Libel laws on a new frontier

The Internet has truly become a wild kingdom, a constant source of inflammatory statements ranging from mildly critical to over-the-top ridiculous. Thus, the question arises: “Isn’t there something called libel? Why aren’t more lawsuits filed against Internet “trolls”? And what about the new breed of “gotcha” TV journalists who deal more in opinions than facts?
This issue has moved front and center now that voting machine companies Dominion and Smartmatic have filed billion-dollar lawsuits against Donald Trump lawyers Rudy Guiliani and Sidney Powell for making false and malicious statements and Fox News for sympathetically reporting them.
The Trump campaign, and its legal affiliates, claimed quite loudly and repeatedly that those companies were guilty of somehow altering votes in such a way as to give Joe Biden an unfair victory over Trump in the 2020 presidential election. This contention was the linchpin of a campaign to further inflame Trump’s voter base and perhaps overturn the election itself.
Which proved a real problem for both Dominion and Smartmatic. According to CNN: “In its lawsuit, Smartmatic detailed some of the ramifications: a wave of threats against its employees, a ‘meteoric rise’ in cyberattacks, and hundreds of millions of dollars in projected revenue losses.”
The CNN article quoted Smartmatic CEO Antonio Mugica: “The disinformation campaign that was launched against us is an obliterating one. For us, this is existential, and we have to take action.”
So why aren’t similar suits filed all the time? Mostly because 1.) Internet trolls and critics can often hide behind anonymity, especially if a statement is made from a public computer; 2.) Even if they can be identified, these individuals generally don’t have the personal resources to make suing them worth the trouble, and 3: In order for a lawsuit to stick, it must prove that the offending statement is false, and that the person making that accusation knew that it was false but said it anyway — and with malice.
If you feel you’ve been libeled, though, it probably won’t help to call the police. While some states do have laws on the books against libel, defamation and slander (damaging statements delivered verbally), most of those apply only in connection with other illegal conduct. That’s probably a good thing, because if state, federal, and local governments were required to prosecute all such cases for free, the court dockets would be flooded.
Generally speaking, libel and defamation are civil matters, and the prospect of finding and hiring an attorney to pursue such a lawsuit can be daunting. An attorney who operates on a percentage of the damages won is not going to bother suing just anyone.
Meanwhile, it is still permissible to express a negative opinion about someone or something, as long as it is clearly stated as an opinion. As Jim Probasco points out on the “Investopedia” Website: “If you post a comment saying, ‘That guy is a loser,’ you have made a statement that is not verifiable one way or the other. It is simply your opinion that the object of your comment is someone of low achievement.
However, if you post, ‘That man has never held a job,’ you’d better know he has never been employed, or you may find yourself on the receiving end of a defamation lawsuit.
In addition, the comment or purported information in question must be demonstrably damaging to someone’s reputation. The newspaper for whom I worked was once sued because it misidentified the photo of a man charged with a crime. Yet since the photo was actually of another man charged with an even more serious crime, the “damaged reputation” approach didn’t fly.
In the case of the Dominion and Smartmatic suits, it would probably be impossible to prove beyond the proverbial “shadow of a doubt” that these companies have never altered votes at any time, for anyone. On the other hand, there appears to be no proof that they did that in 2020, and enough proof to rebut the rumors spread about them. That’s why a number of legal experts have predicted that the companies have a good chance of succeeding.
The bar for libel and defamation has always been set higher for those individuals or entities considered public figures, including politicians, actors, professional athletes, etc. Being able to criticize those in power is an important component of democracy and the First Amendment, as long as the criticism is either verifiably true or clearly an opinion. This standard might also apply to someone in the “fifteen minutes of fame” category.
Obviously, no one truly expects Sidney Powell or Rudy Guiliani to be able to cough up a billion dollar settlement. If they lose, the dollar amount will be something to be negotiated. But at a time when political rhetoric is becoming more and more outrageous, and some media outlets (like Fox) obviously identify with a particular political slant, repairing the free speech guardrails of libel and defamation can’t be such a bad idea.
Darrell Laurant
Founder at Snowflakes in a Blizzard | + posts

Darrell Laurant is a veteran journalist who previously worked at the News & Advance (Lynchburg). He published over 7,000 pieces in three decades. Darrell has covered papal visits, the Olympics, American sports, and political issues in Virginia. He has also written a variety of books, including "Inspiration Street: Two City Blocks that Helped Change America."

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