The Trump legal team’s press conference was not for the faint of heart. The team claimed a global communist backed conspiracy to “inject” and “change” voices using the Dominion computer system. It was exhausting and breathtaking. I criticized the press conference for being long with heated rhetoric and short with hard evidence. Dominion issued a statement in which it categorically denied the allegations. The question is whether Dominion will sue even now. The company denied the allegations, but I often measure such rejections by whether someone actually sues. Dominion could do so, forcing the Trump team to reveal the evidence supporting their allegations or face potentially substantial liability. I suspect attorneys like Sidney Powell would not make such allegations without evidence, but the press conference did not release such evidence. However, these are not just colorful, but also criminal allegations against named companies and, implicitly, corporate officials and political allies.
The Trump campaign attorney repeatedly accused Dominion and its officials of criminal behavior and business inadequacies. These are categories of “defamation per se” under common law. In such cases, no particular damage may be proven. Individual officials could make libel claims, and the company itself could bring a degradation lawsuit.
Corporations, like individuals, can be defamed if the false statement compromises the company’s business character or its reputation and standing in the industry. In Dun & Bradstreet, Inc. v Greenmoss Builders, Inc., 472 US 749 (1985), the Supreme Court allowed a company to sue a credit bureau for defamation if the agency falsely reported that the company had filed for bankruptcy.
Restatement Second Section 561 Defamation of Companies states:
“Anyone who publishes defamatory matters relating to a company is liable for them
(a) if the company is a for-profit company and the matter tends to interfere with the conduct of its business or deter others from dealing with it, or
(b) when, although not for profit, it depends on financial support from the public and the matter tends to interfere with their activities by undermining them in public opinion. “
Dominion appears to be a Colorado-based company.
There could be lawsuits in Colorado or at the location of the alleged defamation. The lawsuit would likely be filed under state law but would be moved to federal court on arguments of diversity jurisdiction.
The press conference was an explosion of potentially defamatory claims by individuals or companies. The only clear defense is the truth. The team insists it can prove these allegations. It may have to do this. Not only can individual lawyers be exposed to such lawsuits, but the Trump campaign itself could be held liable under the line of command if an employer is liable for the conduct of its employees when they act in the course of their employment. Ironically, the Latin term means “let the master speak”. The president or his campaign could be forced to speak on a defamation case if they did not speak in the promised court records.
There is a matter of privilege for legal claims. It is an absolute privilege for attorneys to make statements in court. This is important as we often make allegations that implicate the correctness or character of parties, especially in criminal matters. However, this privilege is more limited outside of court. It may still apply, but some courts have refused to protect statements made to the press or the public. World Wresting Fed Entertainment, Inc. v Bozell, 142 F Supp 2d 514, 534 (SDNY 2001); Kennedy v Cannon, 229 Md 92, 97, 182 A2d 54, 58 (1962).
In other words, if the Trump team fails to produce this evidence in its case against the election, it might now be forced to produce it in a case filed by Dominion or its officers.