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Happy Monday! Dominion Voting Systems is suing Rudy Giuliani for $1.3 billion.
As Akiva notes, the legal question is going to boil down to something known as "actual malice."
That's a tricky concept for nonlawyers (and often for lawyers) so an explainer might help.
What I'm going to do with this thread is a bit different from normal - I'm going to start by explaining the underlying law so that you can see why lawyers are a little skeptical of the odds of success, and only look at the complaint after that.
So let's start with the most basic basics:
If you want to win a defamation case, you have to prove:
(1) that defendant made a false and defamatory statement about you;
(2) to a third party without privilege;
(3) with the required degree of fault;
(4) causing you to suffer damage.
For Dominion's defamation cases, proving 1 and 4 is easy. 2 is, in the case of the lawyers they're suing, slightly more complex but not hard. And 3 - degree of fault - is really really hard to prove.
A false statement of fact that is defamatory is a slam dunk element here - all the fraud allegations against dominion are totally banana-pants. They are also allegations which are clearly going to harm Dominion's reputation.
As Akiva notes, the legal question is going to boil down to something known as "actual malice."
That's a tricky concept for nonlawyers (and often for lawyers) so an explainer might help.
So Dominion sued Rudy for defamation. How are they ever going to allege actual malice? https://t.co/p8d3flDkGm
— Akiva Cohen (@AkivaMCohen) January 25, 2021
What I'm going to do with this thread is a bit different from normal - I'm going to start by explaining the underlying law so that you can see why lawyers are a little skeptical of the odds of success, and only look at the complaint after that.
So let's start with the most basic basics:
If you want to win a defamation case, you have to prove:
(1) that defendant made a false and defamatory statement about you;
(2) to a third party without privilege;
(3) with the required degree of fault;
(4) causing you to suffer damage.
For Dominion's defamation cases, proving 1 and 4 is easy. 2 is, in the case of the lawyers they're suing, slightly more complex but not hard. And 3 - degree of fault - is really really hard to prove.
A false statement of fact that is defamatory is a slam dunk element here - all the fraud allegations against dominion are totally banana-pants. They are also allegations which are clearly going to harm Dominion's reputation.
After thinking on it over the weekend, I have a couple of thoughts about this panel (both a bit negative + a tad contrarian it seems, though maybe just among the 6 panelists):
1. A constant refrain I hear from public opinion researchers is that the public wants (& practitioners should focus on) public opinion polling on policy & political 'issues', not election / candidate polling
The argument is reminiscent of anti-fast food dietary rhetoric. People should / do want issue polls because this is the 'healthy' way to engage in public opinion as opposed to the "guilty pleasure" of election polling
I think people are drawn to election polling because who ends up being an elected official is insanely consequential to the lives of many Americans. Political leaders also help "determine" the ideological focus of our politics, especially among co-partisans
It makes sense that researchers love "issue polling". We are really deeply interested in politics and what the public thinks and it's repercussions on politics. It also adds important extra dimensions to our work, especially when elections aren't ongoing.
What is the future of public opinion polling? Register for tomorrow\u2019s live panel of #polling, #media, and #surveyresearch experts as they discuss what we can and should expect from #publicopinionpolls. https://t.co/6YHlSinIez @pete_enns @doug_rivers @jennagiesta @pollcat pic.twitter.com/Ucq9rSsFkX
— Roper Center (@RoperCenter) January 20, 2021
1. A constant refrain I hear from public opinion researchers is that the public wants (& practitioners should focus on) public opinion polling on policy & political 'issues', not election / candidate polling
The argument is reminiscent of anti-fast food dietary rhetoric. People should / do want issue polls because this is the 'healthy' way to engage in public opinion as opposed to the "guilty pleasure" of election polling
I think people are drawn to election polling because who ends up being an elected official is insanely consequential to the lives of many Americans. Political leaders also help "determine" the ideological focus of our politics, especially among co-partisans
It makes sense that researchers love "issue polling". We are really deeply interested in politics and what the public thinks and it's repercussions on politics. It also adds important extra dimensions to our work, especially when elections aren't ongoing.
If not DT Jan 6 attack on US Capitol fits under:
TREASON, SEDITION, & SUBVERSIVE ACTIVITIES
2381.Treason.
2382.Misprision of treason.
2383.Rebellion or insurrection.
2384.Seditious conspiracy.
2385.Advocating overthrow of US Gov.
2389.Recruiting for service against US.
1/
Sec. 2385. ADVOCATING OVERTHROW OF US GOV
Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory,
2/
District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or
Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes,
3/
edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or
4/
attempts to do so; or
Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any
5/
TREASON, SEDITION, & SUBVERSIVE ACTIVITIES
2381.Treason.
2382.Misprision of treason.
2383.Rebellion or insurrection.
2384.Seditious conspiracy.
2385.Advocating overthrow of US Gov.
2389.Recruiting for service against US.
1/
"Domestic terrorism is the only criminal category in the FBI where they can investigate you, but they can never charge you. There\u2019s no such crime... When the folks who are charged with protecting us say they can\u2019t do it, we should listen to them." \u2013 @FrankFigliuzzi1 #RealTime pic.twitter.com/Su0Agsj34q
— Real Time with Bill Maher (@RealTimers) January 23, 2021
Sec. 2385. ADVOCATING OVERTHROW OF US GOV
Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory,
2/
District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or
Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes,
3/
edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or
4/
attempts to do so; or
Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any
5/