In Dominion v. Sidney Powell, the defense has invoked the reasonable person standard. It is my understanding that Powell's First Amendment right is not tested as the plaintiff is Dominion Voting Systems and not the government. Assume Dominion has actually suffered quantifiable damages (loss of business), caused by the Powell assertions.

If plaintiff were to assert that Powell's statements were the extremist "dog whistle" that summoned unreasonable persons to cause said damages: How, if in any way, does the defense's reasonable person standard shield Powell? IANAL

  • 1
    First Amendment rights are absolutely at issue. The plaintiff is a private corporation, but it is invoking the government's laws regulating speech.
    – bdb484
    Mar 27 at 5:35
  • @bdb484 I invite you to author an answer and provide your opinion.
    – gatorback
    Mar 28 at 0:15
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    I don't usually do full answers for questions that I suspect will never be marked answered.
    – bdb484
    Mar 28 at 0:32
  • @bdb484 I will mark this one answered: especially if you can provide a good counterpoint to DaleM. I am always interested in hearing both side of the issue. Thanks
    – gatorback
    Apr 3 at 3:21

Some simplified points of basic defamation law as background:

  • A critical element of defamation law is that the defendant said something false.

  • You therefore can't win a defamation case if it's based on a statement that can't be proven false: "You are annoying." "You are ugly." "You are a bad lawyer."

  • If a statement can't be proven false, it is considered opinion.

  • Statments of opinion are virtually always protected by the First Amendment.

Powell's brief relies on this framework to argue that because her statements were statements of opinion, no defamation could have occurred. It's like defending against a murder charge by saying that no one died. Although it isn't generally referred to as the "reasonable person standard," reasonableness comes into this question because part of the calculus in assessing whether a statement is fact or opinion is to ask whether a reasonable person would understand the statement to be making an assertion of fact. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).

By leaning into that language, Powell is not saying that reasonable people would not have any reaction or would not have any specific reaction to her statements; instead, she is saying that reasonable people would not have understood her statements to be assertions of fact. Her argument seems to turn on the fact that she was speaking as an attorney representing a political candidate in a lawsuit, and that reasonable people understand statements made in that context to be "inherently prone to exaggeration and hyperbole” and "view them only as claims that await testing by the courts through the adversary process."

For what it's worth, that seems to me like a pretty weak argument. While people expect a certain amount of puffery from their candidates, they also expect that lawyers representing the President of the United States aren't going into court with frivolous allegations.

More importantly, though, I think she's running the analysis incorrectly. Rather than asking whether a reasonable person would understand her statements to assertions of fact, she's asking whether a reasonable person would think that she was prone to exaggerate in the setting in which she made those statements. As I understand it, a speaker cannot cloak statements of fact from liability by merely refraining from uttering them until she finds herself in a context where people expect some amount of loose speech. Even if you're a partisan hack with no credibility appearing on a TV show hosted by another partisan hack with no credibility, you generally can't accuse your opponent of being a murderer or child molester or something like that. Those are still assertions of fact, even if they're bookended with statements that "Donald Trump is the greatest president this country will ever have."

The brief does not rely at all on Hustler or the First Amendment protections for parody that were discussed in the previous answer. These tests are closely related, however, as both defenses claim that the speech was not "false" in the relevant sense.

  • How specific can the argument be that the context makes it clear to a reasonable person that the person was stating opinions? Like, a lot of people agree that Powell is the nuttiest lawyer to assist Trump since Giuliani ate a PayDay bar. Would the court go so far as to assume the context of the kind of legal counsel and public spokespeople Trump was already associated with, or would they replace the particulars of Trump with something "reasonable"? Apr 4 at 4:47
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    Well, that's basically the argument Powell is making, and I don't think she can get very far with it at all, because it's also basically the same argument the Court rejected in Milkovich. There, the argument was that the reporter was writing an opinion column, and that it was on the sports page, "a traditional haven for cajoling, invective, and hyperbole." But the court said that that's not how the analysis works.
    – bdb484
    Apr 4 at 15:29
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    Instead, you have to ask if the statement is "provable as false." So I'm not sure the context matters that much in an assessment of whether the speech is opinion or not. If you say "Joe Biden is ugly, and Joe Biden is a child molester," the first statement will be a protected statement of opinion and the second will be an actionable statement of fact, whether you write them in a textbook or or say them on Newsmax.
    – bdb484
    Apr 4 at 15:29
  • I haven't read the defense so I'm relying on what other commentators have said, but it sounded like the defense was or may be that she was restating allegations in a lawsuit, allegations in a lawsuit being immune to defamation liability, as well as reporting on a lawsuit not being subject to defamation if the reporting is just on what's in the lawsuit. Apr 5 at 13:10
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    @IllusiveBrian Statements made in pleadings are privileged. A statement made outside of a pleading is not privileged simply because it was also made in a pleading. Apr 5 at 16:19

Yes, but not here

The case on point is Hustler Magazine v Falwell:

In an 8–0 decision, the Court ruled in favor of Hustler magazine, holding that a parody ad published in the magazine depicting televangelist and political commentator Jerry Falwell Sr. as an incestuous drunk, was protected speech since Falwell was a public figure and the parody could not have been reasonably considered believable.

The difference between that and this is that was published once in a satirical magazine and was an obvious parody of a then current Campari ad. While this is numerous statements on what purports to be a news channel with no effort at humour. In the first instance, a reasonable person would realise that the whole thing is a joke. In the second instance a reasonable person would believe it’s news reporting.

There can be different reasonable people. For example, in a professional negligence suit the reasonable person is a “reasonable member of the relevant profession” rather than a “reasonable member of the general public”. However, here they a both the same - a reasonable consumer of media.

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    I haven't looked at her brief, but I don't think is correct. My understanding is that Powell is not arguing that her statements were parody, but that they were opinion.
    – bdb484
    Mar 27 at 5:34
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    @bdb484 no, she’s arguing that no reasonable person would believe her opinion, just like no reasonable person would believe Hustler’s parody.
    – Dale M
    Apr 3 at 22:05
  • That's an interesting but not particularly correct analysis.
    – bdb484
    Apr 3 at 22:59

The Reasonable Person standard is being used in conjunction with Powell's invocation of Litigation Privilege as her legal defense in this Defamation case.

Litigation Privilege is an absolute immunity provided to legal counsel that statements made prior to and during judicial proceedings that would be considered defamatory in other settings. Since litigation is adversarial in the United States, in almost every case it boils down to two parties having a difference of opinion as to what is "true" regarding a matter. Inevitably the decision of the judge or jury will resolve the matter of truth in the eyes of the law and any statements following that fail to recognize the decision would be defamatory. However, to prevent the losing party from being hit with a second suit now that the courts have said they were wrong, they are immune from defamation suits from statements made pursuant to the matters at issue in the case.

Thus, Powel is saying that no reasonable person would believe that what she said was said while representing her client in the litigation process following the 2020 elections and the contested votes in numerous states. While ultimately these challenges failed, no reasonable person would believe that she did not make these statements on behalf of her client in litigation that called into question matters that related to Dominion Voting Machines, and thus qualifies her for immunity from defamation lawsuits.

That said, Litigation Privilege does have it's limits and there may be some statements made by Powell that might not be immune.

  • This doesn't make any sense. (1) Powell isn't asserting litigation privilege. (2) Litigation privilege doesn't have anything to do with a "reasonable person" standard. (3) If it did, it doesn't make any sense to immunize her statements if reasonable people would not believe she made her statements while representing her client.
    – bdb484
    Apr 5 at 15:01
  • @bdb484: Have you read her filing? Or just the news coverage? And are you refering to a quote I said in item 3? I may have typoed, but the intent is No Reasonable person would say she was not making statements regarding litigation she was party to. Or A reasonable person would say she was making statements regarding litigation. Reasonable Person is not a legal standard but a legal fiction of what a person with knowledge of the facts would conclude. It's not an average person.
    – hszmv
    Apr 5 at 15:10
  • I've read the motion to dismiss and news coverage.
    – bdb484
    Apr 5 at 15:25

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