Defamation Defeated the Kraken

Some called it the shot heard 'round the world. An opening salvo in what would unfold as the biggest political scandal not just in U.S. history but world history.

Very Serious Lawyers Sidney Powell, Rudy Giuliani, and others had uncovered a trove of documents and evidence that Powell dubbed "the Kraken." When released (in court), this creature from the deep would prove that electronic voting machine manufacturer Dominion Voting Systems and election technology company Smartmatic had switched millions of votes from Donald Trump to Joe Biden!

But one Capitol riot and countless courtroom defeats later, Joe Biden is president, Powell and Giuliani hate each other, and news anchors are saying how awesome Dominion and Smartmatic are.

The Kraken has been sent back to Davy Jones' locker.

No Take-Backs Now

It turns out you can't just say that a company was at the center of a conspiracy concocted by Venezuela and China (are we missing anyone else?) to use software to switch votes from Trump to Biden and not expect some legal blowback.

After weeks of warnings, Dominion sued Powell and Giuliani for $1.3 billion (yes, billion) each in damages for defamation, and Smartmatic sued Fox News for $2.7 billion.

The lawsuit against Powell states the company has "mountains of evidence conclusively disproving Powell's vote-manipulation claims," including the paper receipts of ballots (that were supposedly switched) cast on Dominion machines in Georgia that were recounted by hand.

In its lawsuit against Giuliani, the company was clear about the effects of the "stolen" election claims. "While some lies — little lies — flare up on social media and die with the next news cycle, the Big Lie was different. The harm to Dominion's business and reputation is unprecedented and irreparable because of how fervently millions of people believe it."

Defamation Actually Means Something

Celebrities, politicians, and every guy with an opinion on the internet love to yell "libel!" "slander!" and "defamation!" any time embarrassing news comes out. These terms have legal meaning, though.

"Defamation" is the term that covers statements that hurt someone's reputation. Libel refers to written defamatory statements, and slander refers to spoken defamatory statements. The lawsuits target the statements that Powell, Giuliani, and Fox News personalities made in media appearances and press conferences, alleging lost business and harm to its reputation.

A successful defamation lawsuit must prove that the statements:

• Were published (television counts)
• Caused harm
• Were false
• Were not privileged (essentially meaning t did not occur in a courtroom)

It is difficult to win a defamation lawsuit in the U.S., especially if you are a public figure, which one could make a reasonable argument that Dominion is. The Supreme Court has decided that defamatory statements made against "public figures" must be made with "actual malice." That means Dominion essentially must prove that Powell and Giuliani (and, see below, other potential lawsuit targets) knew what they were saying was false and didn't care.

As a defense, Powell and Giuliani might claim that they were parroting what the "evidence" of election fraud showed. But Dominion enlisted attorney Thomas A. Clare, one of the country's most prominent defamation litigators, to represent it, signaling how seriously it is taking the matter.

Just Kidding!

So far, Dominion has only filed actual lawsuits against Powell and Giuliani. But in a bit of Trumpian bluster, the company has been handing out cease-and-desist letters and requests to preserve documents like candy. The strategy appears to be working. So far:

• Conservative opinion website American Thinker issued an apology to Dominion for publishing Kraken-related pieces that were "completely false and have no basis in fact."
• Fox News has aired segments fact-checking their own pundits' statements on Dominion and Smartmatic, although that wasn't enough to get the latter to hold back from suing them.
• Newsmax has done the same as Fox and even cut off pillow salesman-turned-election fraud expert Mike Lindell as he went off on Dominion during a recent segment. The anchor then read a terse statement: "Newsmax accepts the [election] results as legal and final. The courts have also supported that view."

In short, these outlets are acknowledging that they know Powell's, Giuliani's, and others' claims were baseless. Media outlets and bad actors that aired segments and published articles about the Kraken for the ratings and clicks are on notice.

Related Resources:

• Learn More About Defamation, Libel, and Slander (FindLaw's Learn About the Law)
• Sidney Powell Puts the Kraken Back in the...Wherever You Keep a Kraken (FindLaw's U.S. 11th Circuit)
• Lawsuit Claims Organization Took Millions to Litigate Election but Didn't Follow Through (FindLaw's U.S. Fifth Circuit)