As an initial matter, there is no blanket immunity for statements that are political in nature, Nichols wrote inhis 44-page opinion
. It is true that courts recognize the value in some level of imaginative expression or rhetorical hyperbole in our public debate. But it is simply not the law that provably false statements cannot be actionable if made in the context of an election.
Nichols said many of the statements cited in the suit qualified as comments that could be seen as making factual claims capable of being proved true or false.
The question, then, is whether a reasonable juror could conclude that Powells statements expressed or implied a verifiably false fact about Dominion, the judge wrote. This is not a close call.
The judge noted that Powell repeatedly said the founder of Dominion claimed he could change vast numbers of votes at his whim.
These statements are either true or not; either Powell has a video depicting the founder of Dominion saying he can change a million votes, or she does not, Nichols said.
Nichols also dismissed Powells defense that her allegations could not have met the actual malice standard because she was relying on sworn statements from people claiming to have knowledge of alleged improprieties and vulnerabilities in Dominions software.
There is no rule that a defendant cannot act in reckless disregard of the truth when relying on sworn affidavits especially sworn affidavits that the defendant had a role in creating, the judge wrote. And Dominion alleges that Powells evidence was either falsified by Powell herself, misrepresented and cherry-picked, or so obviously unreliable that Powell had to have known it was false or had acted with reckless disregard for the truth.
The ruling is far from the final word on the cases, which are several in a series of suits Dominion has filed against its critics and the news outlets that gave them prominent platforms. However, the decision was something of a rout for the Trump allies.
One measure of that is that Nichols even allowed the election technology company to press claims of deceptive trade practices against Powell and Lindell over their actions. Powells lawyers argued that she couldnt be liable on that theory because she wasnt engaged in trade and commerce of goods at the time of her statements.
However, the judge said the company had viable claims that Powell, Lindell and Lindells company, My Pillow, sought to profit financially by spreading false and inaccurate information.
A lawyer for Powell, Howard Kleinhendler, expressed disappointment in the decision, but signaled that the ruling opened up the possibility of court-ordered access to information about Dominions machines and how they performed last fall.
We are disappointed with the Courts decision, Kleinhendler said in a statement. However, we now look forward to litigating this case on its merits and proving that Ms. Powells statements were accurate and certainly not published with malice. We also anticipate taking full discovery of Dominion including a thorough review of its election software and machines used in the 2020 election.
Attorneys for Giuliani and Lindell did not immediately respond to requests for comment.
A spokesperson for Dominion said in a statement, We are pleased to see this process moving forward to hold Mike Lindell, MyPillow, Rudy Giuliani, Sidney Powell, and Defending The Republic accountable. Defending the Republic is a group run by Powell.