Trump allies argue repeating unverified election fraud claims doesn’t amount to defamation in first hearing

October 15, 2021
Election 2020 WashingtonElection 2020 WashingtonJ. Scott Applewhite/AP Photo
Supporters of President Donald Trump carry flags and signs as they parade past 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.

What obligation do news outlets and public figures have to determine if a claim is true before they repeat it, especially if that claim has the power to ruin a man’s life?

That was one of the big questions raised in the first major hearing in former Dominion Voting Systems employee Eric Coomer’s defamation case against pro-Trump news outlets and public figures who amplified unsupported claims that he helped steal the 2020 presidential election.

Talk radio host Eric Metaxas argued it’s not his job to ensure that the people on his show can back up their claims. He said he doesn’t consider himself to be a journalist. 

“I’m kind of a fly-by-the-seat-of-my-pants guy. We don't have the budget, bandwidth or time to do anything like that,” said Metaxas in a deposition response to whether he did any background research or interviewed other sources before inviting Douglas County conservative activist Joe Oltmann on the show to air his allegations against Coomer.

“I don’t see that as my job,” said Metaxas. “I jump into a conversation with someone and they seem generally credible and I have a conversation.”

“Our argument is that it doesn’t shield him from responsibility,” said Coomer’s attorney Charlie Cain of Metaxas.

From claims on a podcast to stories on OANN

Coomer was a top employee with Denver-based Dominion Voting Systems when he came to Oltmann’s attention. Last November, Oltmann said on his podcast that he’d infiltrated a call with Denver-area Antifa members before the election and heard a man identified as "Eric from Dominion” tell the group that he would make sure Trump wouldn’t win.

As soon as that podcast hit, Coomer said threats quickly started to arrive, with people accusing him of treason and calling for him to be publicly executed. He went into hiding and has vehemently denied ever being on a call with Antifa or rigging the election.

In December, as the claims about him continued to spread, Coomer filed a defamation lawsuit against Oltmann, the Trump campaign, and a number of high-level surrogates and pro-Trump media outlets. In response the defendants filed a motion to dismiss, which was the subject of this week’s hearing.

Audits of Dominion equipment in Colorado and other states have found no discrepancies in their vote tallies.

Denver judge Marie Avery Moses didn’t indicate when she would issue a decision on whether the case can move forward, but gave attorneys two months to provide more support for their arguments. 

Much of the discussion during the two-day hearing centered on what legal standard should be used in the defamation case, based on whether Coomer should be considered a public figure and if it’s a matter of public concern. 

Defendants argued that they were exercising their constitutional rights to speak out on an issue of public interest — the integrity of the 2020 election — or simply quoting a source they felt was credible, and were not obligated to determine whether the allegation was true. 

“We never reported that Dr. Coomer rigged the election,” Blaine Kimrey, the attorney representing One America News Network and its White House correspondent Chanel Rion, told the judge. “We reported that Joe Oltmann said that Dr. Coomer said on a call that he had rigged the election.”

Kimrey defended the network’s decision to report the claim.

He said Rion was quoting Oltmann who she believed to be credible. “We engaged in diligent, professional reporting. It may not be your cup of tea, but it is for about half of the country.” 

Decorum order

Some of the defendants, including Metaxas, former Trump campaign attorney Sidney Powell, and Oltmann were there in person for at least part of the hearings. There was a notable law enforcement presence inside and outside of the courtroom, and early on, Judge Moses issued a court order on decorum and civility. 

“I will remind you all that in recent weeks your rhetoric has gotten more intense and less professional,” she told the parties. “And you all have been warned.”

The issue came up again at the end of the first day, when Coomer’s attorneys complained to the judge that Oltmann was violating her order by posting running commentary on the conservative social media site Telegram.

“‘Judge Marie Avery Moses is an antifa judge whose radical and disgusting nature tarnishes everything this country stands for. She is complete, evil trash,’” read attorney Trey Rogers from one of the posts. 

“It creates a security issue for us, for our client, and frankly, probably for the court,” Rogers said.

The judge told Rogers it was up to his side if they wanted to investigate further and file a contempt order with the court. Oltmann did not attend the hearing on the second day.

High bar for defamation claims

Coomer’s attorneys say the defendants published outrageous defamatory statements that “destroyed his privacy, safety, and reputation” and that “they avoided readily available information and purposely crossed the line to reveal a predetermined narrative.”

But in order for his case to succeed, Coomer’s side doesn’t just have to show that the statements made about him were false and hurt his reputation, but also that they were made maliciously. And they will have to meet a higher burden of proof if the judge agrees Coomer is a public figure or that the allegations were a matter of public concern. 

Coomer’s attorneys say he was a private citizen, until the false allegations of election rigging brought him unwanted notoriety.

“Being swept up in a controversy over an issue of public interest or concern, or being named in articles creating a public controversy and having to defend oneself against that, does not make one a public figure,” said Coomer’s attorney Steve Skarnulis. 

The defendants are using a relatively new Colorado law that is meant to protect journalists and engaged citizens from frivolous lawsuits that are meant to chill free speech.  

Coomer dropped Newsmax from the suit earlier this year, after reaching a settlement with the cable network. The company issued a retraction and apology and said there is no evidence that Dominion Voting Systems or Coomer manipulated election results in 2020.

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