computer-f...

Besides this fact, DVS systems are socially hackable, and highly vulnerable via the system's adjudication process that gives precinct IT admins and volunteers broad, unilateral powers over determining the intent of huge batches of votes (without bipartisan observers) with an overly simplistic drag and drop mechanism. Nevermind that their FTP server also used SolarWinds.

DVS deserves every bit of criticism levied by Powell and more.

Voting machines should all be banned. Especially closed source, corporate controlled voting machines. And DVS should go bankrupt.