The world at present is a perfect storm of skepticism. Distrust of the media is rising, the twin threats of disinformation and “fake news” are seen as increasingly dangerous, and politics are more polarized than at any point in recent memory. No series of events better defines this maelstrom than the 2020 US Presidential election and its aftermath, with the official results in several states under assault from the Trump campaign and media allies alleging fraud and a “stolen” election. Two suppliers of voting machines to American authorities, Dominion Voting Systems and Smartmatic, bore the brunt of these accusations. With both companies now suing a host of Trump allies and Fox News for billions of dollars in damages, the lawsuits seem destined to provide fascinating test cases for American defamation law. We asked David Salter, Lenczner Slaght lawyer and former New York litigator, to walk us through the allegations, potential defences, and the effects that these lawsuits could have on the American political landscape.
Why are the Dominion and Smartmatic defamation cases in the United States so unusual and gaining so much media attention? Do these lawsuits have the potential to set important legal precedent?
These cases go to the heart of efforts to overturn the 2020 U.S. federal election through unfounded claims of massive fraud.
Dominion Voting Systems and Smartmatic are voting machine companies. Dominion supplied voting machines to 28 states in the election, while Smartmatic supplied voting machines to Los Angeles County.
After losing the election, President Trump and others claimed that Dominion and Smartmatic helped President Biden “steal” the election by manipulating vote counts. The language used was incredibly inflammatory. Fox News host Lou Dobbs, for example, tweeted a document claiming that “Dominion” and “Smartmatic people” were “trying to overthrow the US” by executing “an electoral 9-11” and “cyber Pearl Harbor” using voting machines “controlled via the internet.” Even though vote-rigging claims were repeatedly disproven, the so-called “stop the steal” campaign culminated in the January 2021 storming of the U.S. Capitol.
The lawsuits are big news because Dominion and Smartmatic are challenging key players who publicly made or gave a platform to those claims through defamation lawsuits. Smartmatic is suing President Trump’s legal counsel, Rudy Giuliani, Trump campaign lawyer, Sidney Powell, Fox News Corporation, and several of Fox’s on-air hosts for USD $2.7 billion, while Dominion has brought separate USD $1.3 billion suits against Giuliani, Powell, and Fox, as well as a major Trump campaign donor, Mike Lindell. Dominion and Smartmatic allege that the defendants knowingly made false claims that severely damaged their businesses and reputations.
From a legal perspective, these cases may not be precedent-setting. The bigger story is that many Americans see the courts as the last and best hope in the fight against disinformation in politics. From that perspective, the lawsuits are already having an impact. Fox News cancelled Lou Dobbs’ show—its highest-rated business show—after it was served with Smartmatic’s complaint, while Fox and its farther-right competitors, Newsmax and One America News Network, issued on-air statements effectively acknowledging that there was no evidence of election fraud after receiving Smartmatic demand letters.
Dominion and Smartmatic are consciously playing into the idea that they are defending American democracy. Dominion says that its lawsuits are designed to “stand up” for “the electoral process,” while the very quotable opening sentences of Smartmatic’s complaint quickly made the rounds on social media: “The Earth is round. Two plus two equals four. Joe Biden and Kamala Harris won the 2020 election for President and Vice President of the United States. The election was not stolen, rigged, or fixed.”
What are the more substantial differences between Canadian and American defamation law? Would the prospects of the Dominion and Smartmatic cases be better in a Canadian court?
U.S. defamation law is far more defendant-friendly than Canadian defamation law. Although Dominion and Smartmatic have strong claims, particularly against the individual defendants, the prospects of the Dominion and Smartmatic cases would almost certainly be better in a Canadian court.
The leading American case is New York Times v Sullivan, a 1964 U.S. Supreme Court decision which established the “actual malice” standard. Under Sullivan and later cases, a plaintiff who is a “public figure,” such as a politician or well‑known company, must show that the defendant made a false and defamatory statement, and knew the defamatory statements were false or acted with reckless disregard for their falsity. Although a “private figure” plaintiff can show a lower level of fault based on negligence, plaintiffs must always prove actual malice to obtain punitive damages in matters of public concern. Underlying all of this is the high value American courts place on freedom of expression, particularly in matters of public importance.
The Supreme Court of Canada has called that approach “extreme” (see Grant v Torstar Corp, 2009 SCC 61 at para 85). Whereas American cases focus on protecting freedom of expression, Canadian defamation law is generally more interested in balancing freedom of expression with the right to protect one’s reputation. Generally, if a Canadian defamation plaintiff shows that the words in question referred to them, were defamatory, and were communicated to at least one person other than the plaintiff, then the court assumes that the statement was false and damaging. It is then up to the defendant who made the statement to prove a defence, such as demonstrating that the statement in question was true, that it amounted to fair comment, or another defence.
This means that in the U.S., Dominion and Smartmatic not only have to prove that the statements at issue were false, but will likely have to show that the defendants knew that the statements were false (or that the statements were so obviously wrong that it was reckless to believe otherwise) as well. In Canada, it would be up to Giuliani and team to prove that the statements were true, amounted to fair comment, or another defence. Of course, Giuliani has indicated that he plans to try to do just that, telling The New York Times that he is a “damn good investigator” and is looking forward to his day in court.
What are some of the arguments that the respondents could use in their defence?
The claims at issue were provably false, so a key issue will be whether the defendants can convince the courts that Dominion and Smartmatic are public figures, forcing them to prove “actual malice.” An interesting point here is that if Dominion and Smartmatic are household names, it is probably only because of the defendants’ statements. Few Americans would have been familiar with these election technology companies before November 2020.
Even if Dominion and Smartmatic are public figures, they may still be able to show that the defendants knew their statements were false or acted with reckless disregard. Many of the statements at issue are not only obviously far-fetched, but were made after numerous senior election and government officials stated that there was no evidence of fraud. The statements were also very specific. Giuliani told Fox News, for example, that he had “evidence” that Dominion “used an algorithm” which “switched 6,000 votes from Trump to Biden” in Michigan — but never produced that evidence.
Giuliani and Powell’s activities as counsel may be problematic for their defences. Both claimed in public appearances to have evidence that Dominion and Smartmatic helped to rig the election. But in a Trump campaign lawsuit challenging election procedures in Pennsylvania, where Dominion supplied voting machines, Giuliani told a federal court that the complaint he filed was not alleging fraud—suggesting that he knew his out-of-court claims were false.
Meanwhile, courts dismissed election fraud lawsuits filed by Powell using unusually harsh language, including that Powell’s “evidence” was “nothing but speculation and conjecture” and that “[a]llegations that find favor in the public sphere of gossip and innuendo cannot be a substitute for earnest pleadings and procedure in federal court.” In other words, Giuliani and Powell repeatedly claimed to have evidence which never existed, suggesting that Dominion and Smartmatic have a strong case that they knew their statements were false.
A key issue for the Fox News personalities sued by Smartmatic—Dobbs, Maria Bartiromo, and Jeanine Pirro—will be whether their statements are considered opinion, which is generally protected, rather than defamatory statements of “fact.” The trio might look across the ideological divide for inspiration. Last year, MSNBC’s Rachel Maddow successfully defended a One America lawsuit after stating on-air that the broadcaster “literally is paid Russian propaganda.” Maddow convinced the court that taken in context, a reasonable person would have taken her to merely be expressing an opinion. Meanwhile, Fox News has argued that Smartmatic’s lawsuit would chill its ability to cover newsworthy events.
In the event of a finding against the respondents, how are damages assessed?
Dominion and Smartmatic are seeking “special” damages, which are meant to compensate financial harm such as lost profits. Dominion has alleged that it lost a USD $10 million contract in Ohio after a local elections board was pressured by Trump supporters, was effectively prohibited from bidding on a USD $100-million-plus contract with Louisiana, and predicts lost profits of at least USD $600 million. Voting technology companies presumably rely on their good reputation to win contracts, and there already seems to be evidence that a damaged reputation is costing Dominion business.
The voting machine companies are also asking for punitive damages, which are designed to punish and deter egregious conduct. Punitive damages are discretionary and much more difficult to obtain, although some of the conduct as alleged appears to be egregious, knowing, and designed to injure.
If Smartmatic is seeking a large settlement, it has the right lawyers. Smartmatic is represented by Erik Connolly, who represented the plaintiff in what is believed to be the largest known settlement of a U.S. media defamation case—at least USD $177 million on behalf of a beef producer whose product was described as “pink slime” by ABC News.
Do you have any other insights on the Dominion or Smartmatic cases, particularly for a Canadian legal audience?
Powell is in a particularly difficult position because she is also facing motions for sanctions in U.S. federal court relating to her election fraud lawsuits. At least one of those motions, brought by the City of Detroit, argues that Powell violated rules of procedure by making factual contentions without evidentiary support. At the same time, Powell is defending Smartmatic’s defamation lawsuit by asserting that her out-of-court election fraud claims were nothing more than opinions which “no reasonable person would conclude” were “truly statements of fact.”
That would appear to undermine Powell’s position in the sanctions proceeding, since she made similar election fraud claims—claims that were apparently fact-free opinions— in her lawsuits.
David Salter is a lawyer at Lenczner Slaght. David maintains a broad civil litigation practice, specializing in cross-border and complex commercial litigation, employment disputes, and appeals. David joined the firm after practicing in the New York office of a top-tier international law firm for more than four years. He also served as Acting Assistant District Attorney in Kings County, New York. Prior to attending law school, David held a variety of senior positions in the Government of Ontario and served in the Canadian Armed Forces as a Reservist for nearly nine years.