Lawyers for proponents of election-fraud claims invoke First Amendment

Lawyers for the most famous proponents of former President Donald Trump’s baseless election-fraud claims — Rudy Giuliani, Sidney Powell and Mike Lindell — argued to a federal judge on Thursday that their clients could not have defamed the voting machine firm Dominion Voting Systems because Dominion could not be defamed.

“Dominion, in this context, is the government,” Lindell attorney Doug Daniels contended, saying that election activities are so essential to democracy that any private company engaging in them should be treated as an extension of the government — which can’t be sued for libel.

During a four-hour argument session in federal court in Washington, the attorneys for Giuliani, Powell and Lindell squared off with lawyers for Dominion, which filed a series of lawsuits earlier this year accusing its prominent critics of defamation.

While Lindell and Powell were on hand, Giuliani did not appear in court on Thursday as his lawyer argued for dismissal of the suit against the Trump attorney and former New York mayor. Earlier in the day, Giuliani’s New York law license was suspended after an appellate court said he made false and misleading statements about the 2020 election.

Although Trump has repeatedly decried the Supreme Court’s New York Times v. Sullivan “actual malice” standard for making it too hard for public figures to sue for libel, the attorneys for Trump’s allies enthusiastically embraced that rubric on Thursday to argue that Dominions’ suits should be thrown out before any fact-finding.

Andrew Parker, a lawyer for Lindell and his MyPillow company, said Dominion cannot prove actual malice — that is, knowing that statements were false and sharing them anyway or recklessly sharing them without regard for how true they are — because there's no evidence of that sort. He noted that concerns about election security and Dominion’s hackability have been publicly aired in the past by senators such as Amy Klobuchar (D-Minn.).

Lawyers for the defendants argued that the court must dismiss the suit so as not to chill any criticism of the government, asserting that this is a First Amendment case.

“It is that kind of hurly-burly in the marketplace of ideas that this country is grounded on,” Daniels said. If such suits are allowed to proceed, he added, “we’re going to become a society where opinions will be shut down.”

Thomas Clare, a lawyer for Dominion, said painting Dominion as a government actor was a “nonsensical argument.” He also said scuttling the suits based on Times v. Sullivan would be unwarranted and a misapplication of the actual malice standard, as the allegations in the suit about the defendants intentionally distributing false statements “overwhelmingly” satisfy the standard.

The Dominion lawyer said their suits stand apart from others because Dominion put the election-fraud proponents on notice that their claims were false, there was specific evidence that the claims were false and the defendants falsified evidence to make their points.

Parker called the accusation about falsifying evidence a “bald-faced allegation,” maintaining that Lindell stands by the accuracy of his election claims.

“Mr. Lindell not only believes those statements are true. He intends to prove they are,” Parker said.

In addition to Giuliani, Powell and Lindell, the suits also name as defendants Lindell’s My Pillow firm and Powell’s organization Defending the Republic.

Another attorney for Dominion, Megan Meier, cited the Capitol riot earlier this year as she pleaded with U.S. District Court Judge Carl Nichols to reject arguments from several of the defendants that their ties to Washington are too weak to let the suits proceed here.

“The events of Jan. 6 and the fact that those people were fooled by the defendants’ lies show that this court is the one that should resolve these cases,” Meier said.

Nichols, a Trump appointee whom the former president nominated in 2018, issued no immediate ruling following the lengthy argument session. He said he planned to issue a written decision or perhaps multiple rulings on whether the cases could proceed to fact-finding and potential jury trials.