Defendants in Dominion defamation lawsuit over election fraud claims invoke free speech rights

Story Highlights

  • All three defendants are seeking to dismiss the lawsuit.
  • Defendant lawyers say Dominion acted in a government capacity during the last election
  • Attorneys also accused Dominion of attempting to silence its critics.

WASHINGTON – Defendants facing defamation lawsuits brought by Dominion Voting Systems argued that the First Amendment protects them from being sued over claims they made about the 2020 presidential election because Dominion – a private company that manufactures voting machines – is a public figure that took on a governmental role.

Sidney Powell, a lawyer and conservative firebrand; Rudy Giuliani, former President Donald Trump’s personal attorney; and Mike Lindell, founder and chief executive of MyPillow and a prominent Trump supporter, are each facing billion-dollar lawsuits accusing them of falsely claiming that Dominion rigged the last election to help President Joe Biden. All three defendants are seeking to dismiss the lawsuit.

During a court hearing Thursday in federal district court in Washington, D.C., attorneys for Powell and Lindell said Dominion acted in a government capacity during the last election. Because of this, Dominion has to prove that they acted with malice when they accused the company of manipulating votes, the attorneys argued, drawing on previous court cases barring public officials from suing people who criticize them.

In this Nov. 19, 2020 file photo, Sidney Powell, right, speaks next to former Mayor of New York Rudy Giuliani, as members of President Donald Trump's legal team, during a news conference at the Republican National Committee headquarters in Washington. On Friday, June 4, 2021, The Associated Press reported on stories circulating online incorrectly asserting election technology firm Dominion Voting Systems lost its lawsuits against Powell and Giuliani. Dominion’s defamation lawsuits against the pair are ongoing, according to legal records. (Photo: Jacquelyn Martin, AP)

“If you are criticizing the government … that is not actionable,” Doug Daniels, Lindell’s attorney, said, adding that Dominion is considered a government figure “because they’re administering the election.”

Dominion’s attorney, Tom Clare, said calling the company a government actor is a “nonsensical argument.”

“They’re trying to tag us falsely with the label of a government actor,” Clare said. “Dominion doesn’t administer elections. Election officials do using the tools made by Dominion … That is a critical distinction.”

Dominion, which has found itself the target of conspiracy theories about the last election, accused Powell of ruining its reputation by claiming it was part of an elaborate plot involving deceased Venezuelan leader Hugo Chavez, the CIA and Chinese communists to rig the election against Trump. In a separate lawsuit, the company said Giuliani made more than 50 statements attacking the reliability of Dominion’s equipment. It also said Lindell knowingly lied about Dominion’s voting machines to sell more pillows to people by repeating what they wanted to hear about the election.

Powell’s attorney, Howard Kleinhendler, argued Thursday that Powell’s claims about the last election were backed by sworn affidavits she believed to be true. Powell’s attorneys also argued in court records that the allegedly defamatory statements at issue are constitutionally protected not only because Dominion is a public figure, but also because they concern issues that matter to the public. 

Attorney for the President, Rudy Giuliani speaks to the media at a press conference held in the back parking lot of Four Seasons Total Landscaping on November 7, 2020 in Philadelphia, Pennsylvania. The press conference took place just minutes after news networks announced that Joe Biden had won the presidency over Donald Trump after it was projected that he had won the state of Pennsylvania. (Photo: Chris McGrath, Getty Images)

Attorneys also accused Dominion of attempting to silence its critics. 

“This case is part of a coordinated crusade by (Dominion) to silence debate regarding a matter of the utmost public concern in a democratic society – the integrity of its elections,” Lindell’s attorney argued in court records. “Plaintiffs are a private company hired by the government to perform the critical governmental function of helping to conduct free and fair elections. The freedom to speak openly in the public square about such subjects is a keystone foundational freedom of our democracy. It is under assault in this lawsuit.”

Unlike the other plaintiffs, Giuliani did not invoke free speech issues. Instead, his attorneys argued that Dominion has failed to show it has lost profits or customers because of Giuliani’s statements. 

The New York state Supreme Court on Thursday temporarily suspended Giuliani’s law license over “false and misleading statements” he made to push the untrue narrative that widespread voter fraud stole the presidency from Trump.

Michael Lindell, CEO of My Pillow, Inc., waits to go into the West Wing of the White House, Friday, Jan. 15, 2021, in Washington. (Photo: Gerald Herbert, AP)

Powell is also seeking to move the lawsuit from Washington, D.C. to Texas, where she is based.

Megan Meier, another Dominion attorney, said many of the allegedly defamatory statements were made in Washington, D.C.

“Washington, D.C. was the center of the action. Washington, D.C. was the place where they can get in-person audiences. Washington, D.C. was the place where Powell could become a household name,” Meier said, noting a press conference Powell and Giuliani held in November at the Republican National Committee during which they repeated false claims about the election.

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