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In the wake of the 2020election, the machinery of disinformation began spreading the Big Lie that a massive and coordinated electoral fraud campaign led to President Trumps defeat. Some of this disinformation came from his legal team as well as the president himself, and these false claims wereamplifiedand spread by far-right broadcasts on networks such as One America News Network (OAN) and Fox News. While politician Sarah Palin recently failed in a defamation suit against theNew York Times, a company called Dominion Voting Systems Inc. may well succeed in its defamation suit against these two news organizations.

Each news organization trained its sights on Dominion Voting Systems Inc., a manufacturer of voting machines used in 28states. The accusations were so vile and repetitive that Dominion filed defamation suits against Fox, OAN, and attorney Sidney Powell, a member of Trumps legal team, among others. In the suit against Fox, Dominionstatedthat [i]f this case does not rise to the level of defamation by a broadcaster, then nothing does." In its filing on OAN, the complaintargued, OAN helped create and cultivate an alternate reality where up is down, pigs have wings, and Dominion engaged in a colossal fraud to steal the presidency from Donald Trump by rigging the vote.

After the 2020election, Powell alleged that Dominions voting machines were unreliable, hacked, or flipped votes. When she tried to get the Dominions defamation case dismissed, the district court ruled against her, stating, Powell contends that no reasonable person could conclude that her statements were statements of fact because they concern the 2020presidential election, which was both bitter and controversial. . . . It is true that courts recognize the value in some level of imaginative expression or rhetorical hyperbole in our public debate. But it is simply not the law that provably false statements cannot be actionable if made in the context of an election.

These suits test the reach of the First Amendment and the extent to which lies are considered protected speech. The Supreme Court has determined that published lies or inaccuracies are entitled to at least some First Amendment protection in many instances as the price of facilitating political debate and deliberation in our democracy. The Court also decided, however, that when actual malice is present, that protective coverage no longer extends. Is the Big Lie protected by the First Amendment? Or do the actions of the press and the presidents lawyers meet the actual malice standard?

The outcome of these suits may signal whether the Supreme Court is ready to overturn precedent and put tighter reins on speech or if it will offer a new set of guidelines to determine when election lies are unconstitutional and punishable by law.

Because some of Dominions defamation suits are against the press, they raise the issue of whether the actual malice standard from the landmark 1964case ofNew York Times v. Sullivanshould remain in place.

Sullivanwas a case where a public safety commissioner in Alabama, L.B. Sullivan, took offense to an ad in theNew York Timesthat was raising money for Martin Luther King Jr. and other civil rights leaders. The ad contained some factual errors that Sullivan claimed defamed him. He sued and won a $500,000judgment against theNew York Timesin lower courts. The Supreme Courtreversedthe decision, calling it constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct.

This case created the actual malice standard, whichstates, [t]he constitutional guarantees require . . . a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malicethat is, with knowledge that it was false or with reckless disregard of whether it was false or not. This was adeparturefrom the common law tradition, which had previously provided defamed individuals a greater ability to sue the press and win.

The rationale for the Courts decision in support of broader protection for freedom of the press including the freedom to publish errors and inaccuracies was that it consider[ed] 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.Sullivanprovides protection so that the press need not censor its critiques of elected and appointed government officials.

ThoughSullivanensured that the press could criticize those in political power, the Supreme Courtexpandedthe actual malice standard topublic figuresas well. While determining who qualifies as a public official is reasonably straightforward, public figure is inherently subjective and depends on how well-known a particular plaintiff is.

The Supreme Court did make clear that private individuals (non-public figures and non-government officials) were not covered by the actual malice standard in part because it was so much harder for a private, non-famous individual to get their good name back after it was defamed. As the Supreme Court noted inGertz v. Robert Welch, Inc., private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery. Thus, the Court left the rules for defamation of private individuals up to the 50states. And it made clear that someone experiencing 15minutes of fame did not mean that they were a public figure. As the Supreme Court explains inWolston v. Readers Digest, [a] private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention.

There were criticisms of the actual malice standard from the beginning. In theirconcurrenceinSullivan, Justices Hugo Black and William Douglas warned that malice was an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides at best an evanescent protection for the right to critically discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment.

In the past few years, Justices Clarence Thomas and Neil Gorsuch have raised questions about whetherSullivans actual malice standard should persist in cases where public figures have their reputations tarnished by lies in the press. Thomas raised some eyebrows when he wrote a concurring opinion from a denial of certiorari inMcKee v. Cosby, a case in which a woman who accused entertainer Bill Cosby of sexual assault was deemed to be a limited public figure and consequently lost her defamation case because she could not satisfy the high actual malice standard. He went on to argue that New York Times [v. Sullivan] and the Courts decisions extending it were policy-driven decisions masquerading as constitutional law.

In 2021, Gorsuch joined Thomas criticism inBerisha v. Lawson, in which the Supreme Court declined to hear a case where the plaintiff sued an author for defamation based on his characterization in the authors book. Gorsuch wonders aloud, [a]sSullivansactual malice standard has come to apply in our new world, its hard not to ask whether it now even cut[s] against the very values underlying the decision.

Dominion is suing OAN and Fox News in separatesuitsfor repeatedly airing claims like the ones articulated above by Ms. Powell. Dominionssuit against OANis particularly stark in its allegations:

To capitalize on the interest its target audience had in the false Dominion narrative, OAN effectively deputized its Chief White House Correspondent, Chanel Rion, as an in-house spokesperson for all Dominion-related content. After priming its viewers with a steady diet of post-election programming falsely claiming Dominion rigged the 2020election, OAN and Rion began producing an entire line of programming exclusively devoted to defaming Dominion, descriptively named Dominion-izing the Vote, which branded OANs disinformation and defamation campaign against Dominion into a single catchy phrase that is now synonymous with fraudulently flipping votes.

The complaint alsoallegesthat in February 2021, months after the 2020election, OAN enlisted MyPillow CEO Mike Lindell to broadcast a series of multi-hour-long documentaries spreading disinformation about Dominion. Lindell falsely claimed that Dominion was behind the biggest cyber-attack in history, and that Lindell had absolute proof. Thus, OAN was tainting Dominions brand through its constant leveling of conspiracy theories against the company.

Dominion argued in its suit that OAN met the high burden of showing actual malice, statingthat OANs defamatory statements were accompanied with malice, wantonness, and a conscious desire to cause injury. OANs efforts to dismiss this suit are stillpending.

While Foxs actions were slightly less egregious than OANs behavior, Foxs considerably larger audience conceivably did more damage to Dominions reputation. As Dominionallegedin its complaint for defamation, [t]hese lies transformed Dominion into a household name. As a result of Foxs orchestrated defamatory campaign, Dominions employees, from its software engineers to its founder and chief executive officer, have been repeatedly harassed. Some have even received death threats. And of course, Dominions business has suffered enormous and irreparable economic harm.

Dominion tried to get Fox to correct its erroneous statements in real time by sending written rebuttals to false claims made by the network and its on-air personalities. As Dominionallegedin its complaint: even after Fox was put on specific written notice of the facts, it stuck to the inherently improbable and demonstrably false preconceived narrative and continued broadcasting the lies of facially unreliable sourceswhich were embraced by Foxs own on-air personalitiesbecause the lies were good for Foxs business. While Fox corrected the record with regards toSmartmatic, a different voting machine company, Fox did not relent on the matter of Dominion voting machines.

When the issue reached the courts, a Delaware state judge in theDominion v. Foxcase rejected all of Foxs First Amendment arguments and denied Foxs motion to dismiss the case. Fox attempted to argue that, as press, it was immunized from liability for defamation if what they were reporting was newsworthy. But this did not convince the judge, whoconcluded, [t]he United States Supreme Court has attempted to strike a balance between First Amendment freedoms and viable claims for defamation [and] declined to endorse per se protected categories like newsworthiness.

The courtnoted[t]he Complaint supports the reasonable inference that Fox either (i) knew its statements about Dominions role in election fraud were false or (ii) had a high degree of awareness that the statements were false. Moreover, the court found that the Complaint alleges facts that Fox made the challenged statements with knowledge of their falsity or with reckless disregard of their truth. The courtconcludedthat it could infer that Fox intended to avoid the truth.

Dominions billion dollar suits againstFoxand OAN raise a host of thorny questions: Should suits against the press for defamation be easier to win? Should statements about public figures and public officials be held to the same standard as statements about private citizens? Should a corporation like Dominion be deemed a public figure for libel purposes?

These questions seem destined to reach the Supreme Court in one form or another, as demonstrated in the recentlydismissedlibel suit brought by former Alaska governor and vice presidential candidate Sarah Palin against theNew York Times.

On the one hand, the ability of the free press to report on ongoing events will involve innocent errors. On the other, defamatory misstatements about persons or companies can do far more financial and reputational damage today than they could in 1964given the reach of cable news and internet audiences. The series of outrageous claims about Dominions voting machines could well make new case law and provide the Supreme Court a chance to articulate which types of lies about elections areactionable.

Dominions suits point to the direct harm to democracy that disinformation can cause. AsNPRreported, Dominions court filing alleges that Fox recklessly disregarded the truth and that some of its viewers believed the channels narrative with such fervor that they took the fight from social media to the United States Capitol and at rallies across the country to #StopTheSteal, inflicting violence, terror, and death along the way. And moreover, [t]he lies did not simply harm Dominion, the companys lawsuit says. They harmed democracy. They harmed the idea of credible elections. They harmed a once-unshakeable faith in democratic and peaceful transfers of power. In other words, the small-d democratic stakes could hardly be higher in these defamation cases about a voting machine company in the 2020election.

Continue reading here:
Dominion Voting's Libel Suits, the First Amendment, and Actual Malice - brennancenter.org

(Photo by Win McNamee/Getty Images)

Time for a little check in on the Trump tech LOLsuits this Friday afternoon, since the former president has been cluttering our inbox with alerts of new filings in his never-ending quest to get Twitter, Meta, and YouTube to take him back.

Last July, Trump sued the three social media giants for tortious deplatforming. The theory of his case is that refusing to let him live-tweet Fox and Friends every morning is actually a First Amendment violation. Now, some might quibble that only the government can violate the First Amendment. But Trumps lawyers have an answer for that one, and it is that Twitter, Meta, and YouTube are in fact agents of The Man because they are secretly carrying out the edicts of Rep. Adam Schiff, who has threatened to yank Section 230 immunity if they dont silence Trump.

Which sounds crazy as we type it, because it is literally crazy.

In February, Twitter filed a statement of recent decision, citing a recent holding on the same fact pattern in the same district. A bunch of anti-vax weirdos who sued YouTube for axing their videos alleging that the site had became a government agent following orders from Rep. Schiff to boot the horse paste orgy sites got tossed out for failure to state a claim.

Simply put, [t]he publicly expressed views of individual members of Congress regardless of how influential do not constitute action on the part of the federal government, US District Judge Jon S. Tigar wrote.

Not to be outdone, Trumps crack legal team would like to highlight its own case. To wit, theyre drawing the courts attention to a recent Ninth Circuit holding in a suit brought by Twitter against Texas Attorney General Ken Paxton.

After the site booted Trump, the AG made a series of public threats and launched an investigation, purportedly into possible false statements about the companys content moderation policy. Twitter sued to block the query, alleging that it was retaliatory and stifled the companys freedom of speech. The trial court dismissed the case as unripe, since the AGs document demands were not self-executing, and further process would be necessary before the company was actually compelled to cough anything up.

The Ninth Circuit agreed: This case is not prudentially ripe. The issues are not yet fit for judicial decision because OAG has not yet made an allegation against Twitter, because the facts are not yet developed, and because Twitter need not comply with the CID, can challenge it if it is enforced, and could have challenged the CID in Texas state court.

What does this fact pattern have to do with Trumps stupid tech suits, other that Ken Paxton is only going after Twitter because he thinks hes Will Smith charging onto the stage at the Oscars to defend his wife Donalds honor?

Well, nothing.

But that hasnt stopped Trumps lawyers from lobbing it toward the docket three times yesterday with the notation That decision rejected First Amendment protections for alleged misleading statements by Defendant Twitter, Inc.

No, it really didnt. Like, not even close. Thats a total misrepresentation by multiple officers of the court to multiple federal judges.

Ah, well, nevertheless.

Trump v. Twitter [Docket via Court Listener]Trump v. Meta [Docket via Court Listener]Trump v. YouTube [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics.

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Trump Files Hilariously Mendacious Brief In Tech LOLsuits - Above the Law

Margaret Ludington| Special to the Herald-Index

I heard a rumor that something happened at the Oscars ceremony March 27. An actor landed one on a presenter after the guy made a wisecrack about the actors wife?

I mean, come on, what about the First Amendment? What about Congress shall make no law…?

Guess I just answered my own question. The First Amendment restricts government censorship of stupid remarks. It doesnt limit a private citizens ability to stage a smackdown if you insult him or his family.

Most of us figure out pretty early on that words have consequences. Maybe our moms washed dirty words out of our mouths with soap or sent us to time-out. Our siblings and playmates teach us the limits of free speech pretty quickly.

Id be more surprised to learn that the presenters words hadnt gotten him in trouble long before Oscar night.

And whats with all the Hollywood handwringing? Stories of regular guys standing up to bullies is Hollywoods bread and butter.

Remember Gary Cooper in High Noon? What about Alan Ladd in Shane? Even little Dorothy goes after the Wicked Witch of the West to stop her bullying the people of the Land of Oz. And the Karate Kid learned to overcome his fears and defeat his bullying opponent.

Sorry if my movie references are a bit dated. It comes from watching everything on streaming or TCM.

Someone could make a great screenplay out of that brief scene at the Oscars, something about the secrets and the pain hiding beneath all those tuxedos, designer gowns and rented jewelry. Probably they already have.

The actors personal meltdown came at an inconvenient time for those trying to rehabilitate the Oscars' image. The focus was supposed to be on the African-American, lesbian actress and the deaf actor breaking the glass ceiling and winning awards.

The Oscars have long been about a tight-knit group of money men, and I do mean men, pushing the Hollywood image that was best for business. They controlled what films got made, who got the leading roles, what films made it to theaters and what Oscar nominations were handed out. And dont kid yourself, they controlled what was printed on those sealed envelopes.

What amazes me isnt that an actor took a swing at a presenter for his bad-taste joke. Im amazed that all the hard-working movie people, some pretty big names included, havent staged a riot in protest for more than a century of discrimination.

More: Jordin Sparks coaches Iowans Sam Moss and Haley Slaton on 'American Idol' during Hollywood week

Margaret Ludington has lived in Altoona since 1971. She is a retired staff writer and editorial writer for the Herald-Index. Margaret is a mother of two, grandmother of four. She and her husband travel frequently and have visited every state except Alaska and five Canadian provinces.

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Ludington: Most of us learned early on that words have consequences - Des Moines Register

AKRON, Ohio Former workers from Akron Childrens Hospital who were fired after refusing to comply with the hospitals vaccine mandate are now taking their battle to federal court.

The 66 workers are represented in a class-action lawsuit that argues they were denied religious accommodations and that the hospital violated their First Amendment rights.

Jan. 11 was the hospital deadline for employees to be fully vaccinated against COVID-19. Then, at the end of February, the hospital system officially terminated those employees still out of compliance.

I believe it's very clearly unconstitutional, said Warner Mendenhall, the attorney representing the former hospital workers.

Mendenhall said all of the plaintiffs applied for religious exemptions but were denied.

These people have been working in the pandemic for two years. They've been exposed. All of them have natural immunity and the exemptionsby not granting the exemption, Akron Children's is hurting services to the community, said Mendenhall.

The complaint states the hospitals actions violate the former workers First Amendment rights to freely exercise their religion and is seeking an injunction plus damages including back pay and reinstatement or front pay.

Employers are allowed to have requirements, and health care providers traditionally have required flu vaccines, TB tests, all sorts of things, said Sharona Hoffman, a professor of law and bioethics at Case Western Reserve University School of Law.

Hoffman believes the lawsuit wont hold up because the U.S. Supreme Court upheld the federal vaccine mandate for health care workers earlier this year imposed by the Centers for Medicare & Medicaid Services.

Akron Childrens Hospital also released a statement in response to the lawsuit:

Mendenhall thinks this is a case of "government actor doctrine" where a private business acts in the interests of the federal government.

The federal government has reached out so far and it's both offered incentives and coercion for private employers and employers like Akron Children's Hospital to do the federal government's bidding. And when they do that, they step into the shoes of the federal government actor. And we believe that these employees have a right to sue directly under the First Amendment, said Mendenhall.

Hoffman said thats a difficult argument to prove and win.

Employers have to follow mandates all the time. And that does not make them an arm of the government. Quite to the contrary, they're simply complying with what the government requires, said Hoffman. The government has all sorts of regulations that apply to employers, including minimum wage, including safety protocols at work, including that you have to have drinkable water and bathrooms and not discriminateI could go on and on. And none of that makes employers an arm of the government. It makes them comply with government orders that are put in place to protect the public.

A date has not yet been set for initial hearings in the case.

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Class-action lawsuit filed against Akron Children's Hospital over vaccine mandate firings - News 5 Cleveland WEWS

The Supreme Court has consistently banned school-sponsored prayer in public K-12 schools, whether at the start of the school day, during graduation ceremonies or before football games. Under the Equal Access Act, the Supreme Court has affirmed that students may organize prayer and Bible study clubs during non-instructional hours. Even so, school staff and outside adults may not actively participate.

Lower courts have mostly forbidden public school teachers from openly praying in the workplace, even if students are not involved. Yet the Supreme Court has not directly addressed such a case until now.

Kennedy v. Bremerton School District, a case from Washington state, scheduled for oral arguments on April 25, 2022, could usher in more religious activities by teachers and other staff in public schools.

At issue is whether a school board violated the rights of Joseph Kennedy, a football coach it suspended, and whose contract it did not renew, because he ignored its directive to stop kneeling in silent prayer on the field after games. Kennedy claims that the board violated his First Amendment rights to freedom of speech and freedom of religion, along with his rights under the Civil Rights Act, which prohibits employment discrimination.

The Supreme Court faces two key questions: whether prayers public school employees say in front of students are protected by their First Amendments rights; and, if they are, whether educational officials must still prohibit them in order to avoid promoting particular religions and violating the Establishment Clause.

From my perspective as a specialist in education law, the case is noteworthy because the court should resolve sticky questions surrounding whether public school employees can pray when supervising students, or if doing so crosses the line and becomes impermissible government speech.

Kennedy v. Bremerton also reflects the inherent tension between the First Amendments two clauses on religious freedom: The Free Exercise clause protects individuals right to practice their faiths as they wish, while the Establishment Clause forbids the government from establishing a religion.

In other words, a tension exists between public employees right to religious expression within the boundaries of the law and employers needs to avoid violating the Establishment Clause.

In 2008, Kennedy, a self-described Christian, worked as head coach of the junior varsity football team and assistant coach of the varsity team at Bremerton High School. He initially knelt on the 50-yard line after games, regardless of the outcome, offering a brief, quiet prayer of thanks.

While Kennedy first prayed alone, eventually most of the players on his team, and then members of opposing squads, joined in. He later added inspirational speeches, causing some parents and school employees to voice concerns that players would feel compelled to participate.

The school board directed Kennedy to stop praying on the field because officials feared that his actions could put it at risk of violating the First Amendment. The government is prohibited from making laws respecting an establishment of religion, or prohibiting the free exercise thereof often understood as meaning public officials cannot promote particular faiths over others.

In September 2015, school board officials notified the coach that he could continue delivering his inspirational speeches after games, but they had to remain secular. Although students could pray, he could not. Even so, a month later Kennedy resumed his prayers. He had publicized his plans to do so, and was joined by players, coaches and parents, while reporters watched.

Bremertons school board offered accommodations to allow the coach to pray more privately, which he rejected. At the end of October, officials placed him on paid leave for violating their directive, and eventually chose not to renew his one-year contract. He filed a suit in August 2016.

The coachs suit raised two major claims namely that the school board violated his rights to freedom of speech and religion. However, the Ninth Circuit twice rejected Kennedys claims, in 2017 and 2021, resulting in his appeal of the second case to the Supreme Court.

The Ninth Circuit denied Kennedys claim that he had the right to private free speech on the field, reasoning that because he was a public employee, reasonable observers could have assumed his prayer had the boards support. In particular, the court found that he acted as a public employee, not a private citizen. The court did explain that educators are free to display their faith on their own time, such as when Kennedy sat in the stands as a fan during a game after he was suspended.

Turning to Kennedys freedom of religion claim, the court was satisfied that the school boards restrictions on his activity met a well-established principle: Public officials have to demonstrate a compelling government interest before they can limit someones fundamental rights, such as freedom of religion, and the restrictions must be narrowly tailored to achieve that interest.

Here, the court accepted the boards position that it had a compelling interest to avoid violating the Establishment Clause. In so ruling, the court balanced the tension between the constitutional rights to religion, and from religion the Free Exercise Clause, and the Establishment Clause, respectively.

The Ninth Circuit also rejected the coachs claims under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, religion, sex or national origin. Nor did the court accept his claims that the board failed to accommodate him, or that officials retaliated against him in not renewing his contract.

As part of its analysis, the Supreme Court is likely to consider whether the coach risked sending the message he was acting with the school boards approval, as a form of protected speech, or if his prayers were unprotected private speech.

In addition, the court may address whether Kennedy failed to act as a role model, as is expected of educators. Courts consistently agree that school employees who work with students forgo some rights by virtue of their positions. For example, the Seventh Circuit affirmed that a school board in Indiana could dismiss a teacher who violated its policy by not remaining neutral about current events in class.

As in Kennedy, boards can choose not to renew the contracts of employees who violate their policies. But until now, public employees on the job who ignored their employers lawful policies have been unable to claim that they were exercising their rights to freedom of religion or speech as a defense. It remains to be seen whether the court will acknowledge that educators cannot ignore lawful directives at work, in order to avoid unduly influencing their students, or whether the justices will open the door to granting teachers greater freedom of expression.

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As is often the case in high-profile disputes, the Supreme Court is expected to rule in late June or early July. While the case is unlikely to end disagreements over public employees prayer as free speech, in my view, the justices will likely walk a fine line in balancing the interests of educators who wish to pray at work and school boards seeking to avoid violating the Constitution.

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SCOTUS is about to decide whether a public school football coach can pray on the field - The Conversation