“These Are Not The Claims You Are Looking For”

'A massive fraud': CNN panel thrashes Sidney Powell for using 'Fox News defense' in defamation case https://t.co/CkJeM8Qn6d

— Raw Story (@RawStory) March 23, 2021

Libel law varies from state to state (it's gone from common law to statutory law over the years), but the basic elements are:

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.

The question of intent (negligence is the threshold of intent) is cleared by Powell admitting she made the statements, and that she knew they were false.  The claim that she considered them so false no one could believe them, is not a defense at all.  You’ll notice there’s no element of reliance in those elements.  Reliance would come up in fraud:  fraud is where you make a false statement that someone else relies on to their detriment.  Powell seems to be invoking the fraud standard here; but it doesn’t apply.  And as we’ll see, her lawyers aren’t that dumb.  Although they aren’t all that clever, either.

There’s also the Sullivan standard:  that the statement was made with actual malice:

The Sullivan court stated that "actual malice" means that the defendant said the defamatory statement "with knowledge that it was false or with reckless disregard of whether it was false or not." The Sullivan court also held that when the standard is actual malice, the plaintiff must prove actual malice by "clear and convincing" evidence, rather than the usual burden of proof in a civil case, which is the preponderance of the evidence standard.

 Powell has admitted the statements were false, which seems to relieve the plaintiff of the burden of proving by “clear and convincing evidence” that the statements were false.  But Powell’s lawyers do rely on the Sullivan standard, although they do it through Colorado law (the bulk of the filing in question is about jurisdiction and venue issues, and claims Colorado law applies to this case.)  Their argument on the libel issue, in a nutshell, is that:

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.

You might think “reasonable people” wouldn’t believe Powell’s absurd statements, but that’s not the standard of the law.  Her statements were “reasonably factual,” which is to say they were not statements of hyperbole or opinion.  One of the cases cited by Powell’s lawyers is a libel claim based on statements that claims of the plaintiff were a “scam” and people who relied on the plaintiff’s claim had been “totally taken.”  Those are much vaguer, and barely factual, statements, compared to those made by Powell.  Which is just to stay Powell hasn’t blankly said her defense is a defense to fraud, not libel, but it’s not the powerful defense her lawyers want it to be.  (It’s also to say Dominion’s case is clearly distinguishable from the cases relied on by Powell’s defense.) This is the heart of Powell’s legal argument:

As political speech, it lies at the core of First Amendment protection; such speech must be “uninhibited, robust, and wide-open.” N.Y. Times Co., 376 U.S. at 270. Additionally, in light of all the circumstances surrounding the statements, their context, and the availability of the facts on which the statements were based, it was clear to reasonable persons that Powell’s claims were her opinions and legal theories on a matter of utmost public concern. Those members of the public who were interested in the controversy were free to, and did, review that evidence and reached their own conclusions—or awaited resolution of the matter by the courts before making up their minds. Under these circumstances, the statements are not actionable.

So it’s not exactly a reliance argument.  Rather, Powell’s defense is that her statements were opinions and legal theories (the question of them being “of utmost public concern” is meant to invoke a legal protection we won’t bother with here).  She was offering opinions on facts, not false statements that libeled Dominion.  Nice work, if you can get it. Powell made factual statements, not statements of opinion.  It’s not an opinion, legal or otherwise, to say that Dominion worked with Hugo Chavez to steal elections in America.  Nor was it merely political speech.  I can’t call for the overthrow of the U.S. government, or advocate sedition, and claim my speech is protected political speech under the First Amendment. I can’t claim an entire national elections is fraudulent and the declared victor is illegitimate, and claim my speech is “opinion” and is also protected by the First Amendment (sedition is trying to interfere with the functions of government.  What function is more basic than elections?) And her statements weren’t offered as commentary; she offered them as support for the lawsuits she brought to overturn the election results in several states.  Lawsuits are based on facts, not opinions.  

So Powell’s defense is weak; just not for the reasons being bandied about.