Posted Mar 30, 2021

Defamation in the age of “fake news” – where are we in Tennessee?

By: John D. Kitch

            Lawyer Sidney Powell, at one time former president Trump’s lawyer, has claimed in several public forums and in several courts around the country that Dominion Voting Systems was part of a scheme to steal the presidential election.  She has stated that the company was created in Venezuela to rig elections for that country’s late leader Hugo Chavez and that the company’s machines have the ability to switch votes, stating in a Newsmax interview that she had a video in which Dominion’s founder bragged that the company “can change a million votes, no problem at all.”  Dominion has denied that there is such a video, and to date no such video has been produced.  Neither has there been evidence of the company’s alleged founding in Venezuela.

Dominion Voting Systems has sued Ms. Powell for defamation, seeking at least $1.3 billion in damages.  The company claims that “there are mountains of direct evidence that conclusively disprove Powell’s vote manipulation claims against Dominion” and that Dominion has been financially harmed by what it says are Ms. Powell’s false claims.

In response, Ms. Powell’s defense team has argued in a motion to dismiss the court proceeding that “No reasonable person would conclude that the statements were truly statements of fact.”  

In Tennessee, libel and slander are both forms of defamation; libel is written, slander is spoken.  The elements of a defamation claim are publication of a statement, with knowledge of the statement’s falsity, or with a reckless disregard for the truth, or negligence in failing to determine the truth of the statement.  Publication means communication of the statement to a third party.  For a defamation suit to be successful, there must be damage to the defamed party’s reputation or standing in the community.  Historically, under most circumstances the allegedly defamatory statement must be a statement of fact, not opinion.  However, the United States Supreme Court has eliminated this wholesale protection of opinion.  In analyzing the statement “In my opinion, John Jones is a liar,” the Court stated that the opinion may imply a false statement, that John Jones is a liar when he is not.

If the alleged defamer is a public figure or a governmental official, the standard for establishing a defamation claim is higher than for an ordinary citizen.  The statement must have been made with “actual malice,” or with actual knowledge of falsity or with reckless disregard of the truth.  It does not require malice that signifies ill will, hatred or spite.

Certainly, in the case of Dominion Voting Systems v. Sidney Powell, Ms. Powell has made herself a public figure by injecting herself into the controversy over the presidential election.  The outcome of the case will turn on whether the statements were actually truthful, Powell’s knowledge or lack of knowledge of the truth of her statement, whether she was reckless in their factual basis and whether her statements were statements of fact or merely of opinion (protected or not) and yes, whether a reasonable person would have believed them to be statements of fact.

So, the battle lines have been drawn.  Whatever the outcome at the trial level, the losing party is sure to appeal, so it will be some time before we have a final determination.  Although not a Tennessee case, this matter is likely to have implications on the laws of defamation as they are applied to the new wave of elections and “fake news” throughout the nation.