Tuesday, March 23, 2021

Of "Loose And Hyperbolic Language"

First, let's review the elements of libel (the things a plaintiff has to prove, as a matter of law, to prevail on a claim of libel):

1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the person or entity who is the subject of the statement.

Alright:  Sidney Powell's lawyers have filed a motion to dismiss, based in part on issues of jurisdiction and, if those fail, requesting a change of venue (so two motions in one; dismissal, or change the location of the case).  I don't want to dig into the jurisdiction or venue issues, except to point out they are issues of law, not of fact.  It is the distinction between those kinds of issues (law v. fact) that I do want to pay attention to, so questions of jurisdiction and venue help highlight the difference.

Jurisdiction is the authority of the court to act on a claim.  The court has power, or the court doesn't.  Jurisdiction is foundational, and it is decided by the trier of law, not the trier of fact.  Juries don't decide whether the court has jurisdiction; juries decide what the facts of the case are.  The trier of law decides how the law applies to those facts.  Questions of fact, in legal reasoning, are issues upon which reasonable minds can differ.  Questions of law are questions upon which reasonable minds cannot differ.  Obviously that latter category is a fluid one, since courts disagree all the time on what the law applied to a set of facts, produces.  But leave that behind; we're talking about the concept of lawsuits, about how they are brought and decided, or dismissed.

If there are no questions of fact, a motion to dismiss is appropriate in order to present an argument that the law, as applied to the facts before the court, require the case be dismissed.  Hold on to the elements of libel (we'll come back to them), but start there for this motion to dismiss Powell has filed.

When a defendant files a motion to dismiss, it is an acceptance of the facts alleged by the plaintiff.  It has to be.  There can't be questions of fact between the parties, or the court can't rule on the motion to dismiss.  The defense has to accept the facts alleged, in order to argue the law nonetheless doesn't allow for relief.  That's how Powell's lawyers get to the question of whether or not her statements were statements of fact, or statements of opinion.  That seems like a question of fact; but it's actually a question of law, because libel law defines what is, and what isn't, a statement of fact; and what statements are, and are not, subject to a claim for libel.

We've cut to the chase, in other words.  Without any discovery, Powell's lawyers are willing to admit everything in the Plaintiff's Complaint is factually correct. They want to end this now, and they're only hope is to argue the law.  Forget the jurisdiction and venue arguments; that's standard operating procedure in a federal case based on diversity jurisdiction.  To not argue about that would be malpractice.  But Powell's entire defense rides on this one motion.

Powell's lawyers have essentially admitted they have one shot in this case, and that's to argue the law.  They've conceded that Powell said what everyone heard her say.  What would ordinarily be the subject of a trial, is now moot.  There is no argument about what was said.  How the law applies to what was said is now the only issue.  If Powell's lawyers win this argument, the case is dismissed.  If they lose, Dominion can move for summary judgment, and probably win that motion handily. (There are no facts to dispute, and the court has already ruled on Powell's legal arguments.) This is pretty much an all-or-nothing action, in other words.

And the best they have is a sleight-of-hand argument about who "reasonable people" are.

"Reasonable people" in libel is not the same issue, exactly, as reliance in a fraud claim.  To establish fraud you have to establish that "reasonable people" would rely on the misrepresentations of the fraudster to their detriment.  Now we're back to the elements of libel: reliance on the libelous statements is not the issue.  Libel per se, for example, is libel so foul you don't have to prove actual damages.  The classic example is accusing someone of a felony, defined in law as a crime of moral turpitude, not just a really bad criminal act.  To accuse someone of a felony is to impugn their moral character.  Libel per se means that allegation is enough to win damages.  In ordinary fraud you have to prove actual damages, not just that mean things were said about you and you don't like it (again, this might vary according to state statutes).  But if I took action based on the libel and cut my contract with Dominion, or refused to entertain a contract for Dominion products, that's "actual damages," whether or not I should have known Powell didn't mean for me to rely on her statements.

The "reasonable person" standard, in other words is not that only unreasonable people (like those who stormed the Capitol) believed Powell.  The "reasonable person" standard means that, given a lawyer is making public declarations, and filing suits (also part of the libel claim, I'm sure) alleging Dominion was in league with dead Hugo Chavez (among other things) to subvert a U.S. Presidential election (and other elections, since it was all one ballot), it's reasonable to believe this lawyer has facts to support her claims; however unreasonable those claims might be.  Or that she's acting with reckless disregard for the truth, which is closer to the question before the court.  If she can't prove the former (that her claims were basaed on fact; too late for that, her motion to dismiss says she has no facts), it pretty much establishes the latter (she said it, and she didn't care how true or false it was).  That's libel in a nutshell.

Recall Powell argues that Keohane establishes that opinion is protected speech:

In Keohane, the Colorado Supreme Court identified a two-step inquiry to determine whether a statement is protected. The first is whether the statement is “sufficiently factual to be susceptible of being proved true or false.” Id. (quoting Milkovich, 497 U.S. at 20). The second is whether “reasonable people” would conclude that the assertion is one of fact. Id.

Context is all, and the sentences following that last are important:

The factors relevant to the second inquiry are: (1) how the assertion is phrased; (2) the context of the entire statement; and (3) the circumstances surrounding the assertion, including the medium through which the information is disseminated and the audience to whom the statement is directed.

Powell made her statements in court pleadings, and in support of her lawsuits and legal claims.  Given the circumstances, it's perfectly reasonable to conclude her statements were ones of fact, even if they seemed outrageously absurd.  I would also point out Keohane involved letters to the editor about a Colorado judge, letters which contained statements the judge objected to but which the court found were protected speech.  An "uninhibited, wide-open, and robust debate" is certainly justified in the pages of a newspaper. A lawyer seeking to reverse the results of an election by making wild claims of conspiracy and fraud, on the other hand, is not just somebody writing letters to the editor.

The letter appeared in the editorial section of the paper, a traditional forum for debate, where intemperate and highly biased opinions are frequently presented and, absent credentials which make the author particularly credible, often times should not be taken at face value. 

I'm trying to think of a court that would make the same argument about the statements of a lawyer concerning the lawsuits she is pursuing and the factual basis, as she alleges, for them.  Especially when those claims very nearly amount to sedition.  The courts are a traditional forum for settling disputes between parties.  I'm not sure they're a traditional forum for debate on conspiracy theories involving dead politicians, foreign countries, and U.S. ballot counting.  And when a lawyer is making factual statements about a lawsuit she has filed or announces she will file, I think that makes “the author particularly credible.”  I would say the cases are distinguishable.

And one other thing: whether or not Powell's statements were "statements of fact" or statements of opinion, is irrelevant to the legal analysis.  Malkovich v. Lorain abolished the "artificial" distinction between opinion statements and factual statements for the purpose of libel law and First Amendment considerations.  Even if Powell was just mouthing off, there are still valid questions of libel involved.  In Malkovich a man accused of perjury in a local newspaper column sued, and the Supreme Court agreed there was a libel question that was not precluded by the First Amendment:

We are not persuaded that, in addition to these protections, an additional separate constitutional privilege for "opinion" is required to ensure the freedom of expression guaranteed by the First Amendment. The dispositive question in the present case then becomes whether or not a reasonable factfinder could conclude that the statements in the Diadiun column imply an assertion that petitioner Milkovich perjured himself in a judicial proceeding. We think this question must be answered in the affirmative. As the Ohio Supreme Court itself observed,

"the clear impact in some nine sentences and a caption is that [Milkovich] 'lied at the hearing after . . . having given his solemn oath to tell the truth.'"

Scott, 25 Ohio St.3d at 251, 496 N.E.2d at 707. This is not the sort of loose, figurative or hyperbolic language which would negate the impression that the writer was seriously maintaining petitioner committed the crime of perjury. Nor does the general tenor of the article negate this impression.

We also think the connotation that petitioner committed perjury is sufficiently factual to be susceptible of being proved true or false. (emphasis added)

That case was remanded to the trial court where it had been dismissed based on the First Amendment.  If the trial court finds a reasonable person could have concluded Powell's remarks were an assertion based on facts, then Powell loses.  Completely.

Powell's defense is that her statements were opinion, and too vague to be relied upon as anything but opinion.  If the court shreds that, she's got nowhere left to hide.  She can't say:  okay, never mind, I didn't say it, make Dominion prove it, and besides I have facts to go to court on.  She's already told the court she did say it, and that these were fact-free "opinions."  If the court doesn't accept her legal argument, this case is over except for establishing actual damages.  Think of it like a capital murder case, where the first trial is over culpability, and the second, if necessary, is over punishment.  After the first trial, the only question is how harsh the punishment will be.  After the hearing on this motion to dismiss, unless the court dismisses, the only question will be:  how much does Dominion recover?

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