Opinion: If Dominions defamation suits go to trial, it could be good for America – The Denver Post

On June 24, a U.S. District Court in Washington, D.C. heard arguments over whether three, billion-dollar defamation suits brought by Denver-based Dominion Voting Systems against Rudy Giuliani, Sidney Powell and Mike Lindell should go to trial.

The issue before Judge Carl J. Nichols was whether the defendants repeated claims of election fraud, including claims that Dominions software could somehow switch votes, were protected speech under the First Amendment and, therefore, not worthy of taking before a jury.

The bar for winning a libel or defamation suit is high, and trials are expensive, so it is typical for defendants to seek dismissal. But Judge Nichols must also weigh a bigger question: What is the harm in allowing this defamation case to proceed to trial and letting a jury weigh the evidence and decide?

That was the question before Denver District Court Judge John Coughlin in the mid-1990s in Smileys Too, Inc. v. Denver Post Corp., a suit brought over an article that described complaints against Smileys, a dry cleaner, on file at the Denver District Attorneys office. Because Chance Conner, a reporter working for me when I was the business editor at The Post, wrote the article, I became the point person on staff for our defense.

In the Dominion case, much will turn not just on whether the claims by Giuliani, Powell, Lindell and others are false. In all likelihood, they will have to be shown to have been produced with actual malice or reckless disregard for the truth, in other words, the defendants knew the statements were false and repeated them anyway.

This very high bar exists because the defense claims that Dominion Systems is a public figure, subject to a higher standard than a private citizen. Is Dominion Systems a public figure or simply a private company that happens to supply voting systems under contract to government entities? That, too, might be an important issue for a jury to weigh at trial.

In Colorado, the public figure rule also applies to matters of general public concern and in the case of Smileys, the question of this broad definition of a public figure in libel cases was before the court.

Another question for Judge Nichols is whether Dominion can demonstrate it was damaged by the false statements. It claims $1.3 billion in damages though the defense has argued that any possible damages are to its reputation and not to its bottom line, therefore not as clear cut as Dominion claims.

In the case of Smileys, Judge Coughlin decided that it was worth having a jury hear the evidence and decide whether public figure rules applied, whether our reporting was accurate and whether damages had occurred.

If Judge Nichols orders the case to trial, it will be up to Giuliani, Powell and Lindell to make the case for why their statements are backed up by the truth or why they deserve protection as opinion under the First Amendment. Dominion Systems will get a chance to collect evidence about what the defendants knew, when they knew it and what they did or didnt do with that knowledge.

The Posts defense in Smileys was to assume that the higher standard would not apply and stand by our story. The jury found our reporting was a fair and accurate report of the DAs complaints and exonerated The Post.

And yes, the jury agreed that a persons laundry was a matter of general public concern. Twenty-five years ago, on June 27, 1996, a Colorado appellate court affirmed the jury verdict, effectively ending the matter.

The Dominion case has drawn national attention and the trial will take place with millions paying attention. But the basic issues remain the same. Were the statements truthful? Were they protected as opinion? Is Dominion a public figure? Were there material damages?

I came away from the Smileys experience with great respect for the jury system. Trials in First Amendment cases should be rare, but in matters of vital national interest especially when the integrity of elections are the issue letting 12 citizens decide could be good for America.

Henry Dubroff is a former Denver Post business editor who now owns the weekly journal for the Central Coast of California and divides his time between Denver and the West Coast.

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Opinion: If Dominions defamation suits go to trial, it could be good for America - The Denver Post