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Thank you. Would you agree to substitute "speculation and arguably political opinion" with "comparable behavior"? The reason being is that defamation does not apply to speculation and opinion, so by using those descriptors you're begging the question by claiming that Fox is already by definition the victim of a frivolous lawsuit.
If you want to maintain that Fox's behavior is indeed just "speculation and arguably political opinion", it would be helpful for you to be more specific. Here's the 194-page motion for summary judgment that Dominion filed. Of the statements Dominion claims are defamatory (and there are many) can you cite any examples that you'd dispute would be defamatory (either because it's opinion or for some other reason)?
This is an overly long MSJ, which instantly makes me suspicious. Particularly because the first section is a 45 page political screed.
Here is the first claimed defamatory statement, thus it should be the best one:
Bartiromo here is clearly engaging in a vague setup. She uses the non-word "irregularities" which is basically like saying "racism". They guest then states a wildly speculative position that contains a mixture of facts and opinion. This is common on all cable news interviews. None of this passes muster.
I am seeing a focus on the part of Dominion to use the word "narrative" quite often in here, for example they state Fox promoted the following 4 false narratives.
2020 Presidential Election ( the algorithm lie) . ( 3 ) Dominion is owned by a company founded in Venezuela to rig elections for the dictator Hugo Chavez ( the Venezuela lie) .
( 4 ) Dominion paid kickbacks to government officials who used its machines in the 2020 Presidential Election ( the kickbacks lie)
These are all just normal political opinion narratives that contain a mongrel of speculation and facts no different than any Russian collusion idea or Hunter laptop idea.
The next time a Fox host appears to be cited is with this:
Inaccurate is another classic political weasel word that cannot in normal circumstances be thought to be a specific factual allegation.
Skimming the remainder of the document, I find myself in a situation akin to the judge at the end of Billy Madison, "Mr. Madison, what you've just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul." Except for, I replace idiotic with "related to the law in any way".
I appreciate you took the time to dive into this. To help us both, we can reference as a template the standard utilized in the Gibson's Bakery defamation lawsuit that Oberlin University lost. Starting on page 11 of the appeal, you can see an example of how to determine whether a statement is factual, and an important factor is whether or not it's "verifiable". So something like "this painting is beautiful" is not verifiable, while "this painting was made by Bob" is.
I would agree with you that Baritomo's "irregularities" is too ambiguous to be a statement of fact.
Regarding Powell's statement:
If you believe this is too speculative to be considered a statement of fact, how would you edit the sentence to make it less speculative? I highlighted the pertinent clauses and I literally cannot contemplate how to make it any more of a statement of fact. Either fraud happened or did not. If the fraud happened, either it happened in the computer systems or not. Either Dominion flipped votes or not. Either they added votes or did not. Virtually everything she said is a statement of fact, and I don't know by what standard you're using to say otherwise.
Regarding Dobbs' example, I don't know how else to interpret the phrase "which were designed to be inaccurate" except to describe intent. Either the system was designed or it wasn't, and if it was designed either it was designed to be inaccurate or it wasn't. This is especially lucid considering it's in the context of Powell's theory that she's "identified mathematically the exact algorithm they used and planned to use from the beginning to modify the votes in this case to make sure Biden won"
Your last paragraph is what we in the business call conclusory. You're just making a claim without explaining its basis. I don't know your expertise with defamation law, but if you can confidently assert that the MSJ is not "related to the law in any way" I would assume you can show your work easily. Quoting a 90s comedy unfortunately doesn't count.
You'd eliminate the or statement. It would be flipping votes. OR its would be adding votes. It would include a method and place. For example, "That is where the fraud took place, where they were flipping votes in the computer system in Maricopa County using a DNC backdoor."
No, you shouldn't assume that. It is about reading a nearly 200 page document that, if actually focused on the law, would be a 40 page document (or less to be honest), introduces itself with irrelevant statements made by Fox hosts out of context, does not contain a concise section that lists the alleged defamatory statements (instead they are scattered throughout the document), etc etc. It looks like a political document masquerading like a legal document.
Ok that does indeed make it more factual by mitigating some ambiguity. But if so, you're presenting an extremely high standard for defamation, one I don't believe is reflected in any jurisdiction. For example, the statement from the Gibson's Bakery (linked above) that it had a "long account of racial profiling and discrimination" is similar to what you described as:
The court in that case found that it was a statement of fact. If you were to apply the standard you outlined in a consistent manner, you would disagree with that part of the Oberlin decision. Am I incorrect?
I'm assuming that you could only come to this conclusion if you've read multiple defamation motions summary judgment in order to get a sense of what the landscape looks like. If so, can you link to a MSJ that you believe meets your standards?
Defamation, no. You see, almost no cases proceed to that in defamation because they get anti-SLAPPed out of court. But this does not look like a MSJ in any of the other types of cases I've seen or written.
This is true, it's generally very difficult to win a defamation case but then again few cases have the treasure trove of evidence that Dominion got a hold of.
Do you agree that Oberlin should not have been found liable for defamation based on the statement I highlighted? Like you mentioned, it's like "racism".
Correct, because they don't get discovery.
Oberlin's defamatory statement was:
by 2 friends was choked until the 2 forced Allyn to let go. After [t]he young man was free, Allyn chased him across College St. and into Tappan Square. There, Allyn tackled him and restrained him again until Oberlin police arrived. The 3 were racially profiled on the scene. They were arrested without being questioned, asked their names, or read their rights. 2 were released shortly after and charged with assault. The young man is being held in Lorain County Jail, charged with robbery. No bail until his arraignment this Friday 8:30 AM, 65 S Main.
A second statement was
These are incredibly unlike just "saying racist" because they contain the specific allegation of assault. One contains a specific allegation of choking. The other contains a specific allegation of injury to the student.
You can even read the appeals court decision. https://www.supremecourt.ohio.gov/rod/docs/pdf/9/2022/2022-Ohio-1079.pdf Where they say:
So, as you can see. It took me about 5 minutes of investigation to show how silly the comparison to the Gibson's case this is. I even reviewed Oberlin's MSJ https://www.oberlin.edu/sites/default/files/content/office/general-counsel/current-issues/defendant_oberlin_colleges_motion_for_summary_judgment.pdf
It is, indeed, much different from the MSJ in the present case.
I agree that Oberlin's statements are even more damning in context, but as you saw in the court decision each claim was evaluated in isolation. The "long history" claim was found to be defamatory on its own (¶33), without including the specific allegation of assault (which was dealt with separately in ¶34, with the claim about the owner dealt with separately again in ¶35). Your argument that the comparison is unwarranted because Oberlin's statement contained specific allegations of assault/choking is demonstrably not true. Setting that disagreement aside, do you, personally, believe that Oberlin claiming the bakery had a "long account of racial profiling and discrimination" on its own should count as an actionable statement of fact for purposes of defamation? Yes or no?
Certainly, and the circumstances are very different too. For one, that was the defendant's MSJ. Plaintiff MSJs for defamation are virtually unheard of, because defamation is so fact-dependent and MSJ require there to be virtually no disagreement on the facts.
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