The Latest Strategy Against Election Misinformation That Goes Viral: The Courtroom

March 11, 2021
Election 2020 WashingtonElection 2020 WashingtonJ. Scott Applewhite/AP Photo
A "stop the steal" sign seen at the U.S. Capitol in Washington after news that President-elect Joe Biden had defeated the incumbent in the race for the White House, in Washington, Saturday, Nov. 7, 2020.

Voting technology companies, like Denver-based Dominion Voting Systems, are using billion-dollar defamation lawsuits to try to repair damage to their brands and bottom lines from conspiracy theories that alleged they were involved in stealing the 2020 election for President Joe Biden.

Some see these legal fights as another way to take on viral misinformation, one that’s already starting to show some results. 

“This goes beyond hoping to stop the disinformation,” said attorney Steve Skarnulis. “The goal that we have is to hold people accountable.”

Skarnulis represents Dominion employee Eric Coomer, who remains in hiding after being threatened and falsely accused of manipulating election results. Coomer filed the first defamation lawsuit related to the 2020 election. Skarnulis hopes that in addition to helping Coomer clear his name and return to a normal life, the suits will also serve as a warning.

“I hope that it will shock media and other personalities who have the platforms they do, enough that they will be much more cautious about spreading disinformation.”

The list of people and organizations being sued for defamation based on their false election claims reads like a who’s who of former President Donald Trump’s supporters. They include former New York City mayor Rudy Giuliani, attorney Sidney Powell, MyPillow CEO Mike Lindell and pro-Trump media outlets from Newsmax to OAN.

In addition to Dominion, a second election company, Smartmatic, has also filed a defamation suit against Trump’s attorneys and conservative media outlets, with more likely to come.  

“I think this is a completely new way of tackling misinformation,” said journalism and public policy professor Bill Adair, head of the journalism program at Duke University. 

'We need to incentivize truth and we need to de-incentivize lying'

Fact-checking website Politifact, which presents research and analysis to misinformation being spread by public officials or circulating on social media, was founded by Adair. The next iteration of that effort is an experimental technology that is still being tested that would automatically offer fact checks in videos when a politician speaks.

“My hope is that over time we can begin to show people what's true, and what's not, using different methods, using different kinds of ways of displaying the content,” Adair said.

He does worry that using defamation suits to combat untruths spread by media outlets could become a weapon against journalists just doing their jobs.

“As a journalist, I'm a little bit nervous. The idea of using defamation lawsuits makes us a little bit concerned.”

But even with that discomfort, Adair has come to believe defamation lawsuits do have a role to play.

“The basic concept that I'm coming to embrace is that we need to incentivize truth and we need to de-incentivize lying,” he said. “Money is what matters to a media company, and so a defamation lawsuit is a big way to do that. And so it's going to get their attention.”

Lawmakers want media literacy to be part of the solution

Colorado legislators are also growing increasingly concerned about the problem of misinformation. There are bills moving through the state legislature that attempt to equip students for the information free-for-all they’re inheriting. The policies would increase media literacy training and strengthen civics education in schools. 

“It’s not a partisan issue; there are bad actors on all sides of the fence,” said Democratic state Rep. Lisa Cutter of Jefferson County, the main sponsor of the media literacy proposal. “You can’t legislate that adults take media literacy. Kids are so adaptable and this is a new frontier for us. They’re walking around with pocket computers and accessing information all day long.” 

Cutter said the goal of her bill is to teach students the difference between fact and opinion, and how to determine what’s credible. 

Republican state Sen. Don Coram of Montrose is another sponsor of HB21-1103 as well as the civics instruction bill. He said he gets frequent reminders of the need for more education on the fundamentals of how the government works.

“I get so many emails, so many phone calls. They have no idea what a state senator does,” Coram said. “They have no idea the difference between federal and state, and frankly, they don't know the difference between local and state. We have an electorate that gets all their information on social media and it's not always correct. So let's maybe let the children teach the parents.”

Defamation lawsuits seem to have an impact, but they're not a one-size-fits-all strategy

An anchor for Newsmax walked out on a live interview with My Pillow CEO Lindell when he started making unsubstantiated claims about Dominion voting machines. Fox News, the Fox Business Network and Newsmax also aired segments that contradicted the disinformation their own hosts had amplified.

But defamation lawsuits do have downsides, including that they’re difficult to win. Plaintiffs need to show the person they’re suing knew a statement was false when they made it, or had serious doubts about its truthfulness. 

As the former in-house counsel for the New York Times, George Freeman spent three decades defending people against defamation lawsuits. He now heads the Media Law Resource Center. He said media organizations have a First Amendment right to report the news, and that includes repeating what important people say, even if those statements are false.

Pro-Trump outlets are likely to claim that constitutional protection for their defense, but Freeman believes they may have crossed a legal line in their presentation of election fraud claims and in some instances applauding obvious falsehoods.

“It’s been depressing to me because I've kind of campaigned for that privilege (by news organizations) to be accepted,” Freeman said. “And now … they're trying to use it, but in a case where the speakers are irresponsible and the networks are not reporting them neutrally, but they're endorsing them.”

Still Freeman said he thinks the strongest defamation cases aren’t against the media companies, but against one of the people they gave a lot of airtime to, Rudy Giuliani.

“He made certain accusations on TV and in interviews, but then he didn't make those in court because I think he knew he would be subject to discipline and perjury. So that would seem to be pretty good evidence that he knew they were false,” Freeman said.

In a January call announcing the lawsuit against Giuliani, Dominion attorney Tom Clare said that the court can consider circumstantial evidence too. The complaint includes a detailed timeline that shows Giuliani continued to make his claims in the face of public assurances from election security experts, hand recounts and numerous court rulings rejecting fraud cases.

“As Mr. Giuliani was warned repeatedly, and as other people backed away from making these statements, the evidence at some point becomes overwhelming that this was not a good faith mistake,” Clare said.

While the current lawsuits could have an impact in this instance, experts on misinformation say there are several reasons why defamation cases aren’t a main tool in the fight against falsehoods. 

Many conspiracy theories don’t target a specific person or company, so there’s no one to launch a lawsuit. And when a victim does sue, a case can take years. 

The parents of children killed in the Sandy Hook shooting have filed multiple defamation lawsuits against Alex Jones of InfoWars. But after numerous challenges and delays, the cases are all still in the pre-trial phase. With Dominion and Smartmatic vowing not to settle before they get their day in court, this approach to fighting election misinformation may still be grinding forward even as the country enters the next presidential election. 

But for Adair and others, any effort to discourage future misinformation campaigns is worth pursuing.

“These lies brought our democracy to a breaking point. It's really scary what happened. So we need to think about what we can do to fix this broken system.”