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We've lived through an era where people understand how important it is for them to appreciate the way that government works and that the criminal justice system works because democracy is fragile and in some cases it hangs by a very slender thread. So what I'd really encourage your listeners to do is to consider this part of their work. You know, one of the most important jobs we all have is private citizen of the United States. And it's not something that we should take for granted.


It's something that we really have to work at every day. So keeping ourselves informed, whether that's reading or listening, however we do it, but really engaging on these these ways, you know, we've heard so many times in these last few years and Franklin walked out of the constitutional convention and he's asked by a woman, what form of government have you given us, Dr. Franklin? And he says, a republic, if you can keep it.


Well, if we're going to keep it in large part determines or depends on how well informed we keep ourselves. This is really where democracy lives, and I hope people will stay engaged. Welcome to Political. I'm Ron Kessler. In early February, Smartmatic, which is an election technology company that was used in just one county during the twenty twenty election, filed a two point seven billion dollar lawsuit against Fox News. Three of their hosts, Maria Bartiromo, Lou Dobbs and Jeanine Pirro, as well as two of Donald Trump's lawyers over false statements the attorneys made during appearances on Fox News shows.


Now, because this case could be so significant. I wanted to get a better understanding of what the lawsuit could mean for how cable news and news in general manages misinformation on their airwaves. So today I am thrilled to talk to Joyce Vance to get a better understanding of this case and the impact it could have moving forward. Joyce is a distinguished professor of the practice of law at the University of Alabama School of Law and a legal analyst for NBC and MSNBC.


She also served as United States attorney for the Northern District of Alabama from August of 2009 through January of twenty seventeen. After being unanimously confirmed by the Senate prior to being U.S. attorney, Joyce served in the criminal and appellate divisions of the U.S. Attorney's Office and was the chief of the appellate division. She's a graduate of the University of Virginia School of Law and Bates College, and she's a co-host of the podcast hashtag Sisters-in-law. Joyce, thank you so much for joining us today.


Thank you for having me.


So before we dig into the substance of this lawsuit, I thought it might be helpful for our listeners if you could just set the table with a general explanation of what exactly defamation is, how defamation lawsuits work, what their general boundaries are, and how the merits of those types of cases are typically weighed against speech, protected by the First Amendment. And then we'll dig into the lawsuit. So let me talk about that a little bit by telling you about a case that I worked on as a young lawyer in Washington, D.C., a evangelical Christian figure.


Pat Robertson was running for president during his campaign. A sitting member of Congress and a former member of Congress made some comments in the media about his Korean War record. Both the former member of Congress and Mr. Robertson had served in Korea at about the same time, and the former member of Congress alleged that Robertson had been, in fact, pulled off the boat in Japan, saved from what was a very short life expectancy for young first lieutenant in Korea at that point in time by his father, who was a senator in Virginia.


And so, Robertson, in the middle of a campaign, obviously a public figure which matters. We'll talk about that in a second. Files a suit for defamation, saying you've said something about me that's false. You can't do that. And I want damages. So here's what happens in these kind of lawsuits. There are a couple of issues. First of all, there's the issue of whether or not the statements that were made were actually false. You can't be defamed by someone who's who's telling the truth.


And for a long time, truth was a defense. But that's no longer the law. For the last couple of decades, it's actually been part of the plaintiff's burden to prove that the statements that are being made that the plaintiff says are defamatory are actually untrue. So plaintiffs have to come into a lawsuit for defamation, for libel, for slander. Libel is oral. Slander is written. I hope I just said that in the right order because I haven't looked at them for a while.


But I think it's I think it's the other way around, actually. Yeah. As I said.


Oh, golly. OK, I need more coffee. So this issue of whether or not the statements that the plaintiff is concerned about are actually false is really a threshold matter in a libel lawsuit because you can't be defamed by the truth. It has to be a statement that's false. And the plaintiff, the person who's bringing the lawsuit now bears the burden of proving that. But there's an interesting little nuance here. It depends on what kind of person the plaintiff is.


If the plaintiff is just my neighbor down the street who believes that they've been defamed, then really all they've got to do is prove that there was some sort of negligence in promulgating the laws. But if you're a public figure, if you're say you run someone who's a well-known social media person and podcasts, then you would actually have to prove a little bit higher of a state of knowledge on behalf of the defendants. You would have to show that they had actual malice, that they made the statements knowing that they were false or with reckless disregard for their truth.


And that's an interesting issue as we'll see that play out in Smartmatic. So the final thing that you asked about here is First Amendment and and whether there's a First Amendment right. And that's often an issue in these cases, particularly when you have a media defendant. But the reality is that state law and these are all state law matters primarily does give people the right to sue for compensation if they're defamed and if it damages or disparages their business. So there is some play here with the First Amendment depending on the type of case.


But remember that your First Amendment right is only the size of the government. So you don't have a free speech. Right, as compared to me. Your free speech, right, is to keep the United States of America from somehow abrogating your free speech rights, from interfering with them. And so when this comes up in a defamation context, it's in a different way than the way that people sometimes think it might surface. Got it.


So with that background, then, can you help us understand what the scope of this two hundred and seventy six page complaint is? Exactly what is Smartmatic alleging that Fox News and and their hosts and the Trump lawyers actually did?


So Smartmatic lawyers did their legal research and they clearly understood the burdens that they faced as the plaintiff in this case. That's why this lawsuit is so lengthy. And they they in great detail allege not just the defamation, but also the impact on them as a corporate entity. So the suit starts by talking about false claims and it's. About a claim made by Sidney Powell, who was at one point one of Donald Trump's lawyers, we all remember the cracken and she's on Lou Dobbs, another defendant show on on Fox News in November.


And she makes this incredible claim that Hugo Chavez, the deceased president of Venezuela, was involved in creating technology for a voting machine company called Smartmatic and that he was involved in designing it in a way that meant that votes that were processed using the Smartmatic technology could be changed undetected. Of course, Mr. Chavez died in twenty thirteen and had nothing whatsoever to do with Smartmatic. Apparently, the truth was not a barrier here. And then the lawsuit also cites sort of conversations on the Fox programs that that Smartmatic says helped spread claims that Smartmatic owned Dominion Dominion is another voting machine company and there's no relationship between the two apparently.


Additionally, there, at this same point in time, we've got Powell and Rudy Giuliani, another defendant, talking about how pervasive the impact of the Smartmatic fraud was. And in fact, Smartmatic technology was used only in Los Angeles County during the twenty 20 election. So you have this cascade of false statements and untruths. And Smartmatic really doesn't do a lot of detail to talk about how the false claims jeopardize what it characterizes as its multibillion dollar business pipeline.


So those are the damages that it talks about incurring as a result of this conduct. It's really a well researched and beautifully put together complaint by Smartmatic.


OK, so you mentioned Dominion. And before we go further on the Smartmatic case, we know that there's also a lawsuit that's been filed by Dominion against Sidney Powell and Rudy Giuliani. But we're well, I just want to set that aside for a moment so that our listeners understand these are two completely separate cases brought by suits brought by two completely different voting technology companies. Can you briefly summarize what the Dominion lawsuit is and why why that's different from what Smartmatic is doing?


So Dominion is a different entity, talking about different sort of claims, but both get the same ball of wax. And here's the interesting thing about a libel lawsuit. In order to bring a charge of defamation, you have to reach out to the person that you want to sue, the business that you want to sue first. And you have to say, listen, you've said things about me that aren't true. I'd like to have you retract your statement.


If you don't retract your statement, then I'm going to file a lawsuit against you. So the law makes potential plaintiffs jump through this additional hoop just to make sure that no one is unfairly surprised. And so the interesting thing in this setting is that these plaintiffs, Dominion and Smartmatic, reach out and detail the claims that they're going to bring and ask for a retraction. And in neither case does a retraction. That's the only way you get lawsuits in this area.


So that is, I think, an interesting commonality in the process and between the two cases. Got it.


So back to the Smartmatic case. I think one of the characteristics of this suit is the repetition of the lies. So Smartmatic talked about how these false claims about changing election results were made over and over again. It wasn't just one time. So how does that repetition of false information make this case different from other defamation lawsuits?


So it makes the case stronger for the plaintiff? It's not clear whether Smartmatic is a public figure or whether they're just an ordinary company filing a lawsuit. But Smartmatic in the pleadings that they filed, they take that extra step. They sort of act on the unspoken assumption that they might be a public figure. And they allege that there is actual it's not even a reckless disregard for the truth. It's that Fox and the other defendants actually knew that these statements were false and permitted them on the air and made them nonetheless.


And so this repetition of the number of times, the number of false statements, their complexity and as with Chavez, just their rank unbelievability. Right to anyone who has even a casual association with the truth, this tends to make it much more difficult for Smartmatic to say, oh, you know, now that we've checked, we made a mistake, that one tire for Fox to say, no, we made a mistake that one time. Clearly, it's not a mistake when it happens time after time after time with multiple outrageous lies going on.


It's just funny because you say casual association with the truth, you would assume that Fox News as a quote unquote news channel, would at least rise to that threshold. But let's let's talk about the burden of proof here, so in this case, what will smart matics attorneys actually need to prove in order to win?


So they've charged defamation and disparagement. And these are state law claims in New York that defamation cases function on a on a pretty common set of elements of proof across these statutes. And here's what it really comes down to. You've got to prove a false statement purporting to be a fact, right? It has to be not something that's equivocal as to whether or not the speaker believes that it's true. It actually has to be presented as a fact. So we've got that here.


In fact, as you point out, we've got multiple ones. Then that false statement has to be communicated to a third person. Here we've got the megaphone of all megaphones, a national television network. In other cases, it could be something as simple as me repeating a false statement to you. But this is obviously a much easier case to prove because of the way that the stories are told. And then you've got to have this issue that we've been talking about, fault or state of mind.


You've got to prove at a minimum the false statements were made negligence, but here at least arguably with actual malice. And then the last thing that the defendant has to prove, and typically this can be really an impediment for plaintiffs. And one has to wonder how well Smartmatic pleadings will hold up in this regard. But you've got to prove damages. You can't just say this happened and it was bad. You've actually got to prove damages or some kind of harm that's caused you.


So here, Smartmatic talks about damages to their pipeline of business and that that's likely going to be one of the and we should talk about procedure, talk about what comes next. But if this case is pursued, that that could become one of the fighting issues in a trial.


So why don't we take a moment to talk about that? Because I want to come back to the specific costs in a minute. But let's talk about procedure. Why don't you go ahead.


So the lawsuit gets filed. The next thing that happens is that the defendants have the opportunity to file a motion to dismiss, essentially saying even if you read this complaint in the light most favorable to the plaintiffs, it fails to state a legal claim for relief. And so in the last week or so, Fox News and its three hosts had filed a motion to dismiss that. I'm going to go out on a limb here. Usually my crystal ball for what judges will do is not get my husband as a judge, as a state court judge.


And I have learned that judges are unpredictable and mercurial, and it's always bad to think that, you know, what they're going to do because they never follow suit. But I'm going to predict that in this case, the judge will deny the motion to dismiss because these complaints clearly state a good legal claim for relief. And that will get the case into a stage of proceedings called discovery. That means the parties get to propound formal questions to each other that have to be answered.


They can ask for documents and other things. In fact, early on in these proceedings, Smartmatic sent out a notification saying, we're going to sue you, don't destroy any of your documents. You have to hold on to everything. There will likely be a flurry of depositions. I would think that we would see Fox News hosts being deposed and maybe folks on the production side and business side of Fox News to determine what they knew and when they knew it.


By the same token, the defendants have the opportunity to depose Smartmatic, I guess that they can try to depose Chavez. Good luck with getting that deposition right, that they can they can seek whatever evidence they want to seek to to make out their defenses and to try to establish that what they broadcast was, in fact, true.


I see. OK, so you mentioned that the hosts will be potentially deposed if the suit proceeds. Can you talk about why Smartmatic would choose to name the specific hosts at Fox as opposed to just the News Channel, the corporation itself? Yeah, so it's an interesting situation here and there are a lot of strategic decisions that go into naming your defendants. So obviously the first tier of defendants or are the lawyers who are on Fox News making these statements. And I suppose that you could theoretically just sue them and not involve anyone else.


But a decision was made. And one assumes that this is because Smartmatic believes that the evidence will show that the hosts, these three hosts, but also the network itself, was aware of the falsity and disregarded it. So I have not seen anybody for Smartmatic discussed and wouldn't expect them to why they focused on these three hosts at Fox. But here's my guess. These are hosts from the news side of Fox programming. They're not the opinion side. And remember that I told you that one of the things that plaintiffs have to show is that statements are offered as true statements in order to be defamatory.


So the fact that these statements were proffered on news broadcasts would seem to be consistent with that sort of burden of proof and would dictate to naming them as defendants as opposed to folks who are more on the opinion side of Fox as operation.


So I'm so glad you brought up this distinction between news and opinion, because I think that's I think it's a distinction that is maybe not always very clear to viewers on a network like Fox News. But I want to dig into this for just a minute because so last September, a federal judge dismissed a defamation lawsuit against Fox filed by Karen McDougal, the former Playboy model. And in that ruling, the judge wrote that Tucker Carlson's comments were rhetorical hyperbole and opinion commentary intended to frame a political debate that's in air quotes, which meant which meant that they were not actionable as defamation.


So you got at this a little bit, but can you help us understand the distinction between news and opinion on a cable news channel? So here's something that we want to do in this country. We really believe in a free marketplace of ideas and in fact, our society thrives on a free marketplace of ideas. It's one of the hallmarks of American democracy is that you can stand up and express your opinion and you have a right to do that. And no one can sue you for expressing your opinion.


And so that's why there's this sort of bright line distinction between opinion and fact. And we see that play out in the McDougal case. We've seen that play out in other cases involving political figures. There's an old 1980s case involving Lyndon LaRouche, who was another sort of a third party political candidate. And LaRouche had a bit of a mean bent to him and ended up suing folks at the Anti Defamation League who had called him anti-Semitic and ended up suing NBC, where some of that was repeated and this same sort of notion played out that that it's OK, that you can express your opinion.


But ultimately at trial, because NBC and the folks at the ADL were only expressing an opinion, you couldn't successfully sue for defamation over that. If, however, somebody had presented it as news, I suppose you could make the same argument that Smartmatic is making here. But look, something that we have to be careful about is not deciding whose opinion we agree with and whose opinion we disagree with and wanting to see the outcome in cases like this turn on that.


Right. I mean, Smartmatic has a good cause of action so long as they can prove that this was presented as news. If this was a talk show format where it had been really clear that some people were saying, well, this is all stuff that I think and maybe it's true and maybe it's not, but we should really talk about this. That would be a whole different scenario and it should be a whole different scenario. I see.


So let's talk about the broader cable news industry and how could a potentially multibillion dollar decision and this is a big I mean, as defamation suits go, I'm assuming that this is a monster of a. Yeah. So how could this decision impact what cable news outlets are willing to broadcast? I think this is one of the really central questions, potential implications of the suit. So take it away.


So a couple things. One is that the plaintiff will have to prove up their damages with some specificity. So two point seven billion might be, as they say, a bargaining number. And look, it's not a foregone conclusion that this case goes to trial sometimes. Once a couple of dispositive motions get denied, defendants decide that they want to settle a case and there can be a lot of advantages. So maybe this case doesn't go all the way forward to a trial setting.


So what we're really trying to understand is the impact this could have on how what cable news outlets are willing to broadcast, but then really I'd really like to get your take on even beyond cable news outlets, what this could mean for the information environment in general, because we know it's been such a problem in twenty twenty and it's going to be going forward.


I think this is the key issue that this case presents. It's not the key legal issue, but really the key social dilemma that it forces us to confront. Everybody's concerned about fake news and the promulgation of information on Facebook that your grandma reads and thinks is gospel. And it turns out that it has absolutely nothing to do with reality. That's a societal problem that we need to address. By the same token, we have to be careful not to over react.


We don't want to be so concerned with tamping down on fake news that we cause, let's say, a Fox News to become deeply concerned about what use it presents on its new show. And so the public isn't exposed to legitimate views and legitimate news. So we have to be very careful about balancing. I guess in the first instance here, this is going to be up to a judge in the state of New York. But having issued that caution, I think that there is a lot of potential here to control the outer limits of crazy talk.


Right, because what was going on, what Smartmatic alleges is stuff that's just basically untrue, saying that they were responsible for stealing votes nationwide when they were only operating in Los Angeles County. That's a demonstrably false sort of narrative that was spread about Smartmatic. Finding a way to constrain people from promulgating those kind of untruths could be a really important start. But perhaps more important than a legal ruling that says, you know, you can't promulgate knowingly false things about elections.


What what might make sense here is getting people to focus on the fact that not everything that they're being told is true and helping us think and maybe this is a project for civic education. That's right. Where I always land, but that the Internet has forced our society to evolve in a lot of different ways. There are a lot of things where the Internet has grown faster than our society's capacity to deal with it in an intelligent way. We see that happen in the law all the time.


For instance, in criminal law, Internet stuff happens, crimes happen. The criminal code isn't equipped to deal with it. It's playing catch up. I think this area of what sort of information we're bombarded with and how we determine whether or not it's true is another one in an extraordinarily serious impact of what we see online. Perhaps we're finally at a point now where we begin to deal with that in intelligent ways. You know, we've largely ceded that territory to either European legislation.


The Europeans are ahead of us. Right. Or to letting companies like Facebook and Twitter self regulate. Maybe it's time for us to evolve. A better model in this case is sort of the leader in that direction.


So I'm glad you brought up the Internet because I think that raises a question. I think it would be helpful for for our listeners to understand the distinction between how broadcast traditional broadcast media are regulated by the FCC, the Federal Communications Commission and Internet media, and the way this information spreads online, because we know we know just how pervasive and pernicious fake information can can be online and how it spreads much easier than the truth. And I wonder if you could just explain that, explain the difference between responsibilities of corporations, which primarily facilitate the spread of information online versus broadcast media, which are which are regulated by the FCC and the distinctions legally for them.


So I'm by no means a media law expert. But let me paint with a very broad brush here. If you're a traditional media company, you do fall within FCC regulation and you do have some accountability. You also have accountability in lawsuits like this. But we now live in a new world where the overwhelming majority of people, something well north of 50 percent of people get their news from traditional news sources. I'm in my sixties, so I think I can say the days of having three networks, which is what I still think of, people get get three news networks.


They read the paper of record. They read their local paper. None of that is really going on anymore. And so because this news can be so easily cut up and put on to Facebook and other social media platforms. Put out that way with virtually no regulation at this point other than what the media companies themselves choose to impose. It's really a Wild West for information trafficking, and that fuels the problem in a lot of ways. We could debate whether or not this issue would have gotten traction if it had only been through a television media.


At this point. I think that that's you know, it's it's hard to speculate one way or the other about that. But certainly you're absolutely right to point out that social media and media platforming gives this whole issue of information circulation are really added dimension that we just don't address very well.


Yeah, that's something I know we're going to be returning to on the on this podcast, because it's it's it's such a major problem for us moving forward. But let's go back to the the case for just a moment. So the hosts Pierro, Bartiromo and Dobbs are seeking a dismissal of the lawsuit on the grounds that they were covering a news story and which which would be the allegations of voter fraud. So can you help us think through how important it's going to be in this case?


Two of the responsibilities of the news hosts have in dealing with false statements and the statements that their guests make on their shows.


Yeah, I mean, that's really the issue here, right? Are they accountable for what they said on their air? And that will turn in large part on whether they knew what was being said was false and continued to put it on as though it were fact. So when I say it's unlikely that their claims will be dismissed based on these motions, that's because at this preliminary stage, the judge will largely be looking at whether these claims, if they were true, would be sufficient to state a legal cause of action.


And it's only down the road at a stage called summary judgment, where the judge begins to look at the evidence in the case that these claims might become ripe for dismissal. And and so that's the point at which we would really see the news hosts offer these defenses. They might be able to get the claims against them dismissed if they're able to put on a compelling case that they were simply presenting these people, telling the news that they don't hold any additional liability.


But based on some of the earlier cases in this area, it's a little bit difficult to think that they can avoid liability completely. So we just watched a former president get acquitted for inciting an insurrection during an impeachment trial. And we know we know that there's at least the Jean Carroll defamation lawsuit that's ongoing right now. And one of the things I'm wondering is sort of the use of these civil suits as a means of accountability. Could that be one way to hold Trump accountable for the lies that he told?


You know, it's an interesting thing, and it's certainly not unique to the former president that politicians sometimes are a little bit cavalier with the truth when they talk to the public. And obviously, there's no legal cause of action for being lied to by your elected representative without more. And I suppose the question is whether there's more with Trump. So let let me just make clear that my bias in this area is a First Amendment bias. And I think we have to be very careful to be a country that preserves a free marketplace of ideas, especially when we're talking about our elected representatives.


The Aegean Carroll case, though, is absolutely fascinating. And that's that's a lawsuit that I'm watching with a lot of interest, because this is a case where a woman claims that she was raped decades before President Trump became the president. He then makes a very unflattering comments about her and says that she's lying and she turns around him and sue them. And she's very capably represented by an exceptionally good lawyer. They have not missed any opportunity to push forward.


And you may recall that sort of notoriously after the lawsuit was filed. Well, William Barr was still the attorney general. He actually inserted the Justice Department or attempted to do that to insert the Justice Department as former president. Trump's lawyers saying that the statements that he had made, the alleged libel was made in the course of his duties as president. That was, of course, a head scratcher for anyone who and who like me. And my former job as US attorney would often have to make decisions about whether or not government employees were entitled legal representation on the government's nickel because they were sued over stuff that they did in the course of their official duties.


And ultimately, the court said, no, no, this was not part of his official duties. DOJ is not going to come into this case as the lawyer. That case exposes the former president to, I think, to real risk. And it's civil risk, right? It's not a criminal case. Nobody goes to jail at the end of it. It's a civil lawsuit for monetary damages and because it involves defamation also for an apology. And so that's interesting.


And perhaps that might just be the first lawsuit we see in that area. Other people might decide to follow suit insurrection. I think that that's a different issue of whether or not there could be civil lawsuits over liability for damages people incurred. That's a tough lawsuit, right? Because there are all sorts of issues of cause and proximate cause. Without knowing more than we know right now, I think it would be hard to tag the former president as solely responsible or significantly responsible so that he would have to assume legal liability.


There may be better, better civil lawyers out there than me with better theories.


So before I let you go, is there anything else related to these cases, particularly the defamation cases and the consequences for them moving forward that you're that you are acutely paying attention to for the for the long term implications? What else are you watching?


These cases really are important and for the reasons that we've discussed, because they may well impact the scope of news that media services think it's safe to provide to us. And I just cannot say how important it is to preserve the marketplace of ideas. But there's actually something else going on here. We've just lived through a really interesting four years where people who weren't lawyers, I mean, at one point our plumber came over and he was doing some work for us and we were talking and he started asking me how the grand jury worked.


And we've known each other forever. And we've never had a conversation about my job ever in all the years that he's been over here. And it really made me reflect on the fact that for twenty five plus years I was a federal prosecutor and we did some pretty amazing work to protect the community and there was relatively little interest in that. Now we've had I think we've lived through an era where people understand how important it is for them to appreciate the way that government works and that the criminal justice system works because democracy is.


Fragile and in some cases, it hangs by a very slender thread. So what I'd really encourage your listeners to do is to consider this part of their work. One of the most important jobs we all have is private citizen of the United States. And it's not something that we should take for granted. It's something that we really have to work at every day. So keeping ourselves informed, whether that's reading or listening. However we do it, but really engaging on these these ways.


You know, we've heard so many times in these last few years and Franklin walked out of the constitutional convention and he's asked by a woman, what form of government have you given us, Dr. Franklin? And he says, a republic, if you can keep it. Well, if we're going to keep it in large part determines or depends on how well informed we keep ourselves. So I hope everybody will. You know, Smartmatic, it's a case about a machine producing company that lost a couple billion dollars.


Maybe that doesn't seem so interesting, but this is really where democracy lives, and I hope people will stay engaged.


That is so wonderfully well said. I couldn't have said it better myself. Joyce, before I let you go, where can our listeners find you on the Internet? Well, I'm on Twitter, where I'm at Joyce White Vance, but I hope that your listeners will listen to one more podcast in addition to yours and listen to me at hash tag Sisters-in-law. We drop every Friday afternoon. Thank you so much for being here, Joyce. Thank you for having me.


Thank you to everyone at home for listening if you have any questions or advice for us. We'd love to hear from you. We have a new email address and you can reach us at podcast at Politico Dotcom. If you enjoy the show and you find this work meaningful, you can also help us by reading and reviewing the show wherever you get your podcasts and by sharing this episode with anyone you think may find it interesting or useful. And make sure you're following us on Twitter at Political Jackpot.


I'm Ron Suslow. I'll see you in the next episode.