Noah Feldman: Dominion’s libel case against Giuliani will be hard to prove

Dominion Voting Systems is suing Rudy Giuliani, President Donald Trump’s former lawyer, for libel, citing Giuliani’s false claims that the company was part of a conspiracy to steal the presidential election. The case isn’t a slam dunk, mostly because of First Amendment protections that make it hard to prove libel where public figures are concerned. But the suit is strong enough that Giuliani should hire a good lawyer — which is to say, a better one than Rudy Giuliani.

The strongest claims in Dominion’s 107-page libel complaint arise from comments Giuliani repeated on Twitter, on “Lou Dobbs Tonight” and on his own radio show and podcast. In those comments, Giuliani said that Dominion was owned by another company called Smartmatic (in fact, they are unrelated competitors) and that Smartmatic was founded by Venezuelans close to former dictator Hugo Chavez in order to steal elections. On the podcast, Giuliani went a bit further, saying that Dominion had stolen the election “technologically.”

There’s no question that the statements were false and that they were defamatory to Dominion. When the person being libeled is a private citizen, that’s enough to prove libel. And if Dominion were a private citizen, it would almost certainly win its suit.

But Dominion probably counts a “public figure” under the controlling Supreme Court standard for libel law, the famous case of New York Times v. Sullivan. When a public figure wants to sue somebody for libel, the rules are different. The plaintiff must prove that the defendant acted maliciously — that is, that the defendant either knew that the libelous statements were false or that he recklessly disregarded their falsehood.

The reason to think that Dominion should be considered a public figure is that that the company provides essential election-related services to jurisdictions all over the country. That’s a pretty public sort of business. (Law professor Devan Desai has argued that all corporations should be treated as public figures, but that’s not current law.) If Dominion is deemed a public figure, it has to meet that higher standard. Can the company do that?

The basis for the Dominion conspiracy theory Giuliani spread comes from a document purporting to be a declaration by an anonymous Venezuelan military officer. This document came to light when Dominion sued Sidney Powell, another Trump-supporting lawyer who spread the conspiracy theory. Powell introduced the document in court in her own defense.

In its complaint, Dominion argues that “there are several obvious reasons why Giuliani knew that source was unreliable.” As a pure matter of law, the assertion should have been drafted more carefully by Dominion’s lawyers. They have to prove not that Giuliani knew the source of his statements was “unreliable” but rather that he knew the statements were false. Alternatively, they need to prove that he recklessly disregarded their falsehood. Knowledge of unreliability is not the same thing as knowledge of falsehood. And as a legal matter, it isn’t necessarily reckless to make a statement that you know to be unreliable.

If, as seems possible, Giuliani defends himself by saying he was relying on the anonymous declaration provided by Sidney Powell, then the outcome of the litigation will probably turn on whether he was being reckless. Here, Dominion offers four arguments. None is a surefire winner, although all have some weight.

First, it says the statement was almost verbatim “recitation” of another statement by Powell. But Giuliani might not have known that, or else he might say that he assumed Powell was copying from the original document. Second, Dominion says that the statement was anonymous — but that’s not proof of its falsehood. Third, the company says there is an inherent reason to disbelieve the word of somebody who worked for the anti-American Venezuelan dictator; but that, too, isn’t a definitive reason to believe the statement is false. Finally, Dominion says, one-time Attorney General William Barr told Trump privately that there was no voter fraud, so the anonymous statement to the contrary must be false.

One further twist is that the anonymous statement is about Smartmatic, not Dominion. Saying that Dominion was a front for Smartmatic was false and, in context, defamatory. Giuliani might respond that he was relying on Powell. If so, the company will have to prove that this was itself a reckless disregard of the falsehood of what she had to say.

Far be it from me to defend Giuliani’s statements, which were not only false and defamatory to Dominion but contributed to the spread of a conspiracy theory that has done fundamental harm to our democratic system. My point is only that, to win it libel suit, Dominion will have to overcome a high burden of proof set by the First Amendment.

Nonetheless, this may be the rare case where a plaintiff is able to do so. Giuliani may survive this lawsuit, but he will have to fight hard to win. Citing lost business and irrevocable harm to its reputation, Dominion is asking for more than $1.3 billion in compensatory and punitive damages. If Giuliani loses, even a tiny fraction of the damages sought would be ruinous.