On March 22, attorneys for Sydney Powell, the infamous “Kraken” lawyer who worked hard to overturn the 2020 presidential election, filed a motion to appeal the defamation lawsuit brought against her by Dominion Voting Systems. The motion was based on the bizarre claim that since “no reasonable person” would believe her assertions (true enough), they should be categorized as mere opinion, and therefore protected by the First Amendment.
But aside from the fact that the world is full of perfectly unreasonable people who can, and did, buy her allegations, they definitely were not mere opinion. She presented her claims in legal filings, riddled with misspellings and sloppy formatting. Yet her legal counsel expects the judge to forget all about this, arguing that…
Indeed, Plaintiffs themselves characterize the statements at issue as ‘wild accusations’ and ‘outlandish claims.’ They are repeatedly labelled ‘inherently improbable’ and even ‘impossible.’ Such characterizations of the allegedly defamatory statements further support Defendants’ position that reasonable people would not accept such statements as fact but view them only as claims that await testing by the courts through the adversary process.
In case you’re scratching your head over how to translate that into English, here’s the gist of it: “Since even Dominion calls her claims absurd, clearly she herself knows they were absurd, and so does everyone else — even though she considered it important to declare said claims before a court to determine whether or not they were true.”
Strangely enough, this is not the first time a right-wing mouthpiece has used this kind of tactic. Fox “News”, defending its star talking headless Tucker Carlson in a defamation suit, argued in court that no “reasonable person” would take him seriously. And they actually won. Tucker Carlson still has his job, by the way.
Alex Jones, who never met a nutty conspiracy theory he didn’t like, also faced a lawsuit after promoting the narrative that the Sandy Hook shooting was staged. In a motion to dismiss the suit, his legal counsel stated:
No reasonable reader or listener would interpret Mr. Jones’ statements regarding the possibility of a ‘blue-screen’ being used as a verifiably false statement of fact, and even if it is verifiable as false, the entire context in which it was made discloses that the statements are mere opinions ‘masquerading as a fact.’
Again, reasonable people are not the problem, are they? There are plenty of people who eagerly gulp down whatever Jones farts out. One of them occupied the White House for four years. Jones spends every day foaming at the mouth over his batshit delusions, and more than once has floated the idea of “civil war” to defend them. Yet in court, he (or at least his lawyer) would have you believe that he was merely trying to be, somehow or other, entertaining. But by tagging his “opinions” as “masquerading as fact”, they unwittingly shot themselves in all feet.
Rush Limbaugh repeatedly deflected criticism by insisting that he was merely “an entertainer” — while at the same time solemnly warning that the world would go to hell if it didn’t take his golden words to heart. This type of double-dealing has been employed often by Fox “News”. Whenever they get called on the carpet, they just say, “hey, we were merely expressing our opinion”. But those “opinions” constantly masquerade as fact, and very passionately so. In promoting the right-wing lie about election fraud in 2020, Sean Hannity said:
There’s no doubt this was stolen. No doubt whatsoever. I don’t have any doubt in my mind.
Which sounds a lot like what his partner in crime Tucker Carlson said:
The 2020 presidential election was not fair. No honest person would claim that it was fair.
But this is in stark contrast to what their own network said on air in response to the threat of legal action. And while he might have varied his vocabulary by substituting “honest person” for “reasonable person”, Tuck’s still saying you’re an idiot if you don’t believe what he tells you — after arguing in court that you’re an idiot if you do believe what he tells you. As Dominion and Smartmatic continue to tighten the noose around more offenders, don’t be surprised if you hear the likes of Hannity and Carlson say, “No reasonable person would believe it when I say what no reasonable person would believe.”
Some people have referred to this kind of tactic as the stupidity defense, but that’s really a bit of a misnomer. A stupidity defense is admitting to one’s own stupidity, even if momentarily. People like these might employ it occasionally, but it’s a good bet they will emphasize that someone else is really to blame for their stupidity. Here, for instance, is CongressThing Marjorie Taylor Greene (Q-GA) trying to defend herself in a hearing on divesting her of her congressional committee posts:
I was allowed to believe things that weren’t true and I would ask questions … and talk about them.
Got that? She was “allowed to believe”. By someone or other who should have known better than to give her so much leeway. And who was that? Why, the media, of course.
Will we allow the media, that is just a guilty as QAnon of presenting truth and lies, to divide us?
The devil made her do it. (Or maybe the Jewish space lasers.) And the devil owns the media — at least the ones that say what she doesn’t want to hear. And is she suggesting it’s as bad to tell the truth as it is to tell lies?
But rather than invoking the stupidity defense, Powell, Carlson, Hannity, Limbaugh et al have been invoking what might be called the sucker defense. Which is to say that, rather than acknowledging their own stupidity, they are blaming the stupidity of their fans. Rather than saying “It’s not my fault that I was stupid”, they are saying “It’s not my fault if people are stupid enough to believe what I try so hard to make them believe.” And on the basis of this argument, they further assert that they therefore should be able to say absolutely anything about absolutely anyone without fear of consequences.
Astoundingly, this strategy has had at least some degree of success in the courts. And in the court of public opinion, it has been overwhelmingly successful. The fans of these people really don’t care if their idols are denouncing them as stupid. They still willingly and eagerly guzzle the Kool-Aid. According to an Ipsos poll, 60 percent of Republicans believe the 2020 election was “stolen”. And half of them believe one or more right-wing lies about the Jan. 6 Capitol insurrection (i.e., that it was “peaceful” and/ or that it was instigated by left-wing groups) despite the evidence of their own eyes.
The hucksters are openly declaring themselves to be con men and women. But their marks are still gladly letting themselves be fleeced. What a nice little racket.