Professor Roger Schechter offers his views on the case involving former President Donald Trump’s lawyer.
Rudy Giuliani, a lawyer for former President Donald Trump, was recently sued by Dominion Voting Systems for statements he made accusing the voting machine manufacturer of switching votes to President Biden in the 2020 presidential election. The defamation suit against Mr. Giuliani seeks more than $1.3 billion in damages. In a Q&A with GW Law, Professor Roger Schechter addresses the questions raised by the suit and advises law students on the issues they should be following in the case.
What are the major issues in the Dominion Voting Systems defamation case against Rudy Giuliani? What should law students be paying attention to?
A threshold question in any defamation case is whether the challenged statement is true or false. I would think that Mr. Giuliani would want to make any trial an opportunity to attempt to prove that his accusations against Dominion are true. Indeed, he has said as much in public statements, having been quoted in The New York Times as saying 'We’ll have a nice fight, a real fight, and by fight, I don’t mean, don’t mean any words of violence . . . I got a pretty good record in court. And I’m a damn good investigator.' Given the outlandish nature of the claims, however, that seems like it would be an extremely daunting challenge for Mr. Giuliani. It would just be another opportunity to spread the false narrative about election fraud, but one which he would likely find hard to pass up.
The real major issue revolves around Mr. Giuliani's state of mind when he made the statement. When the plaintiff in a defamation case is a "public figure," Supreme Court authority requires that plaintiff to show not only that the defendant uttered a false statement damaging to reputation, but that the defendant knew it was false or acted with reckless disregard of its accuracy. The Court refers to this state of mind as "constitutional malice." The standard is designed to prevent a conflict between defamation law and the principles of the First Amendment. Moreover, the standard for constitutional malice is subjective. It is not whether a reasonable person would have known the statement to be false, but rather whether Mr. Giuliani knew it was false and said it anyway.
Dominion is almost certainly a public figure, at least insofar as issues of election integrity are concerned. Mr. Giuliani's statements were based on the declaration of an anonymous Venezuelan military officer, which he obtained from another Trump lawyer named Sidney Powell. The case will thus hinge on whether it was legally reckless for Mr. Giuliani to rely on this document.
Is the evidence in the case compelling? Does it warrant a $1.3 billion price tag?
In the current moment of "divisiveness" in our politics, "compelling" is in the eye of the beholder. It is certainly true that claims that a voting machine company's machines are not reliable is very damning to its corporate reputation and to its business. Mr. Giuliani will argue forcefully that it was not entirely ridiculous for him to rely on material that he got from another lawyer, and the fact that the statements came from Venezuela and were anonymous do not make them facially implausible. My own view is that such tenuous evidence would have required at least some minimal efforts at verification, but it is a close and debatable question.
The eye-popping damage request seems dubious. According to web sources, Dominion has revenue of about $90 million a year. It is asking for $650 million in actual damages and the same amount as punitive damages. Normally, in a case like this, the harm would be measured by lost sales. My guess is that not very many states have dropped Dominion based on Mr. Giuliani' statement, and thus I would think that if they prevail, they will only get a tiny fraction of what they have asked for.
How does social media impact this case? There has been so much mention of fraud and Dominion on Twitter. How does this play into it?
Strangely, it may actually help Mr. Giuliani, at least insofar as damages are concerned. Generally, those who repeat a defamatory statement are themselves liable for doing do, under the quaint adage that "tale bearers are as bad as tale makers," but those repetitions are difficult to attribute to the original speaker (here Mr. Giuliani), unless he induced the "bearers" to repeat the statements or they were otherwise acting under his direction. What that means is that while Mr. Giuliani is potentially liable for his own tweets, he is not necessarily responsible for the repetition of his claims by others, meaning that Dominion would have a tricky task in distinguishing how much of its damages was due to Mr. Giuliani's original statement.
One further point about social media. Under Section 230 of the Communications Decency Act, social media platforms like Twitter are immunized from liability for defamatory statements posted by users (a provision which was frequently attacked by former President Trump). Thus, Dominion does not have a viable claim against Twitter, even it could prove that Twitter knew the statements were false.
If you were teaching this case, what pieces are most important for students to recognize, on both sides?
I think it is a great case to use to discuss just how a defamation plaintiff can put together a case showing that the defendant acted recklessly. Rather than focus on the legal principles, I think it would be fun to take a deep dive into the possible evidence. For instance, the complaint alleges that the podcasts where Mr. Giuliani made some of his claims against Dominion were essentially infomercials during which he was also hawking dietary supplements and fraud protections services. I think we could have a lively class debate on whether and how that tends to show that Mr. Giuliani knew his statements were false.