IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
US DOMINION, INC., DOMINION )
VOTING SYSTEMS, INC., and )
DOMINION VOTING SYSTEMS )
CORPORATION, ) C.A. No.: N21C-08-063 EMD
)
Plaintiffs, )
)
v. )
)
NEWSMAX MEDIA, INC., )
)
Defendant. )
Submitted: March 8, 2022
Decided: June 16, 2022
Upon Defendant’s Motion to Dismiss
DENIED
Brian E. Farnan, Esquire, Michael J. Farnan, Esquire, Farnan LLP, Wilmington, Delaware;
Rodney Smolla, Esquire, Wilmington, Delaware; Thomas A. Clare, Esquire, Megan L. Meier,
Esquire, Dustin A. Pusch, Esquire, Daniel P. Watkins, Esquire, Clare Locke LLP, Alexandria,
Virginia; Justin A. Nelson, Esquire, Brittany Fowler, Esquire, Susman Godfrey LLP, Houston,
Texas; Stephen Shackelford, Jr., Esquire, Elisha Barron, Esquire, Susman Godfrey LLP, New
York, New York; Davida Brook, Esquire, Susman Godfrey LLP, Los Angeles, California;
Stephen E. Morrissey, Esquire, Susman Godfrey LLP, Seattle, Washington; Attorneys for
Plaintiffs US Dominion, Inc., Dominion Voting Systems, Inc., and Dominion Voting Systems
Corporation.
Richard L. Renck, Esquire, Tracey E. Timlin, Esquire, Duane Morris LLP, Wilmington,
Delaware; Howard M. Cooper, Esquire, Todd & Weld LLP, Boston, Massachusetts; Mark A.
Lerner, Esquire, Duane Morris LLP, New York, New York; Attorneys for Defendant Newsmax
Media, Inc.
DAVIS, J.
I. INTRODUCTION
This is a civil action involving a defamation claim. Plaintiffs US Dominion, Inc.,
Dominion Voting Systems, Inc. and Dominion Voting Systems Corporation (collectively
“Dominion”) allege that Defendant Newsmax Media Inc. (“Newsmax”) published false and
defamatory statements of fact about Dominion. Dominion claims that Newsmax’s hosts
intentionally provided a platform for guests that Newsmax knew would make such statements on
the air. In addition, Dominion contends that Newsmax affirmed, endorsed, repeated, agreed
with, and repeated those guests false and defamatory statements on the air, on Newsmax’s
websites, on Newsmax’s social media accounts, and on Newsmax’s other digital platforms and
subscription services. Through its complaint (the “Complaint”), Dominion seeks punitive and
economic damages for defamation per se.1
On October 11, 2021, Newsmax moved to dismiss (the “Motion”) the Complaint for
failure to state a claim.2 Dominion opposed the Motion on November 15, 2021.3 On December
10, 2021, Newsmax filed a reply brief in support of the Motion.4 The Court held a hearing on
the Motion on March 8, 2022.5 At the conclusion of the hearing, the Court took the Motion
under advisement. This is the Court’s decision on the Motion. For the reasons set forth below,
the Motion is DENIED.
1
D.I. No. 1.
2
D.I. No. 21, Defendant’s Opening Brief in Support of its Rule 12(b)(6) Motion to Dismiss for Failure to State a
Claim (hereinafter, Mot.).
3
D.I. No. 34, Plaintiffs’ Brief in Opposition to Defendant’s Rule 12(b)(6) Motion to Dismiss (hereinafter, Opp.).
4
D.I. No. 39, Defendant’s Reply Brief in Support of its Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim
(hereinafter, Reply).
5
D.I. No. 45.
2
II. BACKGROUND
Unless otherwise indicated, the following facts are stated as alleged in the Complaint.
For purposes of the Motion, the Court must view all well-pled facts alleged in the Complaint as
true and in a light most favorable to Dominion.6 As such, the Court will not necessarily use
terms like “alleged facts” or “purported facts” throughout. Unless otherwise indicated, all facts
used herein come from the Complaint. This section tracks the facts in the order alleged in the
Complaint.
A. THE PARTIES
US Dominion, Inc. is a Delaware corporation with its principal place of business in
Colorado.7 Dominion Voting Systems, Inc. is a Delaware corporation with its principal place of
business in Colorado and has maintained an office in New York since July 2009.8 Dominion
Voting Systems Corporation is an Ontario corporation with its principal place of business in
Toronto, Ontario.9 Dominion Voting Systems, Inc. and Dominion Voting Systems Corporation
are wholly owned subsidiaries of US Dominion, Inc.10
Newsmax is a Delaware corporation with its principal place of business in West Palm
Beach, Florida.11 Newsmax operates the Newsmax news channel, the website Newsmax.com,
mobile apps for Apple and Android devices, and various social media accounts.12
6
See, e.g., Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Holdings LLC, 27 A.3d 531, 536 (Del. 2011); Doe v.
Cedars Acad., LLC, 2010 WL 5825343, at *3 (Del. Super. Oct. 27, 2010).
7
Compl. ¶ 11. “It is majority-owned by a private equity firm whose principal place of business is in New York.” Id.
8
Id. ¶ 12.
9
Id. ¶ 13.
10
Id. ¶¶ 12, 13.
11
Id. ¶ 14.
12
Id.
3
B. RELEVANT NONPARTIES
Christopher Ruddy is the Chief Executive Officer of Newsmax.13 Mr. Ruddy is
Newsmax’s agent.14 Mr. Ruddy “founded Newsmax in 1998 as a conservative news website”
and launched the Newsmax cable television channel in 2014.15
Greg Kelly is the host of Greg Kelly Reports, which is broadcast from New York and airs
weeknights on Newsmax TV.16 Mr. Kelly is Newsmax’s agent.17 Mr. Kelly also hosts “The
Greg Kelly Podcast” for Newsmax and “the Greg Kelly Show” on WABC radio.18 Newsmax
operates and exercises control over Mr. Kelly’s Twitter account (@gregkellyusa).19
Grant Stinchfield is the host of Stinchfield which airs weeknights on Newsmax TV.20 Mr.
Stinchfield is Newsmax’s agent.21 Mr. Stinchfield also hosts the radio show “The Stinchfield
Report” on KLIF/570 AM and runs the website GrantsRant.com.22 Newsmax operates and
exercises control over Mr. Stinchfield’s Twitter account (@stinchfield1776).23
Emerald Robinson appears regularly on Newsmax TV and serves as Newsmax’s White
House correspondent.24 Ms. Robinson is Newsmax’s agent.25 Newsmax operates and exercises
control over Ms. Robinson’s Twitter account (@EmeraldRobinson).26
13
Id. ¶ 15.
14
Id.
15
Id.
16
Id. ¶ 16.
17
Id.
18
Id.
19
Id.
20
Id. ¶ 17.
21
Id.
22
Id.
23
Id.
24
Id. ¶ 18.
25
Id.
26
Id.
4
Sidney Powell is an attorney that briefly pursued litigation challenging the 2020
Presidential Election.27 All of that litigation was summarily dismissed by December 9, 2020.28
Ms. Powell was also the attorney for Michael Flynn, who she sought to have former President
Trump pardon.29 Newsmax repeatedly hosted and replayed Ms. Powell after the 2020
Presidential Election.30
Rudolph Giuliani, the former mayor of New York City, is a YouTube podcast host, radio
show host and attorney to President Donald Trump and the Trump Campaign.31 Newsmax
broadcast false statements by Mr. Giuliani in the weeks following the 2020 Presidential
Election.32 On June 24, 2021, New York suspended Mr. Guiliani’s law license.33 On July 7,
2021, Washington, D.C. suspended Mr. Guiliani’s law license as well.34
Michael Lindell is the founder and CEO of My Pillow, Inc. (“MyPillow”), one of
Newsmax’s biggest sponsors.35 Newsmax invited Mr. Lindell to appear on air, where he
repeated conspiracy theories about the 2020 Presidential Election and lies about Dominion.36
Dominion filed a defamation lawsuit against Mr. Lindell on February 22, 2021 related to a series
of “docu-movies” about Dominion.37
Dick Morris is a political commentator and was a regular Newsmax contributor, until
February 2021 when he began appearing on his own show on Newsmax called Dick Morris
27
Id. ¶ 19.
28
Id.
29
Id. Former President Trump did pardon Mr. Flynn on November 25, 2020. Id.
30
Id.
31
Id. ¶ 20.
32
Id.
33
Id.
34
Id.
35
Id. ¶ 21.
36
Id.
37
Id.
5
Democracy.38 Mr. Morris was fired from his role on President Bill Clinton’s campaign in 1996
and has been previously criticized for “crossing journalistic ethical lines by ‘accepting paid
advertisements’ on his personal website ‘from candidates that he discussed on the air at Fox.’”39
Newsmax manages Mr. Morris’s email list.40
Patrick Byrne is the former CEO of the internet discount retailer Overstock.com.41 Mr.
Byrne appeared as an “expert” on Newsmax to discuss Dominion and the 2020 Presidential
Election.42 Mr. Byrne was previously ordered to pay approximately $1 million in a defamation
judgment for falsely accusing a Canadian businessman of being connected to “Osama bin
Laden’s favorite financier,” the Colombian drug cartel, the Russian mafia, and al Qaeda’s
Golden Chain.43
In August 2020, Mr. Byrne publicly admitted that he believed the 2020 Presidential
Election was going to be rigged, referring to this narrative as the “last act”.44 Mr. Byrne claims
that a series of alleged experiences with the FBI tipped him off that the 2020 Presidential
election would be rigged back in August 2020.45 In August 2020, Mr. Byrne set out to hire a
group he calls the “Bad News Bears” to “reverse-engineer” the supposed election-rigging.46 As
38
Id. ¶ 22.
39
Id.
40
Id.
41
Id. ¶ 23.
42
Id.
43
Id.
44
Id. ¶ 24.
45
Id. ¶ 27. Mr. Byrne resigned his board seat and position as CEO of Overstock in August 2019 after his affair with
now-notorious Russian agent, Maria Butina was revealed, and Overstock was unable to renew its insurance policy if
Mr. Byrne remained in charge. Id. ¶¶ 23, 24. Butina was sentenced to 18 months in prison after being indicted by
federal prosecutors for trying to infiltrate powerful political circles in the United States at the direction of the
Russian government. Id. Mr. Byrne claimed that he was directed by the FBI to engage in a romantic relationship
with Butina, a claim that the FBI has denied and called “absolutely ludicrous.” Id. ¶ 25. As early as October 6, 2020,
Mr. Byrne made public claims on his personal blog and in media appearance that he was instructed by the FBI to
quit his affair with Butina and instructed to facilitate an $18 million bribe of Hillary Clinton, which Mr. Byrne
claims to have done on January 14, 2016. Id. ¶ 26.
46
Id. ¶ 27.
6
part of his “Bad News Bears” efforts, Mr. Byrne funded and worked with Russell Ramsland,
accusing Dominion of rigging the 2018 Dallas election.47
Mr. Byrne also worked with Mr. Ramsland’s team to create a so-called “forensic report”
about the 2020 vote in Antrim County, Michigan.48 Mr. Byrne worked with Mr. Lindell by
sending him documents after he lost access to former President Trump and served as CEO of
Defending the Republic, an organization launched by Ms. Powell to help fund her efforts to
accuse Dominion of rigging the 2020 Presidential Election.49 Mr. Byrne has also partnered with
OAN, Sidney Powell, and others to fund the sham election audit in Arizona.50 Mr. Byrne
published a book and a feature film, both titled The Deep Rig, in which he also claims that
Dominion rigs elections.51 “[I]n anticipation of the U.S. Supreme Court declining to hear a case
seeking to throw out the 2020 election results, [Mr.] Byrne [] claimed in early December 2020
that Chief Justice John Roberts ‘may be compromised,’ because his name according to [Mr.]
Byrne appears on the flight manifest of the notorious Jeffrey Epstein’s private jet.”52
Russell Ramsland is a failed Republican congressional candidate and author of the
purportedly independent “report” on the election results in Antrim County, Michigan.53 Mr.
Ramsland has publicly touted numerous conspiracy theories involving George Soros and election
rigging.54 Newsmax broadcast Mr. Ramsland and promoted his Antrim County report.55
47
Id.
48
Id. The report falsely accused Dominion of switching votes in Antrim County to Joe Biden from Donald Trump.
Id.
49
Id.
50
Id. ¶ 29.
51
Id.
52
Id. ¶ 30.
53
Id. ¶¶ 31, 34.
54
Id. ¶ 31. Mr. Ramsland claims “that George Soros—who was born in 1930—helped form the ‘Deep State’ in Nazi
Germany in the 1930s along with President George H.W. Bush’s father, the Muslim Brotherhood, and ‘leftists.’” Id.
55
Id.
7
Fox News Network and Fox Corporation (collectively “Fox”) is the self-described “most
watched television news channel” controlled by Lachlan and Rupert Murdoch.56 Fox is a
competitor of Newsmax.57
One America News Network (“OAN”) is a television news channel controlled by the
Herring family.58 OAN is a competitor of Newsmax.59
The Cybersecurity and Infrastructure Security Agency (“CISA”) was the agency in
charge of overseeing online security for the 2020 election.60 Christopher Krebs was director of
the CISA until former President Trump fired him.61
C. DOMINION VOTING SYSTEMS
Dominion’s voting systems are certified under U.S. Election Assistance Commission
(“EAC”) standards.62 Independent testing laboratories accredited by the EAC review and test
Dominion’s voting systems and the systems are designed to be auditable.63 Dominion’s systems
include paper ballot backup to verify results.64
Dominion contracts with state and local governments to provide voting systems and
services.65 These contracts typically have multi-year terms and range in value from tens of
thousands of dollars to over a hundred million dollars.66 Dominion’s contracts are historically
56
Id. ¶ 35.
57
Id.
58
Id. ¶ 36.
59
Id.
60
Id. ¶ 52.
61
Id. ¶¶ 52, 108.
62
Id. ¶ 39.
63
Id.
64
Id.
65
Id. ¶ 43.
66
Id.
8
long-term with high renewal rates.67 As of the 2020 election, Dominion provided voting
machine technology in over 28 states including, the more than 50 New York counties.68
D. NEWSMAX COURTS FOX VIEWERS.
Newsmax was an early supporter of former President Trump before he ran for office.69
Newsmax founder and CEO, Mr. Ruddy, is a long-time friend of former President Trump and
credits former President Trump with giving Newsmax “legitimacy” back in 2011.70 Prior to the
2020 election, former President Trump would criticize Fox for what he perceived as insufficient
support.71
Leading up to the 2020 election, Newsmax reported that election officials expected
record mail-in voting because of coronavirus pandemic concerns.72 Newsmax also reported that
mail-in voting was widely expected to favor Democrats because prominent Republicans,
including former President Trump, consistently encouraged supporters to avoid voting by mail.73
Newsmax’s pre-election stories adopted former President Trump’s narrative that he could only
lose the election if voting fraud occurred.74 On October 14, 2020, Newsmax hosted former
President Trump on the Greg Kelly Reports.75 Host, Greg Kelly, asked former President Trump
his plans to combat election fraud to which former President Trump claimed that the election
was already “a rigged deal.”76
67
Id.
68
Id.
69
Id. ¶ 48.
70
Id.
71
Id. ¶ 49.
72
Id. ¶ 53.
73
Id.
74
Id. ¶ 55.
75
Id.
76
Id.
9
Newsmax capitalized on the perception that Fox was not supportive of former President
Trump in the lead up to the 2020 election.77 In September 2020, Newsmax criticized Fox host
Chris Wallace’s moderating of the first presidential debate, reporting that he “let Biden get off
easy.”78 Further, in late October 2020, Newsmax through its online platform, criticized a Fox
poll indicating that former President Trump was trailing Biden in the polls.79
On election day, Mr. Ruddy positioned “Newsmax to become the landing spot for former
Trump supporters who were dissatisfied with the election results and with Fox.”80 Mr. Ruddy
asserted that Fox might bear responsibility if former President Trump lost.81 When interviewed
by Newsmax host Michael Berry, Mr. Ruddy stated: “I am shocked about what Fox News has
done . . . I think if Trump loses and it’s a close election, blame Chris Wallace and Fox News.”82
Newsmax called Florida for former President Trump early in the evening before other
news networks, including Fox.83 The White House noticed that Newsmax called Florida first
and in response, Andrew Giuliani—special assistant to former President Trump and Rudolph
Giuliani’s son—appeared on Newsmax from the White House lawn and stated: “We have
Newsmax on every single TV at the White House.”84 Newsmax published this story on its
website and across its social media platforms.85
Fox was the first major news network to project that former President Trump had lost the
battleground state of Arizona.86 Former President Trump was reportedly “fuming” when he
77
Id. ¶ 56.
78
Id.
79
Id.
80
Id. ¶ 57.
81
Id.
82
Id.
83
Id. ¶ 58.
84
Id.
85
Id.
86
Id. ¶ 59.
10
learned that Fox had called Arizona for President Biden.87 Shortly after, Jared Kushner, former
President Trump’s son-in-law, called Fox founder and Chairman Rupert Murdoch to complain.88
Numerous former President Trump supporters including his political advisor, Jason Miller, and
Republican National Committee spokesperson Liz Harrington, took to social media to disparage
Fox.89 In response to this criticism against Fox, Newsmax refused to call Arizona.90 This
resulted in a spike in Newsmax’s ratings on Election night and social media support encouraging
Fox viewers to tune into Newsmax instead.91
E. NEWSMAX REFUSES TO CALL THE ELECTION AND CONTINUES TO COURT FOX VIEWERS.
In the days after the election, Newsmax refused to admit that former President Trump
would likely lose the election and vague claims of election fraud began to emerge.92 Numerous
news outlets, federal,93 state, and local officials released statements confirming that vote tallies
were accurate and that the election was not rigged.94 Despite initial reports of vote reporting
errors in Antrim County, Michigan—a jurisdiction that used Dominion voting machines for the
election—election officials quickly confirmed that the reporting error was caused by human error
and not by Dominion voting machines.95 On November 7, 2020, the Associated Press reported
that Dominion was not responsible for the human error in Antrim County, Michigan.96
87
Id. ¶ 60.
88
Id.
89
Id. ¶¶ 60-61.
90
Id. ¶ 62.
91
Id. ¶¶ 63-68.
92
Id. ¶ 69.
93
On November 7, 2020, Chris Krebs, the head of the CISA tweeted “Seeing #disinfo that some isolated voting day
issues are tied to some nefarious election hacking and vote manipulation operations. Don’t fall for it and think twice
before sharing!” Id. ¶ 75.
94
Id. ¶¶ 70-74.
95
Id. ¶¶ 73-74.
96
Id. ¶ 74.
11
On November 7, 2020, most news networks—including Fox—projected that former
President Trump lost the election.97 Newsmax refused to call the election and boasted that it
remained “the only major news network to not call the election.”98 Newsmax reported that the
race was “too close to call” and that “Fox News faces backlash from viewers after call for
Biden.”99 The next day Mr. Ruddy declared that former President Trump is “very disappointed
in Fox News” and “that Newsmax is now ‘a major player in cable news.’”100 Newsmax’s ratings
received a surge in the three days following the election.101
F. FOX CONNECTS DOMINION TO THE FALSE ELECTION FRAUD NARRATIVE.
Shortly after Fox called the election for President Biden, to stem the tide and try to
recover lost viewers and former President Trump, Fox changed its narrative and began reporting
that former President Trump lost because of massive election fraud.102 On November 8, Fox
invited Ms. Powell on the Sunday Morning Futures show and began connecting Dominion with
the narrative of election fraud.103 Ms. Powell declared that there was “a massive and coordinated
effort to steal this election from We the People of the United States of America, to delegitimize
and destroy votes for Donald Trump, to manufacture votes for Joe Biden,” and that “the
Dominion software” was to blame.104 According to Ms. Powell: “That is where the fraud took
place, where they were flipping votes in the computer system or adding votes that did not
exist.”105
97
Id. ¶ 77.
98
Id.
99
Id. ¶ 78.
100
Id.
101
Id. ¶ 79.
102
Id. ¶ 80.
103
Id. ¶ 81.
104
Id.
105
Id.
12
G. NEWSMAX JOINS FOX IN CONNECTING DOMINION TO THE FALSE ELECTION FRAUD
NARRATIVE.
On November 9, 2020, Maricopa County, Arizona, completed a hand audit of paper
ballots which showed a 100% match with the counts from the Dominion machines used in
Maricopa County.106 Newsmax reported these results and included a statement by the
Republican Arizona Attorney General that “his office conducted random audits and found no
problems.”107
On the same day, Newsmax’s White House correspondent, Ms. Robinson tweeted that
“[o]nce the Trump campaign investigates Dominion Voting Systems, the whole thing is going to
fall apart.”108 In response to this tweet, a Twitter user sent Ms. Robinson a New York Times
Fact Check which debunked the false claims about Dominion machines in Michigan.109 In the
days following the election, the public record, including voting officials and news outlets,
confirmed that the election was a success, that there was no fraud, and that Dominion did not rig
the election.110
Newsmax promoted a false origin story that Dominion was created in Venezuela by
Hugo Chavez for the purpose of rigging elections.111 This connection was based on the
verifiably false claim that Dominion is owned by Smartmatic.112 Smartmatic is actually a
Dominion’s competitor and the two entities are not otherwise affiliated.113 On November 10,
2020, Ms. Robinson retweeted the false claim that Smartmatic was synonymous with fraud for
106
Id. ¶ 83.
107
Id.
108
Id. ¶ 87.
109
Id.
110
Id. ¶ 89.
111
Id. ¶ 93.
112
Id. “Newsmax later admitted that it had no evidence that Dominion and Smartmatic were the same company but
refused to retract the lies and tell the truth. Id. ¶ 94.
113
Id.
13
most Venezuelans and that Smartmatic is a subsidiary of Dominion.114 Ms. Robinson’s tweet
claimed that “All crooked roads lead to Dominion Voting Systems.”115 Newsmax and its on-air
talent sold to the American public the story “that Dominion rigged the 2020 election and stole it
from Trump just like it stole elections in Venezuela for Chavez.”116
H. NEWSMAX CONTINUES TO CONNECT DOMINION TO THE FALSE ELECTION FRAUD
NARRATIVE DESPITE MOUNTING EVIDENCE TO THE CONTRARY.
Newsmax viewership increased over four times in the week following the election.117 On
November 10, 2020, after showing viewers that former President Trump had tweeted Newsmax
clips, a Newsmax anchor declared, “The president seems to be changing his tune on which
network to go to.”118
On November 11 and 12, 2020, news outlets, including the New York Times and the
Associated Press published stories debunking lies about Dominion.119 Also on November 12,
OAN joined Newsmax and Fox in falsely reporting that Dominion deleted votes for former
President Trump.120
That same day a joint statement from federal, state, and local authorities was published
by CISA confirming that there was “no evidence that any voting system deleted or lost votes,
changed votes, or was in any way compromised.”121 Newsmax knew about the announcement
and “Newsmax’s White House Correspondent, Emerald Robinson, had been responding to and
114
Id. ¶ 93.
115
Id.
116
Id. ¶ 95.
117
Id. ¶ 96.
118
Id.
119
Id. ¶¶ 97-98.
120
Id. ¶ 99.
121
Id. ¶ 100.
14
reposting then-CISA Director Christopher Krebs’ ‘Rumor Control Update’ posts debunking
election fraud claims on Twitter since November 6.”122
On November 12, 2020, the New York Times published a story about Newsmax courting
Fox viewers with election denialism.123 The story quoted Mr. Ruddy and noted that Newsmax
“has promoted a parade of conspiracy theories and false allegations of voter fraud.”124
On November 13, 2020, Chief Judge Kenny of the Third Circuit Court in Wayne County,
Michigan rejected an attempt to block the certification of the vote in Wayne County.125 Chief
Judge Kenny rejected claims of election fraud and concluded “Plaintiffs’ interpretation of events
is incorrect and not credible.”126 The same day, multiple Newsmax hosts tweeted about
Dominion.127 Newsmax host Benny Johnson tweeted “Ban mail-voting and Dominion voting
machines and pass mandatory voter ID, NOW.”128 Newsmax host Michelle Malkin posted a
tweet suggesting that Dominion was associated with Antifa: “Joe Oltmann (now banned on
Twitter) exposes pro-Antifa, cop hatred-inciting rants of #EricCoomer, VP of strategy/security of
Dominion Voting Systems. ‘What if I told you he is a major shareholder’ in Dominion & ‘owns
patents associated with other voting systems?’ #MalkinLive.”129
By mid-November, more evidence was published exposing the lies about Dominion.130
Fifty-nine specialists in election security publicly rebutted Newsmax’s claims about
Dominion.131 Newsmax knew about the statements debunking claims about Dominion rigging
122
Id. ¶ 101.
123
Id. ¶ 102.
124
Id.
125
Id. ¶ 103.
126
Id.
127
Id. ¶¶ 105-106.
128
Id. ¶ 105.
129
Id. ¶ 106.
130
Id. ¶¶ 107-108.
131
Id. ¶ 108.
15
the election because they were widely reported on and publicized.132 Indeed, Newsmax reported
these findings on its website, and Ms. Robinson continued to regularly respond to then-CISA
director Krebs’ tweets debunking false election fraud claims.133
I. NEWSMAX CREATES A CAMPAIGN THAT DOMINION RIGGED THE ELECTION.
Newsmax created a brand and campaign selling its audience on the idea that Dominion
rigged the election and stole it from former President Trump.134 Newsmax began this campaign
with a segment on the primetime show Greg Kelly Reports titled, “Democracy or Dominion.”135
On November 16, 2020, in its “Democracy or Dominion” segment, Newsmax and Mr.
Kelly rebroadcast and endorsed an interview that aired on Fox featuring Ms. Powell claiming
that Dominion’s voting software was designed to shift millions of votes from former President
Trump to President Biden.136 Mr. Kelly commented in the segment that “the truth is finally told”
and “the evidence is slowly emerging.”137 Mr. Kelly cut into Ms. Powell’s interview and
endorsed the claims about Dominion stating: “I believe her, and I don’t believe the critics and the
naysayers.”138
Later that day, Newsmax aired Ms. Powell’s comments about Dominion again alongside
additional remarks from Mr. Giuliani amplifying the claims about Dominion rigging the
election.139 In that segment, Newsmax anchor Emma Rechenberg, host of National Report, aired
Ms. Powell’s statements again and asked Joe DiGenova to weigh in.140 Mr. DiGenova stated:
Well the bottom line about Dominion is that it is a suspect company. It’s used in
twenty-seven states in the United States and there's a reason it isn’t used in the other
132
Id. ¶ 109.
133
Id.
134
Id. ¶ 110.
135
Id.
136
Id. ¶ 111.
137
Id.
138
Id. ¶ 112.
139
Id. ¶ 113.
140
Id. ¶ 114.
16
twenty th[ree]. They're smarter. It has an origin in Venezuela with friends of Hugo
Chavez. The company that runs it now has the counting done overseas in Germany
and Barcelona.141
The next day, Newsmax anchor Heather Childers interviewed Dick Morris.142 Ms. Childers
minimized CISA’s November 12, 2020 statement that the election was secure by falsely stating
that Dominion was a member of CISA’s board of directors.143 During the interview, Mr. Morris
also said that Dominion was a shell company and the real motivation behind Dominion rigging
the election was the Chinese communist party and Hugo Chavez supporters in Venezuela.144
Newsmax refused to retract these statements.145 Since this segment, Mr. Morris has a regular
show on Newsmax, Dick Morris Democracy.146
On November 17, 2020, Newsmax was the first of the television networks to broadcast
Patrick Byrne.147 On the National Report, Mr. Byrne claimed that he was funding “cyber
security experts” who had proven that Dominion machines were hacked in the 2018 election in
Dallas, Texas, and that same team had “data” proving that Dominion hacked “five counties” that
“flipped” the electoral college from former President Trump to President Biden.148 Mr. Byrne
elsewhere described these claims as being the “last act” in the same purported long-running
“deep state” conspiracy that he said had earlier involved him facilitating an $18 million bribe to
Hillary Clinton.149
141
Id.
142
Id. ¶ 115.
143
Id.
144
Id.
145
Id. ¶ 116.
146
Id.
147
Id. ¶ 117. On Byrne’s post promoting his Newsmax interview he captions the video “The Cone of Silence was
smashed today by NewsmaxTV. That itself will be a source of discuss [sic] sometime in the future. In the meantime,
enjoy. . . . Let the record show that numerous other journalists have had this story. . . None would run with the
story.” Id.
148
Id. ¶ 118.
149
Id.
17
J. DOMINION SENDS FACTS TO NEWSMAX TO REBUT NEWSMAX’S CLAIMS.
Dominion began circulating an email titled “SETTING THE RECORD STRAIGHT:
FACTS & RUMORS” with links to independent sources disproving claims made about
Dominion.150 Dominion maintained a page on its public website with this information from
November 11, 2020, onwards.151
On November 17, 2020, at 3:10 PM EST, Dominion sent its first “SETTING THE
RECORD STRAIGHT” email to Newsmax’s booking producer, Alicia Hesse.152 Ms. Hesse is
involved with soliciting guests to speak on Newsmax TV, including Mr. Kelly’s show.153
Newsmax believes that Ms. Hesse shared the contents of the emails she received from Dominion
with the hosts and other producers for the shows she books.154 Dominion did not receive a reply
from Newsmax to this email.155
K. NEWSMAX CONTINUES TO AIR ACCUSATIONS OF FRAUD AGAINST DOMINION AND
RECEIVES VIEWERSHIP BUMP.
On November 17, after Dominion sent the first “SETTING THE RECORD STRAIGHT”
email, Mr. Kelly hosted Ms. Powell on Greg Kelly Reports.156 Ms. Powell claimed to have
“evidence” of “the guy who founded” Dominion admitting “he can change a million votes, no
problem at all” and continued to falsely link Dominion with election rigging.157 Ms. Powell did
not have any such evidence.158
150
Id. ¶ 119.
151
Id.
152
Id. ¶ 120.
153
Id.
154
Id.
155
Id. ¶ 121.
156
Id. ¶ 122.
157
Id.
158
Id. ¶ 123.
18
Also on November 17, 2020, the Chairman of the Maricopa County Board of Supervisors
reported that there was no evidence of voter fraud and that the hand count audit showed the
machines generated an accurate count.159 The Associated Press then released a report debunking
the claim that Smartmatic owns Dominion.160 The Wall Street Journal also reported that
Dominion “was a linchpin in the 2020 election that federal and state officials praise as being free
from tampering.”161 The Editorial Board for The Wall Street Journal published a piece that same
day that refuted false claims about Dominion and stated, “there’s no good evidence of voting
problems that would come close to” calling into question Biden’s leads in the swing states.162
Dominion sent that article to Newsmax.163
On November 18, 2020, former President Trump called Mr. Ruddy.164 Mr. Ruddy
reported that former President Trump “said that its just incredible, the ratings you’re getting, and
everyone’s talking about it” and told Ruddy to “keep up the good work.”165 Mr. Ruddy tweeted
several times that day.166 First, Mr. Ruddy tweeted: “Fox News ‘stabbed us in the back.’ Is
Newsmax out new alternative?”167 Later that day, Mr. Ruddy tweeted: “Another call today from
@realDonaldTrump, he’s wowed by Newsmax TV’s ratings and big buzz. Says he’s gaining in
Michigan, more Coming! Keep watching @newsmax: nws.mx/tv.”168
Newsmax published on its website that it was telling “the stone-cold truth, and once you
get a taste of it, you will never tolerate being lied to again.”169 At the same time, Fox continued
159
Id. ¶ 124.
160
Id. ¶ 125.
161
Id. ¶ 126.
162
Id. ¶ 127.
163
Id.
164
Id. ¶ 128.
165
Id.
166
Id. ¶ 129.
167
Id.
168
Id. ¶ 130.
169
Id. ¶ 131.
19
to air accusations about Dominion.170 On November 19, 2020, in an interview between Lou
Dobbs and Ms. Powell on Fox, Mr. Dobbs endorsed Ms. Powell’s statement that “Smartmatic
owns Dominion.”171
On November 19, 2020, Newsmax continued to broadcast false claims about
Dominion.172 Over the course of three segments, Mr. Stinchfield combined Ms. Powell’s and
Mr. Giuliani’s statements about Dominion with his own story that he and his team had
independently uncovered the evidence that Dominion rigged the 2020 election.173 Mr.
Stinchfield described the allegations against Dominion as “what we here on Stinchfield have
been warning about for the past few weeks.”174 Mr. Stinchfield assured viewers that Ms. Powell
and Mr. Giuliani had “tons of evidence,” including “sworn witness affidavits” to back up their
claims about Dominion.175 Mr. Stinchfield also told his viewers that the evidence that Dominion
committed election fraud and “has ties to communist Venezuela” was “damning.”176 In the same
segment, Mr. Stinchfield replayed Ms. Powell’s press conference and added commentary that his
“investigative unit” had been “uncovering” the same claims about Dominion for weeks.177
Also on November 19, 2020, Fox’s Tucker Carlson publicly called out Ms. Powell for
failing to produce evidence to support the claims she had been making about Dominion.178 Mr.
Carlson’s staff checked the accuracy of Ms. Powell’s statements about Dominion with the Trump
campaign who said that Ms. Powell had “never given them any evidence either” and Mr. Carlson
170
Id. ¶ 132.
171
Id.
172
Id. ¶ 133.
173
Id.
174
Id.
175
Id. ¶ 134.
176
Id.
177
Id. ¶ 136.
178
Id. ¶ 138.
20
concluded that Ms. Powell “never demonstrated that a single actual vote was moved
illegitimately by software from one candidate to another. Not one.”179
Despite the reporting by Fox, Newsmax continued to broadcast stories about Dominion
and election rigging.180 Newsmax’s Chris Salcedo aired clips of Mr. Giuliani making allegations
against Dominion.181 Mr. Salcedo said that Stinchfield has been good about exploring Dominion
voting machines and endorsed the false claims that Dominion was owned by affiliates of Chavez
and Maduro and that votes were counted overseas.182
On November 19, 2020, Georgia also completed its 100% hand audit recount.183
Georgia’s Secretary of State, Brad Raffensperger reported that the audit “upheld and reaffirmed
the original outcome produced by the machine tally of votes cast.”184 Newsmax knew about the
accuracy of Dominion’s voting systems and reported the results of the Georgia hand count on its
website the same day.185
The next day, November 20, 2020, Newsmax brought Ms. Powell back on air to the
Howie Carr Show.186 Ms. Powell claimed that Dominion’s voting system used an “algorithm” to
switch ten million votes from former President Trump to President Biden.187 Ms. Powell also
claimed that executives at Dominion went to Detroit on the night of the election when votes were
being counted and challenged.188 In the same segment, Ms. Powell claimed to have evidence
that Eric Coomer, who at the time worked for Dominion, was on “a conference call or
179
Id.
180
Id. ¶ 139.
181
Id.
182
Id.
183
Id. ¶¶ 137, 140.
184
Id. ¶ 140.
185
Id. ¶ 137.
186
Id. ¶ 142.
187
Id.
188
Id.
21
something, a Zoom supposedly with the antifa and he said don't worry about Trump, I’ve already
made sure he’s going to lose the election.”189 When Ms. Powell made these claims on air, the
Michigan Secretary of State’s website had already publicly debunked allegations of Dominion
impacting the vote count in Detroit.190
On November 21, 2020, Newsmax invited Ms. Powell back on air.191 Ms. Powell opined
that the Georgia certification was a “total farce,” and that Georgia’s Republican Governor, Brian
Kemp, and Republican Secretary of State, Brad Raffensperger, had received bribes from
Dominion and were in on the scam.192 Governor Kemp and Secretary of State Raffensperger
received death threats after these claims.193
Newsmax’s revenues tripled in the fourth quarter compared to the prior year and ad
revenues were expected to double again by the end of the first quarter of 2021.194 On November
23, 2020, Mr. Ruddy stated that Newsmax was on a “hiring splurge” following the election.195
L. DOMINION SENDS NEWSMAX MULTIPLE EMAILS REBUTTING FALSE CLAIMS AND
NEWSMAX CONTINUES TO AIR ACCUSATIONS OF FRAUD AGAINST DOMINION.
On November 22, 2020, the Trump Campaign disavowed Ms. Powell by issuing the
following statement: “Sidney Powell is practicing law on her own. She is not a member of the
Trump Legal Team. She is also not a lawyer for the President in his personal capacity.”196 Other
prominent Republicans acknowledged that statements by Ms. Powell and Mr. Giuliani about
election fraud were unsupported.197
189
Id.
190
Id. ¶ 143.
191
Id. ¶ 144.
192
Id.
193
Id. ¶ 145.
194
Id. ¶ 146.
195
Id.
196
Id. ¶ 147.
197
Id. ¶¶ 148-149.
22
Even after prominent Republicans and the Trump Campaign itself publicly disavowed
Ms. Powell, Newsmax continued to air stories about Dominion and election rigging.198 On
November 23, 2020, Newsmax host Benny Johnson stated on The Benny Report that Dominion
employs “Trump-hating Antifa members as security engineers,” its voting systems are used in
Venezuela, and the votes were counted off American soil.199
On November 24, 2020, Dominion sent another email to Ms. Hesse.200 The email
outlined the many statements, with links, made by conservative leaders over the prior 24 hours
debunking false claims about Dominion.201
On November 25, 2020, CNN ran an article entitled “Fox News staffers thought
Newsmax was a joke. But they’re not laughing anymore.”202 The article discussed the concern at
Fox about Newsmax’s growing viewership in the conservative media space because of
Newsmax’s election reporting and radical ideas.203 Mr. Ruddy retweeted the article.204
On November 26, 2020, Dominion sent another “SETTING THE RECORD
STRAIGHT” email to Ms. Hesse, stating specific facts debunking claims that Dominion rigged
the election in Pennsylvania.205 For example, Dominion did not operate in many highly
contested districts and former President Trump won twelve out of the fourteen counties in which
Dominion operated.206
On December 1, 2020, then-U.S. Attorney General Bill Barr stated that the DHS and DOJ
found nothing substantiating the claim that voting machines were programmed to skew election
198
Id. ¶ 150.
199
Id.
200
Id. ¶ 151.
201
Id.
202
Id. ¶ 152.
203
Id.
204
Id.
205
Id. ¶ 153.
206
Id.
23
results.207 Newsmax knew about Barr’s statement and the findings and reported the facts on
Newsmax.com the same day.208 On December 3, 2020, Dominion sent another fact sheet to Ms.
Hesse, this time focusing on debunking claims about Dominion rigging the election in
Georgia.209 On December 7, 2020, a second Georgia hand recount again confirmed the results
and accuracy of Dominion machines.210 Newsmax reported this development on its website.211
Nonetheless, Newsmax continued to host Ms. Powell and Newsmax personalities endorsed her
fraud claims.212
Newsmax’s strategy paid off with increased viewership.213 On December 8, 2020,
Newsmax TV “notched a ratings win over Fox News Channel for the very first time.”214 The
next day, Mr. Ruddy boasted about the ratings win on Twitter.215 Meanwhile, Fox continued to
report on election fraud.216
M. NEWSMAX PROVIDES A PLATFORM FOR MR. MORRIS AND MR. LINDELL.
On December 14, 2020, Newsmax host John Bachman interviewed Mr. Morris.217 Mr.
Morris reported false claims that Dominion was invented by people working for Hugo Chavez
and was designed so votes can be altered and not traced.218 Two months later Mr. Morris
received his own show on Newsmax, Dick Morris Democracy.219
207
Id. ¶ 157.
208
Id. ¶ 158.
209
Id. ¶ 159.
210
Id. ¶ 160.
211
Id.
212
Id. ¶ 161.
213
Id. ¶ 162.
214
Id.
215
Id. ¶ 163.
216
Id. ¶ 164. On December 10, 2020, Fox tweeted a promotion for Lou Dobbs Tonight stating, “The 2020 Election is
a cyber Pearl Harbor: The leftwing establishment have aligned their forces to overthrow the United States
government #MAGA #AmericaFirst #Dobbs.” Id.
217
Id. ¶ 166.
218
Id.
219
Id.
24
On December 17, 2020, Mr. Stinchfield had Mr. Lindell appear on his show.220 Mr.
Lindell spread false claims about Dominion, including that Dominion’s algorithms intentionally
changed votes in the middle of the night, which cost former President Trump the election.221 Mr.
Stinchfield reminded viewers that Mr. Lindell was “a big time advertiser here on Newsmax,” for
which Newsmax was “grateful.”222
On December 18, 2020, Newsmax co-anchors Bob Sellers and Heather Childers invited
Mr. Morris back on air.223 Mr. Morris made false claims about Dominion including that the
Antrim County, Michigan audit proved that the Michigan election results were altered by
Dominion and Smartmatic.224 These claims were false, and the Michigan audit had already
concluded the opposite, a story Newsmax had posted to Newsmax.com the day before.225
N. DOMINION DEMANDS THAT NEWSMAX RETRACT ITS FALSE STATEMENTS, BUT
NEWSMAX REFUSES.
On December 18, 2020, Dominion sent a formal retraction demand letter to Newsmax.226
The letter demanded that Newsmax stop publishing false claims about Dominion.227 The letter
reiterated the truth about Dominion which was also included in the multiple emails Dominion
previously sent to Newsmax, and in the public domain from election officials and other news
agencies.228 The letter attached a 15-page retraction demand letter that Dominion had sent to
Ms. Powell two days earlier concerning the nearly identical lies about Dominion she had been
spreading since election day.229
220
Id. ¶ 167.
221
Id.
222
Id.
223
Id. ¶ 168.
224
Id.
225
Id. ¶ 169.
226
Id. ¶ 177.
227
Id.
228
Id.
229
Id. ¶ 178.
25
Newsmax refused to retract.230 Instead, a few hours after Dominion sent the letter to
Newsmax, Newsmax and Mr. Kelly invited Mr. Ramsland on air to promote Ramsland’s Antrim
County Report.231 Before the 2020 election, Mr. Ramsland claimed that the 2018 U.S.
congressional election in Dallas, Texas and the 2019 gubernatorial election in Kentucky were
“rigged by voting machines with links to Smartmatic and using Venezuelan election-stealing
software controlled by a George Soros operative, and that votes had been sent to CIA-funded
databases in Spain where they were changed and sent back to the United States.”232 These
claims were rejected as unverifiable and have been debunked.233
Mr. Ramsland filed numerous affidavits recycling arguments from his 2018 election
fraud allegations in support of lawsuits brought by Ms. Powell and others seeking to throw out
the 2020 Presidential Election results in several states.234 No court found any of Mr. Ramsland’s
affidavits to have merit.235 Mr. Ramsland “was brought in by [Mr.] Byrne, [Mr.] Giuliani and
others to write up a purportedly independent ‘report’ on the election results in Antrim County,
Michigan,” which claimed that Dominion machines were designed to and did switch votes from
former President Trump to President Biden.236 The report was released on December 13,
2020.237 Antrim County officials and other election experts, including Michigan’s Attorney
General and Secretary of State, explained that the report was false, unsupported, and used
incorrect technical terms.238 The details of how deeply flawed the report was had been publicly
230
Id. ¶ 179.
231
Id.
232
Id. ¶ 31.
233
Id. Mr. Byrne, Ms. Powell, Mr. Giuliani and others promoted Mr. Ramsland’s debunked claims about the 2018
and 2019 elections and promoted them to a global audience by working with Newsmax, OAN, Fox, and other media
outlets. Id. ¶ 32.
234
Id. ¶ 33.
235
Id.
236
Id. ¶ 34.
237
Id. ¶ 171.
238
Id. ¶¶ 34, 172-176.
26
known and readily available since at least November 7.239 Additionally, on June 23, 2021, the
Republican-led Michigan Senate Oversight Committee released a 55-page report, which found
no evidence of widespread or systemic fraud in Michigan’s prosecution of the 2020 Presidential
Election.240 Despite these facts, Mr. Kelly had Mr. Ramsland on his show on December 18,
2020 and endorsed the claims in the Antrim County Report.241
O. NEWSMAX ISSUES A CLARIFICATION REGARDING DOMINION.
On December 19, 2020, Newsmax issued a “clarification” regarding its statements about
Dominion rigging the election.242 The clarification was titled “Facts about Dominion,
Smartmatic You Should Know.”243 The clarification acknowledged that: “No evidence has been
offered that Dominion or Smartmatic used software or reprogrammed software that manipulated
votes in the 2020 election.”244 The clarification was not a wholesale retraction and was couched
in terms that avoided correcting previous statements made by Newsmax.245 For instance the
clarification stated: “Dominion has stated its company has no ownership relationship with the
House Speaker Nancy Pelosi's family, Sen. Dianne Feinstein's family, the Clinton family, Hugo
Chavez, or the government of Venezuela.”246
P. NEWSMAX INVITES MR. LINDELL ON THE AIR AGAIN.
On December 21, 2020, two days after issuing its clarification, Newsmax invited Mr.
Lindell on air.247 Sebastian Gorka was guest hosting the Greg Kelly Reports and prefaced the
Lindell segment by telling viewers that Newsmax was “not going to ignore” alleged evidence of
239
Id. ¶ 172.
240
Id. ¶ 34
241
Id. ¶ 179.
242
Id. ¶ 180.
243
Id.
244
Id. ¶ 181.
245
Id.
246
Id.
247
Id. ¶ 184.
27
election fraud, “because we fight for the truth and we believe that this is still the greatest nation
on God’s earth and nobody gets to steal it from us.”248 Mr. Lindell began to discuss false claims
of voter fraud and Dominion.249 While Mr. Gorka cut in to tell Mr. Lindell “I don’t want to
discuss,” he did not tell his audience that Mr. Lindell’s statements were false.250
Q. DOMINION SENDS NEWSMAX A SECOND RETRACTION DEMAND LETTER AND
NEWSMAX RESPONDS.
On December 22, 2020, Dominion sent Newsmax a second retraction demand letter.251
The letter explained that Dominion was “disappointed that Newsmax continues to publish lies
about US Dominion Inc.,” despite Dominion’s first retraction demand letter.252
Newsmax responded to Dominion’s letters on December 28, 2020.253 Newsmax’s
lawyers acknowledged receipt of both retraction demand letters but ignored or denied that
Newsmax made false statements about Dominion in broadcasts.254 Newsmax’s response stated:
“At no time did the hosts or Newsmax indicate support for or agreement with her [Powell’s]
allegations. At the same time, they did not have any specific knowledge that the evidence she
cited was non-existent, nor that her claims were false.”255
Newsmax removed two stories espousing false claims made by Ms. Powell from its
website but then continued to publish lies about Dominion.256 For example, on February 2,
2021, during an interview of Mr. Lindell about his recent Twitter ban, Mr. Lindell tried to claim
he has “100% proof” of election fraud via Dominions voting systems.257 Newsmax co-anchor
248
Id.
249
Id.
250
Id.
251
Id. ¶ 185.
252
Id.
253
Id. ¶ 186.
254
Id.
255
Id.
256
Id. ¶ 187.
257
Id. ¶ 188.
28
Bob Sellers interrupted Mr. Lindell, told the audience that Newsmax had not verified any of his
claims, and then stormed off set.258 However, the next day, facing backlash from Newsmax and
its audience, Mr. Sellers apologized and called Mr. Lindell a “friend of this network” who would
continue to be an important guest.259 Over the next few months, Newsmax continued to push a
fraud narrative that was now inextricably linked to Dominion through Newsmax’s prior false
statements.260
On April 30, 2021, Newsmax issued an apology statement to Dr. Eric Coomer,
Dominion’s then-Director of Product Strategy and Security.261 Newsmax admitted that its hosts
and guests published unproven claims that “Dr. Coomer played a role in manipulating Dominion
voting machines, Dominion voting software, and the final vote counts in the 2020 presidential
election” even though Newsmax had “no evidence that such allegations were true.”262 However,
Newsmax stated only that Dr. Coomer was not involved in the “manipulation” of voting
machines during the 2020 election, and did not absolve Dominion of responsibility for alleged
election fraud.263 Newsmax continued to promote individuals who spread lies about Dominion
including Mr. Lindell through July 2021.264
R. NEWSMAX WRITES A LETTER TO DOMINION.
Mr. Ruddy wrote a letter to Dominion Founder and CEO John Poulos on May 24,
2021.265 Mr. Ruddy claimed that Newsmax never received Dominion’s December 18 retraction
demand letter.266 However, Newsmax’s lawyers admitted that “the email addresses used for Mr.
258
Id.
259
Id.
260
Id. ¶ 189.
261
Id. ¶ 190.
262
Id.
263
Id.
264
Id. ¶ 192-193.
265
Id. ¶ 194.
266
Id. ¶ 195
29
Ruddy and Mr. Chandler” to send the letter “appear to be correct.”267 Mr. Ruddy next claimed
that neither he nor Newsmax generally knew that information it published about Dominion were
lies and that they continue to be unaware “of any independent review and examination of the
voting software.”268 Mr. Ruddy also claimed that all Newsmax did was “report then President
Trump’s public claims, the claims made by his lawyers, and claims they made in legal
documents in several states.”269
S. FURTHER EVIDENCE COMES OUT DISPROVING FALSE CLAIMS ABOUT DOMINION.
More evidence surfaced demonstrating the falsity of claims Newsmax made about
Dominion in the months following Mr. Ruddy’s letter.270 In June, 2021, the Republican-led
Michigan Senate Oversight Committee released a 55-page report, which found no evidence of
widespread or systemic fraud in Michigan’s prosecution of the 2020 Presidential Election.271
The report specifically called out individuals like Mr. Lindell and Mr. Ramsland for their false
claims about systemic fraud in Michigan, stating that they “have been utilizing misleading and
false information about Antrim County to raise money or publicity for their own ends.”272
Additionally, on June 24, 2021, Mr. Giuliani was suspended from the practice of law in New
York after it was determined he had “made knowing false and misleading factual statements to
support his claim that the presidential election was stolen from his client [Donald Trump],”
based on “uncontroverted evidence.”273
267
Id.
268
Id. ¶ 196.
269
Id. ¶ 197.
270
Id. ¶ 198.
271
Id.
272
Id.
273
Id. ¶ 199.
30
T. THE DOMINION CLAIMS GO VIRAL AND NEWSMAX PURPORTEDLY BENEFITS.
Newsmax’s ratings jumped almost ten times in the week after the election.274 Daily
active users of Newsmax’s mobile app increased by a multiple of almost 14 from October 20,
2020 to November 24, 2020.275 Newsmax secured 32 times more downloads of its mobile apps
by February 2021 than it had in the weeks prior to the election.276 The lies about Dominion went
viral and millions of Americans believe the false claims that Dominion rigged the 2020
election.277
Newsmax’s website traffic spiked by 145% in December 2020 over the previous year.278
In November 2020, Newsmax’s app was downloaded over 3 million times which Newsmax
attributed to “attracting millions who are leaving Fox News and switching to Newsmax TV.”279
Newsmax received a rise in advertising revenues as well.280
U. DOMINION SUFFERS HARM FROM THE FRAUD ACCUSATIONS.
The viral claims linked Dominion to fraud.281 Dominion and its employees have received
death threats and calls for jail time.282 On July 4, 2021, someone threw a brick through the
window of a Dominion office.283 Dominion has expended over $600,000 on private security
because of these threats.284 Dominion has also spent more than $700,000 attempting to mitigate
harm caused by the viral disinformation campaign.285 Election officials—Dominion’s actual and
274
Id. ¶ 204.
275
Id.
276
Id.
277
Id. ¶¶ 205-210.
278
Id. ¶ 212.
279
Id.
280
Id. ¶ 213.
281
See id. ¶¶ 214-216.
282
Id. ¶¶ 217-223.
283
Id. ¶ 224.
284
Id. ¶ 225.
285
Id. ¶ 226.
31
potential customers—have received emails, letters, and calls from their constituents demanding
that they cease and avoid contracting with Dominion or using Dominion machines.286
Legislators in various states where Dominion contracts—including Arizona, California,
Colorado, Florida, Michigan, Ohio and Pennsylvania—stated their intent to review and reassess
the Dominion contracts.287 Louisiana cancelled its reassessment and bid process, prohibiting
Dominion from securing a new $100-million-plus contract.288 Louisiana’s Secretary of State,
Kyle Ardoin said Louisiana cancelled the bid process because of “damage to voter confidence
done by those who willfully spread misinformation and disinformation.”289 Given the long-term
nature of Dominion’s contracts, the economic harm Dominion suffers will continue to play out
over the next years.290 Election officials have told Dominion that it is losing business “because
of the Dominion name” and Dominion stands to lose at least $70 million in net profits.291
The disinformation campaign caused numerous states and local governments to review
and potentially cancel contracts with Dominion.292 Additionally, the disinformation campaign
has spurred sham audits which continue to harm Dominion.293 Notably, an audit conducted in
Arizona was discredited by independent election experts as a sham.294 Other jurisdictions across
the country—including counties in Pennsylvania and Georgia—have conducted sham audits.295
286
Id. ¶ 228.
287
Id. ¶ 229.
288
Id. ¶ 230.
289
Id. ¶ 231.
290
Id. ¶ 232.
291
Id.
292
Id. ¶¶ 233-236.
293
Id. ¶ 236.
294
Id. ¶ 237-240.
295
Id. ¶ 241-246.
32
V. SPECIFIC ALLEGEDLY FALSE AND DEFAMATORY STATEMENTS
On November 10, 2020, Newsmax’s White House Correspondent, Ms. Robinson,
tweeted that: “All crooked roads lead to Dominion Voting Systems” in direct response to her
retweet of the false statement, “Little tidbit: Smartmatic is the electronic voting systems
company that has been used in Venezuela since 2004. Its name is synonymous with fraud for
most Venezuelans. Since 2009, Smartmatic has been a subsidiary of Dominion.”296
On a November 16, 2020, Greg Kelly Reports broadcast in a segment titled “Democracy
or Dominion”, which Newsmax broadcast live on television, and republished on Newsmax’s
YouTube channel, Newsmax’s Facebook account, and Newsmax’s Twitter account:
Greg Kelly: . . . I think this country, this planet, could be in for the awakening of
the millennium, something that we haven’t seen in thousands of years, as this
election, the truth is finally told. . . . Folks, I think we will be in for the shock of
our lifetime this is going to be wild; and the evidence is slowly emerging. Yes, I
would like to have seen it yesterday; but the president has some very, very smart
lawyers. One of my favorites, Sidney Powell. She helped Michael Flynn beat the
travesty of a case that was lodged against him. She’s a former federal prosecutor.
And you tell me, does she -- seem like she's speaking the truth? She spoke to Maria
Bartiromo over the weekend.
Sidney Powell: President Trump won by not just hundreds of thousands of votes,
but by millions of votes, that were shifted by the software that was designed
expressly for that purpose. . . . It was exported internationally for profit by the
people that are behind Smartmatic and Dominion. They did this on purpose. It was
calculated. They’ve done it before. We have evidence from 2016 in California. We
have so much evidence, I feel like it’s coming in through a fire hose.
Kelly: I believe her. And I don’t believe the critics and the naysayers. . . .
Kelly: Talking about Dominion. This company, the software; there are a lot of
concerns. And what she’s saying, I’m believing. Big problems, vulnerabilities,
votes that can be switched. It happened before in South Carolina. And Sidney
Powell is right . . . .297
On the November 16, 2020, Greg Kelly Reports broadcast:
296
Id. ¶ 248.
297
Id.
33
Dick Morris: . . . I believe that this election was absolutely stolen.
Greg Kelly: . . . I agree with you, by the way. . . .
Morris: . . . You asked me if I was confident that it had been stolen. I certainly am,
and I think we have to fight and fight and fight to get the truth out here about
Dominion and about the recounts. . . .298
On the November 16, 2020, National Report broadcast:299
Sidney Powell: We’re fixing to overturn the results of the election in multiple states.
And President Trump won by, not just hundreds of thousands of votes, but by
millions of votes, that were shifted by this software that was designed expressly for
that purpose. We have sworn witness testimony of why the software was designed;
it was designed to rig elections.
...
Rechenberg (Newsmax host): And Joe, I’ll go back to you then, too, because it
wasn’t just the observers staying out of the counting area, it was also this Dominion
voting service, this -- this technology here. What have you researched about that,
and what’s the Trump legal team doing in regards to Dominion?
DiGenova: Well, the bottom line about Dominion is -- is that it is a suspect
company. . . . It has an origin in Venezuela with friends of Hugo Chavez. The
company that runs it now has the counting done overseas in Germany and
Barcelona.300
On the November 17, 2020, American Agenda broadcast:
Heather Childers: . . . you know, everyone saw the statement that came out
allegedly from the DHS that said this was the safest election ever, I think, in the
history of elections. But what people did not know, I didn’t realize, is sitting on that
board of the Department of Homeland Security, Cybersecurity and Infrastructure
Security Agency, was, in fact, Dominion and Smartmatic.
Dick Morris: Right, that’s true. And also remember, Dominion is a -- kind of a shell
company. The real owners, the real motivators of Dominion are the Chinese
Communist Party and two Chavez supporters in Venezuela, who shortly after
Chavez seized power, invented the Dominion Voting System as a method of
stealing elections in Venezuela. And as a result, they were kicked out of Venezuela,
Argentina, and a whole host of other countries. . . .
298
Id.
299
Newsmax broadcast live on television and republished on Newsmax’s Facebook account and Instagram account.
Id.
300
Id.
34
Bob Sellers: . . . By the way, folks, you can get Dick’s up-to-the-minute news by
going to DickMorris.com, subscribing free.301
On the November 17, 2020, National Report with Emma Rechenberg broadcast:
Emma Rechenberg: If you don’t mind, kind of break down how you’re connected
to this Dominion machine voting system and why you have some concerns about
it. . . .
Patrick Byrne: . . . This election was hacked. This election was hacked. The
outcome has been rigged. I did not vote for Trump. I’m a small L libertarian, never
voted Republican or Democrat for president in my life. I’m saying this election was
rigged. I’m a CEO who built a $2 billion tech company. I don’t mean to sound like
I’m beating my chest. I was national entrepreneur of the year, you go back a decade,
for building a $2 billion tech company, Overstock. I know what I’m talking about.
Yeah, I’m also a Ph.D. from Stanford and a Marshall scholar besides. I’m putting
all that credibility on the line. This election was hacked, the outcome was rigged
and should be completely ignored or discounted, I mean, through the court system.
The courts should throw it out. . . . How I know this is this.
Rechenberg: Right. You sound like Trump’s legal team right now, so we’re all on
the same page. You sound like what their claims are as well, and clearly you have
the experience and the expertise in regards to maybe shedding some light on how
you know that to be true, yeah.
Byrne: Okay. Here’s how I know that. I’m backing -- I have the data incidentally.
I have the data, the electronics, everything. I have been backing and supporting
some cyber security experts, a number of different groups. This is how it came
about. In 2018, the Dallas election had irregularities. The Texas state government
hired an elite cyber security company to go in and study what had happened in
2018, and they reverse engineered it. And when you reverse engineer something,
that’s when you take the final product and you get a bunch of people to study and
they break it apart and figure out how you built it so they can go copy it. These
guys reverse engineered the 2018 Dallas irregularities which turned out to be a
hack. Dominion ran it. It was Dominion’s technology that ran it. . . .
...
. . . I’m putting my -- I was a Marshall scholar, a Ph.D. from Stanford. . . . I built a
$2 billion company. I’m putting it all on the line. This entire election was hacked.
It’s far easier to have hacked this than a PayPal or your Venmo account.
Rechenberg: Sure. I mean, we’ve seen hacks on major social media outlets before
in this year alone. My mind goes to Twitter. Are you in touch with the Trump
campaign, and would you advise when they are pursuing these lawsuits specifically
about Dominion, that they would bring on board someone who would be able to
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prove that they could, in fact, change votes for Donald Trump to Joe Biden? Would
that be provable in court if you brought on the right person?
Byrne: Absolutely provable. We have the data. We have the data. You do not have
to worry. The only question is how quickly can the process intake versus how
quickly the goons are trying to shut down the process so they can seal this all in
cement. Now, I’m saying this again. I did not vote for Mr. Trump. I respect him.
He got elected President. He’s -- so this isn’t a Trump supporter coming out and
saying this. I’m a tech CEO, national entrepreneur of the year for building a tech
company, if you go back about -- Ernst and Young about 10 years ago. I know what
I’m talking about, and this thing is child’s play to have beaten. It’s embarrassing.
And Trump is actually correct, his campaign is correct.
Rechenberg: Have they reached out to you?
Byrne: I’m one step ahead of the sheriffs myself because of the fact that I’ve come
out about some things, so I don’t work for them, anything like that. I’m not a donor
to them, but I’ve been using my own resources to unscramble this and I’m trying
to feed it into the system. Yes, the system is taking it in. They have their other
sources, but we have all the goods, they’re absolutely correct.
Rechenberg: And do you believe it was millions of votes that were again flipped
from Donald Trump to Joe Biden?
Byrne: Well, the main event is not the total number of millions. It was not
widespread deep. It was narrow and deep. It was very strategic.
Rechenberg: In select states, you’re saying?
Byrne: Select counties.
Rechenberg: Okay.
Byrne: Five counties that really matter, and they realize if you hack these five –
well, they’re very -- a small number of places, if you defeated the election you could
flip the states and you could flip from that flip the electoral college. And how it was
done -- I mean people can see this in news they already know if you think about
this. Doesn’t it seem a little odd that Mr. Biden was behind in states, you know,
600,000 votes, and then he has this come from behind victory and wins by 14,000?
Rechenberg: I know. That’s what so many people are asking. That is what a lot of
people are asking.
Byrne: 800,000.302
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On the November 17, 2020, Greg Kelly Reports broadcast:303
Powell: . . . we know Dominion has a long history of rigging elections. That’s what
it was created to do to begin with. . . . We’ve got increasingly mounting evidence
of significant fraud across multiple states that cast in the question the validity of the
elections in every swing state; including Nevada and Arizona and Michigan,
Wisconsin, Georgia. And it went beyond that, too.
Kelly: You know regarding Dominion. . . .
Powell: And worse than that it had a backdoor so it could be manipulated by anyone
who could access it through that backdoor. And that was a deliberate feature the
affidavit of the young military officer we provided yesterday to the public explains
how it was created for that very purpose, so Maduro -- I mean, so Hugo Chavez
would never lose another election. And he did not after that software was created.
He won every single election. And then they exported it to Argentina, and other
countries in South America, and then they brought it here. And they – it’s a foreign
company no matter how you look at it. So they’ve already violated the President’s
order against foreign interference in our elections. Our votes were actually
eventually counted in Barcelona, Spain or Frankfurt, Germany on foreign servers.
It’s absolutely stunning. And what’s really stunning is the effort that is being
mounted against getting the truth out on this. But you have to realize that every tech
company, every media company, every social media company, scads of globalist
corporations have been doing business in countries with these dictators that have
been installed through this rigged election system for decades. The corruption is
actually worldwide in [sic] going to upset a countless number of elections across
this country and -- and around the world.
Kelly: All right.
Powell: So we need to do that to get rid of the corruption.
Kelly: It does make a lot of sense now. . .
Powell: . . . We can -- got the evidence from the word -- the own mouths of the guy
who founded the company. I haven't even had a chance to get that out to the public
yet, but they admit -- the founder of the company admits, he can change a million
votes no problem at all.
Kelly: The founder of Dominion admitted a long time ago, recently to you, can --
tell us more, please.
Powell: Publicly. I will -- I will tweet out the video later, and I’ll tag you in it.
Kelly: Please do. @GregKellyUSA if you don’t mind. . . .
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...
Powell: . . . I think we’ll find he had at least 80 million votes. The only reason the
glitches happened in the system was because he was so -- he had so far many more
votes than they had calculated in advance, their algorithms wouldn’t perform the
functions they had originally performed or were set to perform. They couldn’t make
up the vote count he had gotten so many hundreds of thousands more than they
planned. So that’s when they had to stop the counting and come up with a way to
back fill the votes or destroy votes for Trump while they fabricated votes for Biden.
Kelly: Sidney Powell, who is a former federal prosecutor, by the way, spent ten
years working for the government. Good luck. And by the way, very quickly, you
have evidence, it’s coming in fast. There is a reason for not making public, correct?
I mean, you’re going to have a hostile media picking it apart, possibly trying to
destroy your case before you can even make it; is that part of your thinking? Very
briefly, if you don’t mind.
...
Kelly: Well, millions are praying for you and with you. And find her on Twitter,
the least we can do. SidneyPowell1. @SidneyPowell1, the numeral one. We
appreciate it so much. Good luck, and please stay safe.304
On the November 17, 2020, Wake Up America broadcast:305
Emerald Robinson: . . . [I]n the last 24 hours she has released a very long detailed
whistleblower statement that she says is by a high-ranking military official with
firsthand knowledge of Dominion Voting Systems, and how they can be misused.
In the statement the whistleblower describes the evolution of Dominion Voting
machines and Smartmatic software. Smartmatic software is what was used by Hugo
Chavez and his successor to fix elections in Venezuela. This whistleblower said
that the software was -- was developed in conjunction with Chavez in order to
appease his desires to manipulate the vote in Venezuela in a way that could not be
detected. The whistleblower go to -- went on to describe in detail his firsthand
experience watching the votes being manipulated in Venezuela in their 2013
presidential elections. He goes on to say that the Smartmatic software is -- that all
the vote tabulating machines, including Dominion Voting machines, uses a
derivative or a descendant of Smartmatic software saying that it’s in the DNA of
every software program used by every voting machine. In the statement he says
quote: “The fact that the voting machine displays a voting result that the voter
intends and then prints out a paper ballot which reflects that change does not matter.
It is the software that counts the digitized vote and reports the results. The software
itself is the one that changes the information electronically to the result that the
operator of the software and vote counting system intends to produce that counts.
He says that he came forward because he’s concerned about what he’s seeing in the
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Newsmax broadcast live on television and republished on Newsmax’s Twitter account. Id.
38
2020 presidential election saying, quote: “The circumstances and events are eerily
reminiscent of what happened with Smartmatic software electronically changing
votes in the 2013 presidential election in Venezuela.” He describes what he saw on
election night in five key, battleground states using Dominion Voting Systems, that
includes Georgia, where the vote count was stopped and went offline for several
hours when President Trump was ahead in the vote; when they came back online,
later in the wee hours of the morning, then Joe Biden had taken the lead
significantly.306
On the November 19, 2020, Stinchfield broadcast:
Sidney Powell: . . . votes from President Trump and flipped them to President
Biden; which we might never uncovered had the votes for President Trump not
been so overwhelming in so many of these states that it broke the algorithm that
have been plugged into the system, and that’s what caused them to have to shut
down.
Grant Stinchfield: This is unbelievable. That’s President Trump’s attorney, Sidney
Powell, laying out evidence that a corrupt algorithm in the Dominion Voting
System starts switching votes from President Trump to Biden on election night, and
it’s such a massive scale it crashes the system. That’s when we see the (inaudible)
them all stop counting. This is why multiple states stopped counting ballots in the
middle of the night, she says. But she also says the states, what they did afterwards,
was absolutely shocking.
Powell: That’s when they came in the back door with all the mail-in -- mail-in
ballots, many of which they had actually fabricated. Some were on pristine paper
with identically matching perfect circled dots for Mr. Biden; others were shoved in,
in batches. They’re always put in a certain number of batches, and people would
rerun the same batch. This corresponds to our statistical evidence that shows
incredible spikes in the vote counts at particular times.
Stinchfield: So she says the algorithm was designed to crash allowing these states
to shut down and usher in thousands of fake ballots for Biden. It all makes sense
now, if this is true, right? And she says it proves all the research that our
investigative unit here on Stinchfield has been uncovering. . . .
...
Stinchfield: … The bottom line is, the media is going to ignore all this anyway. Not
us though. That’s Jenna Ellis, of course, ripping into the media naysayers who been
hounding the president’s campaign for proof of widespread voter fraud. Today the
campaign, as we said, dropped a bomb on the left detailing some of the evidence
they have been able to compile so far and it is damning. . . .307
306
Id.
307
Id.
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On the November 19, 2020, Chris Salcedo Show broadcast:
Grant Stinchfield: . . . but I think if you’re going to prove fraud, the electronic
pathway to that is the way you’re going to have to do it, and it may be the most
simple way to do it. We’ve been on the forefront on our show Stinchfield of going
into the Dominion Voting Systems. . .
Chris Salcedo: . . . Stinchfield has been very good on the forefront of exploring the
Dominion Voting Machines, Salcedo Show has been exploring and trying to sound
the alarm bells for -- for months now, about how our votes are tabulated outside the
country. Rudy Giuliani spoke on this today. And -- and just listen to him lay this
out. I -- my jaw dropped because it was -- A, it was validation from what we’ve
been reporting. And B, to hear Rudy Giuliani talking about it was just amazing.
Listen.
Rudy Giuliani: . . . you should be more astounded by the fact that our votes are
counted in Germany and in Spain by a company owned by affiliates of Chavez and
Maduro. . . .
Salcedo: . . . number two -- I mean, the fact they were able to lay out that case,
Grant, was just -- jaw dropping to me.
Stinchfield: . . . we saw, Chris that these votes had gone through a server in
Frankfurt, Germany. I know there was a lot of talk about what happened to these
servers in Frankfurt, Germany; what’s confirmed and what’s not. But what I can
tell you is the people that I’ve talked to absolutely proved that votes were going
from certain states through this server. And lo and behold, we put up the IP address
of that Frankfurt server, the next day, after Stinchfield aired that, the server was
taken offline, Chris. You can't even find it anymore.308
On the November 20, 2020, The Howie Carr Show broadcast:
Sidney Powell: . . . a lot of evidence of fraud is going to be coming out next week.
I’ve got just more than I can say grace over right now coming in every day. It only
gets worse and worse. This was very widespread. Very deliberate. Very well-
funded. . . .
...
Powell: Yeah, we have a lot of extremely solid evidence. It’s beyond impressive
and absolutely terrifying.
...
Howie Carr: So how many fraudulent votes do you think that Joe Biden had on his
side . . . of the slate?
308
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Powell: Probably at least ten million.
Carr: Ten million fraudulent votes?
...
Carr: So did -- did most of these votes disappear for the President and appear for
Joe Biden in the -- in those states that are still being fought over or -- or did this go
on -- how many states did this go on in?
Powell: I think the – well, there are several ways that they did this. One was an
algorithm that I believe they ran nationwide, but I can’t say that for sure yet,
because we haven’t had the time to run the data nationwide. But that would
typically be the way it would be done. And certainly make it less apparent that it
had been done in any one place if they ran the algorithm consistently across the
country. So, for example, they can dial it -- literally dial it -- to every time there
was a vote for Trump or -- that it be weighted at 0.75, and every vote for Biden be
weighted at 1.25. . . . So I don't think any state was safe from it, despite the best
efforts of some not to use the Dominion Voting Systems which were clearly
fraudulently created and sold.
...
Powell: . . . and then the other thing they did, where they had the real problem, was
Trump won so overwhelmingly in all the states that had to cut off their machines,
that they had to cut off their machines for hours to go in and backfill additional
votes and move things around even more to make sure that Biden won. . . . We
found . . . pristine ballots with only a computer-made dot for Biden, and all of them
were alike. They could just stick those in the machine in batches and run them
through repeatedly and count, you know, hundreds of thousands of votes that way.
There’s a drag-and-drop feature to take Trump votes and put them in a trash can or
assign them to a third-party candidate or move them from a third-party candidate
to Biden. I mean, I think they did absolutely everything. And we also have
information that one of the high people in Dominion Voting Systems went to
Detroit to operate the system himself there that night at the -- the Detroit center.
...
Carr: Let me ask about this guy Eric Coomer. He’s -- I think he -- he works for
Dominion, he’s – he’s Berkeley, California University of California grad. He’s the
one who was allegedly -- there’s a -- he was on a conference call or something, a
Zoom, with -- with Antifa and he said, supposedly: Don't worry about Trump, I’ve
already -- I’ve already made sure he’s going to lose the election. . . is that true, for
-- for starters . . . ?
Powell: Yes.
Carr: It’s true? You have that . . . ?
41
Powell: It’s true. Yeah, we -- we have an affidavit to that effect and we have . . . I
think we have a copy of the call.
...
Powell: And also Dominion has shuttered up both of their offices in Canada where
they shared an office floor with a George Soros entity. . . . And they have moved
their office in Denver. And, of course, I’m sure there was a lot of document
shredding and things, quote, “lost,” end quote, in that process. You know, the FBI
should have moved on all of this immediately; all of the voting machines should
have already been impounded. The software should have been secured and
examined. . . .
...
Powell: . . . in the meantime we will be producing additional evidence to help the
public understand the breadth and depth of this international, frankly criminal
conduct; and it will also reflect substantial foreign interference in our election.
Carr: Sidney Powell . . . Including China, correct?
Powell: Yeah. China, Iran, Serbia, Lichtenstein. Multiple places.309
On a November 21, 2020, broadcast interview:310
Rob Schmitt: . . .you know, if -- if you want to -- if you want to shut the media up,
and they say that you guys have nothing; when will you have some of the stuff
that’s -- that’s this hard core evidence in paper and writing?
Sidney Powell: Well, frankly, the affidavits we’ve already introduced are hard core
evidence. . . They’re first-hand testimony of witnesses who saw how and why the
system was created and how it worked to accomplish the objective for Hugo
Chavez. . . . We’ve got all kinds of different evidence. And then we’ve the statistical
and mathematical evidence that’s absolutely irrefutable. . . . And we’ve got other
testimonial evidence that appears to be coming in now to indicate the Democrats
literally added 35,000 votes to every Democratic candidate to begin with.
...
Powell: . . . frankly, with everything we’ve got, these should be criminal
prosecutions at a -- at a significant level for fraud and conspiracy to defraud . . .
provable beyond a reasonable doubt. There are hundreds of thousands of people in
our criminal system right now in prison who were convicted on far less evidence
of guilt than we have here.
...
309
Id.
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Newsmax broadcast live on television and republished on Newsmax’s YouTube account. Id.
42
Powell: . . . and they can see it. Everybody saw it on election night. They saw votes
being subtracted from President Trump and appearing on the Biden side of the
scale. And that’s exactly what this Dominion System was designed to do. And we
have . . . eyewitness testimony to its entire creation for that very purpose.
...
Schmitt: I mean how big of a -- you know, if -- if this happened, how big of a
conspiracy, how many people would have had to been in on something like this?
Powell: Oh gosh. Probably thousands, including the people running the machines
at each of the polls -- polling centers. We know, for example, that one of the higher
ups of Dominion went to Detroit the night of the election to -- to handle things
himself. And we also have evidence that there were any number of VPN lines open
to the internet for foreign actors to be meddling in it.
...
Powell: . . . our key -- our witness from Venezuela who saw it all created and how
it worked, said that he knew as soon as the machines were turned off in those key
states, it was because we the people in voting Trump -- and voting for Trump in a
landslide election, had essentially broken the algorithm that had been
preprogrammed into the machine. . . .
...
Powell: . . . Georgia’s probably going to be the first state I am going to blow up and
-- and Mr. Kemp and the Secretary of State need to go with it, because they’re in
on the Dominion scam with their lastminute purchase or award of a contract to
Dominion of $100 million. The State Bureau of Investigation for Georgia ought to
be looking into financial benefits received by Mr. Kemp and -- and the Secretary
of State’s family about that time. And another benefit, Dominion was created to
award, is what I would call, election insurance. That’s why Hugo Chavez had it
created in the first place. . .
...
Powell: . . . And it looks like it -- thirty-five thousand votes were added to every
democratic candidate.311
On the November 23, 2020, The Benny Report broadcast:312
Benny Johnson: Finally, we get to Dominion Voting Systems. . . . Their voting
systems are used in Venezuela. And their votes are counted off of American soil; if
that tells you anything. . . .313
311
Id.
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Newsmax broadcast live on television and republished on Newsmax’s YouTube account and Twitter account. Id.
313
Id.
43
On the December 7, 2020, Greg Kelly Reports broadcast:314
Greg Kelly: . . . Gosh, we’re pulling for you. As you know, this is an opinion show
and we’re on your side. How are you holding up, first of all?
...
Kelly: . . .You’re still focused primarily on the Dominion Voting machines and the
issues on a technical basis, correct?
Sidney Powell: . . . yes, we focused also on the systematic problem with the
Dominion machines. We have an expert who has identified that the votes for Biden
was 5% overall greater wherever there were Dominion machines than any of the
other votes. That is essentially the amount of votes that it can flip and brag about
being able to flip. We know from one of our -- one of our witnesses that these
machines were created in Venezuela, and the entire process was started there to
make sure Mr. Chavez won every election. And then, of course, the Wall Street
Journal, I think, today featured Venezuela’s rigged election for Maduro. This is the
same technology. The same equipment. It came out of Venezuela to be used here.
I would imagine our three letter agencies have a role in it. We’re essentially fighting
the entire globalist elite power structure that wants to control the world for their
own financial benefit. . . .
Kelly: You know, two years ago, I would have said that sounds crazy; but after all
that’s happened, I think you’re absolutely right. I think this is the way the world
works. By the way, I do want to ask you about the servers overseas. Dominion
reportedly has all kinds of internet connections and -- for whatever reason they were
counting the votes in places like Spain and Germany. You have seen the reports,
maybe you know firsthand that -- you know, some of these servers may or may not
have been seized. Overseas equipment of Dominion taken possession of by forces
friendly to the United States. Do you know anything about that?
Powell: . . . The Dominion system should never have been allowed in this country.
They are internationally known. Our votes were counted in Frankfurt, Germany,
and altered in Barcelona, Spain, and other places. We simply cannot allow that as
the United States of America. . . .315
On the December 14, 2020, news broadcast:
Dick Morris: . . . Bear in mind, Dominion was invented by people working for Hugo
Chavez, the Venezuelan dictator after he, quote, “lost” an election. And he then
decided to, quote, “win” the election by fixing the voting machines. And he
expressly had them designed -- it's written in the specs -- that this should be so votes
can be altered and not be traced. . . . secondly, they’re about to do the same damn
314
Newsmax broadcast live on television and republished on Newsmax’s YouTube account. Id.
315
Id.
44
thing on January 5th with the same machines and the same result, and the Senate is
at risk this time.
John Bachman: . . . but fundamentally, nothing has really changed in that state for
voters who are going to the polls . . . today.316
On the December 17, 2020, Stinchfield broadcast:317
Grant Stinchfield: I want to bring in a guy now, who I know agrees with me. . . .
Mike Lindell. . . . So look, Fox News, we all know, has problems. We know it’s
responsible for bringing a lot of viewers to Newsmax. . . .
...
Mike Lindell: . . . But I will say this, it’s a blessing, because at 11:15, when they
realized that the -- all of algorithms broke in all those Dominion machines, that
Donald Trump was going to win the presidency anyway, in spite of all the cheating,
so they had to stop everything in the middle of the night, and then backfill votes
and stop . . . .318
On the December 18, 2020, American Agenda broadcast:
Dick Morris: . . . This is actual intervention in the vote count. This is through
Dominion software and Smartmatic. And the accusation here is that the vote count
itself was altered and flipped through that software. You know, it’s been proven in
one county in Michigan . . .319
On the December 18, 2020, Greg Kelly Reports broadcast:320
Greg Kelly: That’s Russell Ramsland, election technology and security expert,
speaking before the election, and all of his concerns unfortunately came true.
Russell Ramsland wrote the very important report on the craziness that happened
in Antrim County, Michigan. Russell, welcome back to Newsmax. How are you
tonight?
Russell Ramsland: Good to be here.
Kelly: Thanks so much. So sir, your report I think was shocking. I thought it was
very, very important, and you lay out in great detail all of the weirdness and the
issues, and you’ve got the technical expertise and it made perfect sense. . . .
316
Id.
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Newsmax broadcast live on television and republished on Newsmax’s YouTube account and Twitter account. Id.
318
Id.
319
Id.
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Newsmax broadcast live on television and republished on Newsmax’s YouTube account. Id.
45
Ramsland: . . . [T]he logs, had they been able to be published, show very clearly
that the RCV algorithm was enacted, it shows very clearly that the error messages
were massive, it shows very clearly that races were flipped. Now, most of the
important races that were flipped were down ballot. The most important race was a
marijuana, proposal. . . .
Kelly: It is amazing. Yeah. 68 percent I think was the error rate, which is obviously
ludicrous. . . .
...
Kelly: I want to show the initial tally from Antrim County. It has Joe Biden up with
a pretty comfortable lead, and then things switched. Let’s go ahead to the next one.
By November 21st Donald Trump had the lead, and I guess we were lucky to catch
this. And you, I think, made the point in the report that it could not have just been
Antrim County. Antrim County, if this were to happen there, Dominion voting
system is used in what, 48 counties, all 48 of Michigan. There’s absolutely no way
this was confined to one county.
Ramsland: Correct. . . .
Kelly: It’s so troubling to me that people are discounting this, but I don’t think you
can steal something this big and get away with it. . . .321
On the December 21, 2020, Greg Kelly Reports broadcast:322
Sebastian Gorka: But now the election’s fine because their guy “won.” So, don’t
investigate anything. Nothing. . . . Well, we’re not going to ignore it here, because
we fight for the truth and we believe that this is still the greatest nation on God’s
earth and nobody gets to steal it from us. . . . One man who decided, he’s not a
politician, he doesn’t work for the president, but he’s still fighting for him and for
the cause of truth, is a man that makes my show, for example, America First on
Salem Radio possible. The great Mike Lindell. . . . He’s fighting for America . . .
Mike Lindell . . . what’s going on?
Mike Lindell: Well, I believe in this president, but – and I’ll tell you what, nobody
realizes . . . what America we had on election night at 11:15. You know, you talked
about all this fraud, doctoring – the biggest fraud is the Dominion machines. And
at 11:15 on election night our great president –
(Talking simultaneously.)
Gorka: Mike, I don’t want to discuss. Mike. Mike. We’re not going to get into the
minutia and the details. . . .323
321
Id.
322
Newsmax broadcast live on television and republished on Newsmax’s YouTube account. Id.
323
Id.
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W. PROCEDURAL POSTURE
Dominion filed the Complaint seeking to recover for defamation per se on August 10,
2021.324 The Court notes that the Complaint is detailed, contains two hundred and seventy-three
paragraphs and is one hundred and seventy-five pages long.325 Newsmax filed the Motion on
October 11, 2021.326 Dominion opposed the Motion on November 15, 2021.327 Newsmax filed a
reply brief in further support of the Motion on December 10, 2021.328
III. PARTIES’ CONTENTIONS
Newsmax argues that the constitutional doctrine of neutral reportage protects Newsmax’s
alleged defamatory speech. Newsmax contends that truthfully reporting newsworthy allegations
made by a President and his legal team on matters of public concern is not actionable.
Furthermore, Newsmax claims that none of the challenged statements identify actionable
defamation because as pled the statements fail to allege facts establishing actual malice.
Dominion argues that no privilege applies. Specifically, Dominion contends that the First
Amendment does not mandate application of the neutral reportage privilege. Dominion claims
that, even if the Court were to consider the theory, Newsmax’s broadcasts went beyond the
neutral reportage privilege and therefore do not satisfy its requirements. Additionally, Dominion
argues that the facts alleged in the Compliant, from which the Court must rely, adequately
satisfies the prima facie element of actual malice in a claim for defamation per se.
324
D.I No. 1.
325
Id.
326
D.I. No. 21.
327
D.I. No. 34.
328
D.I. No. 39.
47
IV. STANDARD OF REVIEW
A. DELAWARE PROCEDURAL LAW PRESUMPTIVELY GOVERNS.
Newsmax contends that while there may ultimately “be a choice of law question for this
Court, Newsmax’s motion relies on federal constitutional principles.”329 “As a general rule,”
however, “the law of the forum governs procedural matters.”330 As a matter of black letter law,
“[t]he local law of the forum governs rules of pleading.”331 As a result, Delaware law
presumptively governs “pre-trial practice” and “motions.”332 Delaware law, therefore,
presumptively governs the Court’s review of the Motion unless an exception applies.
That aside, Newsmax attempts to establish what appears to be an affirmative defense—
neutral reportage—as grounds for dismissal. But both Delaware and New York333 courts
generally do not use affirmative defenses as a basis for dismissing claims at the pleading stage.334
That is especially so when an affirmative defense has not yet been pleaded. Under New York
law, Newsmax could not use the Motion to assert an affirmative defense of truth or privilege to a
defamation action before it had pleaded that defense in an answer.335 Given that reality, and that
any affirmative defenses are preserved for and available for use in, for example, a summary
329
Mot. at 14 n.3.
330
Chaplake Holdings, Ltd. v. Chrysler Corp., 766 A.2d 1, 5 (Del. 2001); accord Tumlinson v. Advanced Micro
Devices, Inc., 106 A.3d 983, 987 (Del. 2013).
331
See Restatement (Second) of Conflict of Laws § 127 (1971).
332
Id. cmt. a.
333
The parties have not stipulated what substantive law will apply in the present case. The action was brought in
Delaware so Delaware law may apply. However, Dominion argues that it suffered harms in New York and many of
Newsmax’s false statements were published in New York. As such, Dominion argues that “New York substantive
law most likely governs this case.” Opp. at 16, n.2 (citing Compl. ¶¶ 11-12, 16, 40-41, 43). Dominion asks this
Court to “reject Newsmax’s neutral reportage doctrine defense as a matter of law[,]” as a federal court sitting in
diversity recently did. Id. (citing Gubarev v. BuzzFeed, Inc., 340 F. Supp. 3d 1304, 1312 (S.D. Fla. 2018)).
334
Reid v. Spazio, 970 A.2d 176, 183 (Del. 2004); Baines v. Daily News L.P., 26 N.Y.S. 3d 658, 664 (N.Y. Sup. Ct.
2015).
335
Baines, 26 N.Y.S. 3d at 664.
48
judgment motion, Newsmax would not be deprived of a substantive right if Delaware’s pleading
rules applied.336
B. DELAWARE’S MOTION TO DISMISS STANDARD.
A party may move to dismiss under this Civil Rule 12(b)(6) for failure to state a claim
upon which relief can be granted.337 In considering a Rule 12(b)(6) motion, the Court (i) accepts
as true all well-pleaded factual allegations in the complaint; (ii) credits vague allegations if they
give the opposing party notice of the claim; (iii) draws all reasonable factual inferences in favor
of the non-moving party; and (iv) denies dismissal if recovery on the claim is reasonably
conceivable.338 The Court, however, need not “accept conclusory allegations unsupported by
specific facts or . . . draw unreasonable inferences in favor of the non-moving party.”339
Delaware’s pleading standard is “minimal.”340 Dismissal is inappropriate unless “under
no reasonable interpretation of the facts alleged could the complaint state a claim for which relief
might be granted.”341
In general, a claim’s reasonable conceivability cannot be determined through “matters
outside the pleadings.”342 But, “for carefully limited purposes,”343 the Court may consider (i)
“matters outside the pleadings when the document is integral to . . . a claim and incorporated into
the complaint” and (ii) matters subject to judicial notice, as long as all extraneous matters are not
336
See id. (“To allow defendants to raise truth or privilege in a pre-answer motion to dismiss a complaint for failure
to state a claim [impermissibly] would necessitate that the complaint . . . anticipate and address an affirmative
defense before it has been pleaded. [D]efendants must raise these affirmative defenses in an answer and move for
summary judgment. . . .” (citations omitted)).
337
Del. Super. Ct. Civ. R. 12(b)(6).
338
Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Holdings LLC, 27 A.3d 531, 535 (Del. 2011).
339
Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011), overruled on other grounds by Ramsey v.
Ga. S. Univ. Advanced Dev. Ctr., 189 A.3d 1255, 1277 (Del. 2018).
340
Cent. Mortg., 27 A.3d at 536 (citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 895 (Del. 2002)).
341
Unbound Partners Ltd. P’ship v. Invoy Holdings Inc., 251 A.3d 1016, 1023 (Del. Super. 2021) (internal
quotation marks omitted); see Cent. Mortg., 27 A.3d at 537 n.13 (“Our governing ‘conceivability’ standard is more
akin to ‘possibility. . . .’”).
342
In re Santa Fe Pac. Corp. S’holder Litig., 669 A.2d 59, 68 (Del. 1995).
343
Id. at 69.
49
considered for their truth.344 “[A] claim may be dismissed if allegations in the complaint or in
the exhibits incorporated into the complaint effectively negate the claim as a matter of law.”345
As discussed below, the Court finds that the Complaint is not conclusory. Dominion
pleads specific facts that put Newsmax on notice as to Dominion’s claims. The Complaint, and
its exhibits, are detailed and focused, and state a reasonably conceivable defamation per se
claim.
V. DISCUSSION
To state a claim for defamation per se under New York law, a plaintiff must establish (i)
a false statement; (ii) publication; (iii) fault; and (iv) one of four per se injuries, including, as
relevant here, (a) an accusation of a serious crime or (b) business harm.346 In addition, the
alleged defamation must be “of or concerning the plaintiff.”347
The Motion seeks dismissal for two reasons. First, Newsmax asserts an affirmative
defense that purportedly applies regardless of whether a statement made is defamatory. In other
words, Newsmax contends, even if the Court accepts Dominion’s allegations as true, they fail to
state a claim because the neutral reportage privilege mandates dismissal. Second, Newsmax
argues that none of the alleged defamatory statements as pled allege facts establishing actual
malice.
344
Windsor I, LLC v. CWCap. Asset Mgmt. LLC, 238 A.3d 863, 873 (Del. 2020) (internal quotation marks omitted).
345
Malpiede v. Townson, 780 A.2d 1075, 1083 (Del. 2001).
346
Kasavana v. Vela, 100 N.Y.S.3d 82, 85–86 (N.Y. App. Div. 2019).
347
Chicherchia v. Cleary, 616 N.Y.S.2d 647, 648 (N.Y. App. Div. 1994) (quoting Gross v. Cantor, 200 N.E. 592,
593 (N.Y. 1936)).
50
A. NEUTRAL REPORTAGE DEFENSE
Through the Motion, Newsmax raises the “defense” of neutral reportage to Dominion’s
allegations. For the reasons discussed below, this defense is either not applicable, or, if
applicable, rests on factual issues inappropriate for resolution at this stage.
Newsmax invokes the neutral reportage privilege—also characterized as the neutral
reportage defense.348 Newsmax’s position is that the topics discussed were of “extreme public
interest” and, in its reporting, “presented allegations without adopting them as true….”349 The
neutral reportage defense bars recovery for defamation when the challenged statements, even if
defamatory, are “newsworthy.”350 When the neutral reportage privilege applies, the press need
not “suppress newsworthy statements merely because it has serious doubts regarding their
truth.”351 Instead, under the defense, the press enjoys “immunity from defamation suits where
the journalist believes, reasonably and in good faith, that his report accurately conveys the
charges made.”352
The neutral reportage privilege was developed by a federal court of appeals; however, the
defense seems to run contrary to United States Supreme Court precedent. 353 The United States
Supreme Court has attempted to strike a balance between First Amendment freedoms and viable
claims for defamation. In doing so, the United States Supreme Court has declined to endorse per
se protected categories like newsworthiness. Instead, the determination of how much protection
should be afforded the media has been left to the states.354
348
Mot. at 14.
349
Id. at 14-15.
350
See Edwards v. Nat’l Audubon Soc’y, Inc., 556 F.2d 113, 120 (2d Cir. 1977) (articulating doctrine).
351
Id.
352
Id.
353
See Cianci v. New Times Publ’g Co., 639 F.2d 54, 68–69 (2d Cir. 1980) (questioning and limiting the reach of
the neutral reportage doctrine).
354
See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974); see also Times, Inc. v. Firestone, 424 U.S. 448, 456
(1976).
51
Newsmax argues the press should be afforded immunity from defamation because its
journalists were accurately conveying allegations.355 In Edwards v. National Audubon Society,
the Second Circuit found that to establish a fair press, the media should have immunity from
defamation when “a journalist is accurately conveying allegations.”356 Newsmax argues, due to
the fact the allegations against Dominion had been uttered, they were afforded “the freedom to
report” the statements bearing no responsibility “for the underlying allegations.”357 Accordingly,
Newsmax relies on lower state and federal courts, arguing that some courts have favored this
reception of such a doctrine.358 Newsmax contends that courts which have adopted the neutral
reportage privilege have extended the privilege further than Edwards.359 Newsmax depends on
the Eighth Circuit case Price v. Viking Penguin Inc., to support the proposition that “[e]vidence
of general disposition does not establish lack of neutrality in a particular circumstance” and that
“as long as the particular accusation is reported disinterestedly and dispassionately, the neutral
reportage privilege would apply even if the report was one-sided.”360
Newsmax asserts that neutral reportage is a constitutional principle that “every state and
federal court in the United States” must follow.”361 Newsmax also contends that “it is irrelevant
355
Mot. at 15 (citing Edwards v. Nat’l Audubon Soc’y, Inc., 556 F.2d 113 (2d Cir. 1977)).
356
Id.
357
Id. (citing Edwards, 556 F.2d at 120).
358
Id. (citing 1 Robert Sack, Sack on Defamation § 7:3.5[D][3], at 7-61); Rendon v. Bloomberg, L.P., 403 F. Supp.
3d 1269, 1276 (S.D. Fla. 2019) (proposing the protection of reporting on alleged election rigging throughout Latin
America); Ward v. News Grp. Int’l, Ltd., 733 F. Supp. 83, 85 (C.D. Cal 1990); Sunshine Sportswear & Elecs. Inc. v.
WSOC Television, 738 F. Supp 1499, 1510 (D.S.C. 1989)).
359
Id. at 16 (citing Price v. Viking Penguin, Inc., 881 F.2d 1426, 1433-34 (8th Cir. 1989) (holding that if the
particular accusation is reported disinterestedly and dispassionately, the neutral reporting privilege would apply even
if the report was one-sided); In re United Press Int’l, 106 B.R. 323, 330 (D.D.C. 1989) (holding neutral reportage
doctrine does not require reportage of “both sides” when the report itself is essentially factual, neutral, and accurate);
Rendon, 403 F. Supp 3d at 1278 (holding that neutral reportage was recognized even in circumstances where the
source was not reliable); Barry v. Time, Inc., 584 F. Supp. 1110, 1126 (N.D. Cal. 1984) (holding that “the neutral
reportage privilege does not depend solely upon the ‘trustworthiness’ of the individual or the organization making
the allegedly defamatory statements)).
360
Id. at 16-17 (citing Price, 881 F.2d at 1433-34). Newsmax attempts to support its position that the information it
was reporting was utterances by others and the Plaintiff’s “disposition” alone does not establish a lack of neutrality.
361
Reply at 5.
52
whether Dominion is correct that New York law will apply in this action. . . since New York law
cannot displace a command of the First Amendment.”362
Dominion addresses Newsmax’s argument by distinguishing the facts of this case from
Edwards.363 Dominion acknowledges the premise in Edwards, but states that no Delaware court
has accepted the theory.364 Further, Dominion rests on the common-law rule framed as, “one
who repeats or otherwise republishes defamatory matter is subject to liability as if he had
originally published it.”365 Dominion argues that extending the neutral reporting privilege so far
would be unsound because the adoption upsets the actual malice standard’s careful balance of
interests.366 Dominion’s argument highlights the fact that the Second Circuit alone “created the
neutral reportage doctrine in dicta in [Edwards], and to this day, no other federal appellate circuit
has joined in.”367
Dominion also claims that federal law provides no universal neutral reportage defense.
Specifically, Dominion notes that the neutral reportage doctrine “must have an anchor
somewhere in some controlling body of decisional law to be applied here” and as the “doctrine
has not been adopted as controlling as a matter of state law in any American state that might
plausibly bear some connection to this litigation” it is not applicable in the present case.368
362
Id. at 5, n.1.
363
Opp. at 4 (citing Edwards, 556 F.2d. at 120 (illustrating the blank immunity as accepted by the Second Circuit
required neutrality to be found within the same article/publication)).
364
Id.
365
Id. at 8 (citing Restatement (2d) Torts § 578 (1977); Rodney Smolla, 1 Law of Defamation§ 4:87 (2d ed. 2021
Update) (a collection of cases and authorities)).
366
Id at 11.
367
Id. at 13-16 (providing analysis of the Second Circuit’s creation of “the press’s right of neutral reportage” and
how it has been rejected in numerous federal and state courts). See id. at 13, n.1 (distinguishing the holding in Price
as cited by Newsmax through explaining the Eighth Circuit’s holding limited its concept of neutral reporting to
public bodies, which Dominion claims to be more like the traditional fair report privilege).
368
Opp. at 11-12.
53
Newsmax’s argument is unavailing at this stage of the process. Newsmax has failed to
demonstrate why this Court at this phase in litigation should apply the neutral reportage defense
when it has not been adopted as controlling law in Delaware and the record is undeveloped as to
an answer and plead affirmative defenses.
1. Newsmax’s Neutral Reportage Defense is Not “Well-Suited for Treatment” On a
Motion to Dismiss.
Apart from the actual malice requirement, Newsmax does not appear to argue
Dominion’s allegations are conclusory. Instead, the Motion attempts to introduce an affirmative
defense Newsmax intends to raise if this case proceeds beyond the pleadings stage. The defense
is not pleaded, however, because Newsmax has not yet answered the Complaint. As a result,
Newsmax’s arguments are based, in large part, on facts outside the Complaint.
At this stage, the Court usually does not consider facts outside the complaint. “The
complaint generally defines the universe of facts that the trial court may consider in ruling on a
Rule 12(b)(6) motion to dismiss.”369 As such, “[m]atters extrinsic to a complaint generally may
not be considered in a ruling on a motion to dismiss.”370 Given these constraints on the Court’s
view of the evidence, the non-movant’s “affirmative defenses . . . are not ordinarily well-suited
for treatment on” a motion to dismiss.371 The Court should not dismiss a complaint due to an
affirmative defense “[u]nless it is clear from the face of the complaint that an affirmative defense
exists and that the plaintiff can prove no set of facts to avoid it, dismissal of the complaint based
upon an affirmative defense.”372
369
In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 168 (Del. 2006).
370
AlixPartners, LLP v. Mori, 2019 WL 6327325, at *15 (Del. Ch. Nov. 26, 2019) (internal quotation marks
omitted).
371
Reid v. Spazio, 970 A.2d 176, 183 (Del. 2004); accord Cedarview Opportunities Master Fund, L.P. v. Spanish
Broad. Sys., Inc., 2018 WL 4057012, at *13 (Del. Ch. Aug. 27, 2018); In re Primedia, Inc. S’holders Litig., 2013
WL 6797114, at *12 (Del. Ch. Dec. 20, 2013).
372
Reid, 970 A.2d at 183–84 (emphasis added).
54
Delaware courts considering defamation claims on a motion to dismiss have been wary of
granting dismissal based on affirmative defenses, including on the privilege Newsmax invokes
here.373 As a matter of Delaware procedural law, the question of
Privilege . . . depend[s] upon the facts and circumstances surrounding the making
of the publication. Since it is a matter of affirmative defense[,] it may not be raised
by a motion to dismiss under Rule 12(b)(6) but should be made a matter of answer
supported by proof at trial.”374
The Court, noting a “low pleading threshold,” has denied dismissal of defamation claims where
“additional facts developed in discovery will reveal [whether] the alleged defamatory statements
were true, mere expressions of opinion, or . . . protected by an applicable privilege.”375
Expressed differently, “even silly or trivial [defamation] claims can easily survive a motion to
dismiss where the plaintiff pleads facts that put the defendant on notice of his claim, however
vague or lacking in detail these allegations may be.”376
The Court, applying Delaware procedural law, will use these legal principles when
addressing the Motion’s arguments. The Court will not deny the Motion solely because it raises
an affirmative defense based on facts outside the pleadings. However, a finding that Dominion’s
allegations state a reasonably conceivable defamation claim will defeat the Motion to the extent
it is based on unpled and fact-based affirmative defenses that could be raised later in the case.
As discussed in this decision, the Court finds that Dominion has plead facts that support a
reasonably conceivable defamation claim.
373
See, e.g., Kelly v. Blum, 2010 WL 629850, at *16–17 (Del. Ch. Feb. 24, 2010).
374
Klein v. Sunbeam Corp., 94 A.2d 385, 392 (Del. 1952); accord Meades v. Wilmington Hous. Auth., 2005 WL
1131112, at *2 n.15 (Del. May 12, 2005).
375
Cornell Glasgow, LLC v. La Grange Props., LLC, 2012 WL 2106945, at *10 (Del. Super. June 6, 2012).
376
Doe v. Cahill, 884 A.2d 451, 459 (Del. 2005).
55
2. Procedural Limitations Aside, Newsmax’s “Neutral Reportage” Defense Does Not
Support Dismissal.
Dominion argues that when the neutral reportage privilege has been applied, courts have
done so “‘fitfully’” and have “insisted all the Edwards criteria be met.”377 The requisites that
must be found by the court for Edwards to apply are:
(1) the accusations being reported were made by ‘a responsible, prominent
organization’; (2) ‘against a public figure’; (3) with ‘accurate and disinterested
reporting’ of the charges; ‘regardless of the reporter’s private views regarding their
validity’; (5) ‘[w]hat is newsworthy about [the] accusations is that they were made’;
(6) ‘the journalist believes, reasonably and in good faith, that his report accurately
conveys the charges made’; (7) the publisher neither ‘espouses [n]or concurs in the
charges’; (8) the publisher does not ‘deliberately distort[] these statements to launch
a personal attack on his own’; (9) the publisher publishes the accused party’s
response to the accusation ‘in the same article’; and (10) the statement was an
‘exemplar of fair and dispassionate reporting.’378
Dominion contends whether all the factors have been met is a “factual exercise for a jury.’379
Based on the facts alleged in the Complaint, Dominion contends that “[a] jury could find that
Newsmax broke almost all of the Edwards/Cianci rules in the challenged statements.”380 Thus,
Newsmax’s alleged defamatory statements went beyond the neutral reportage privilege and do
not qualify for the protection as a matter of law.381
To support the notion that the neutral reportage doctrine should apply, Newsmax makes
three arguments.382 First, that the alleged defamatory remarks were made by public figures and
377
Opp. at 18-19.
378
Id. at 19 (citing Edwards v. Nat’l Audubon Soc’y, Inc., 556 F.2d 113, 120-22 (2d Cir. 1977)); see also Cianci v.
New York Times Publ’g Co., 639 F.2d 54, 68 (2d Cir. 1980) (citing Edwards but emphasizing the “‘important
suggestions’” to demonstrate the “‘privilege was limited in scope and required careful examination of the facts in
each case’”)).
379
Id. at 20 (citing Cianci, 639 F.2d at 69 (where “after some discovery denied a motion to dismiss or for summary
judgment invoking the neutral reportage privilege because ‘a jury could well find that the [defendant] did not simply
report the charges but espoused or concurred in them’”)).
380
Id.
381
Id.
382
Mot. at 17, 19, 20.
56
officials.383 The President and his lawyers are public figures, and thus qualify as “‘responsible
and prominent’ figures under Edwards.”384 Once this first factor is qualified, Newsmax argues
the doctrine applies as the speaker’s statements are newsworthy by virtue based upon their
responsibility and prominence.385 Even if that were correct, allegations in the Complaint extend
beyond just statements uttered by any prominent and responsible figures (i.e., former President
Trump).386 Newsmax’s possession of evidence demonstrating the election fraud claims were
false, supports the reasonable inference that Newsmax made or published statements knowing
they were false or with a reckless disregard for the truth.387 Newsmax may not have a duty to
parse through every newsworthy and controversial statement uttered for validity before sharing
it, but it does have a duty to report on those allegations truthfully, accurately, and without
endorsement.
Second, Newsmax contends that the reporting at issue related to the 2020 Presidential
Election and that concerned newsworthy controversies of critical public concern.388 Newsmax
argues that the First Amendment provides protection to discuss governmental affairs and “all
such matters relating to political process.”389 Third, Newsmax contends it accurately reported
unprecedented allegations covering a newsworthy public controversy.390 Newsmax concludes its
383
Id. at 17.
384
Id.
385
Id. (signaling to Barry v. Time, Inc., 584 F. Supp. 1110, 1126 (N.D. Cal. 1984) which was relied on by Newsmax
for a separate proposition supra note 343 and accompanying text). Newsmax attempts to argue that “the fact that
such allegations at issue here were made by the President and his representatives were unprecedented in and of
themselves, and that alone justifies Newsmax for reporting on them.” Id. at 19.
386
See e.g., Compl. ¶ 248.
387
See e.g., Compl. ¶¶ 101, 109, 127, 137, 151, 153, 169, 177.
388
Mot. at 19. Newsmax conceptualizes the subject matter of the speech being a critical public concern tips the scale
of the Constitutional balance as upheld in Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974). Newsmax also
cites Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775 (1986), noting that “[w]hen the speech is of public
concern and the plaintiff is a public official or public figure, the Constitution clearly requires the plaintiff to
surmount to a much higher barrier before recovering damages from a media defendant that raised by the common
law.” (emphasis added).
389
Id. at 20 (quoting Mills v. Alabama, 384 U.S. 214, 218-19 (1966)).
390
Id.
57
framing of the neutral reportage privilege by suggesting, because the reports were accurate
recitations of what was actually said or done, that the immunity should attach if the matters were
already reported on by a reliable source.391
Newsmax contends that the statements need to be viewed in the full context of the
broadcasts and not isolated phrases because a defamation case requires the question answered to
be “whether the statements at issue are statements of fact…., informed by factual context of the
statements in question.”392 This would thus require the Court to rely on the reporting or
comments as they were made in context–succinctly, in the totality of the circumstances.393
Newsmax claims this distinction is crucial because it is necessary for the Court to decern
whether Newsmax adopted and endorsed the claims, or merely reported them as received.394
Moreover, some courts have provided additional deference when considering the context of
statements made during a broadcast talk show.395
Even if the neutral reportage defense were available, the Court would not dismiss the
Complaint on the current record and at this stage of the litigation. To benefit from the neutral
reportage defense, the facts must show the defendant accurately and dispassionately reported the
newsworthy event.396 Per its name, Newsmax’s reporting must have been neutral, not “a
391
Id. at 21 (citing Price, 881 F.2d at 1434 (“evidence of the author’s general disposition toward the topic does not
establish whether he espoused each particular allegation.”); In re United Press Int’l, 106 B.R. at 330 (“a report need
not set forth both sides of an issue”); Merrill v. McClatchy Newspapers, Inc., 1998 WL 1814475, at *4 (W.D.N.C.
Oct. 2, 1998), aff’d, 187 F.3d 630 (4th Cir. 1999) (“[i]mmunity attaches to accurate reports on matters already
reported by reliable sources”)).
392
Id. at 21-22 (citing McDougal v. Fox News Network, LLC, 489 F. Supp. 3d 174, 181 (S.D.N.Y. 2020) (internal
citation omitted)).
393
Id. at 22. See, e.g., Herring Networks, Inc. v. Maddow, 445 F. Supp. 3d 1042, 1049 (S.D. Cal. 2020); Michaelis v.
CBS, Inc., 119 F.3d 697, 700 (8th Cir. 1997); Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 138 F. Supp 3d
1191, 1198 (D. Colo. 2015) aff’d, 861 F.3d 1081 (10th Cir. 2017).
394
Id. at 23 (citing Farah v. Esquire Magazine, 736 F.3d 528, 535 (D.C. Cir. 2013)).
395
Id. See, e.g., McDougal, 489 F. Supp. 3d at 182-84 which found that some statements made during “Tucker
Carlson Tonight” were construed as “rhetoric hyperbole” and not defamatory. See also Huggins v. NBC, 1996 WL
763337, at *3 (N.Y. Sup. Feb. 7, 1996) (“standing for the proposition that ‘unscripted, unrehearsed’ comments
delivered in a ‘conversational tone’ signal opinion”).
396
See Edwards, 556 F.2d at 120.
58
personal attack” on Dominion, to succeed on this defense.397 As set forth above, Dominion’s
well-pleaded allegations, however, support the reasonable inference that Newsmax’s reporting
was not accurate or dispassionate.
It is reasonably conceivable that Newsmax’s reporting was inaccurate. For example,
once Newsmax began connecting Dominion to the election fraud claims, Dominion attempted to
get out in front of the impact by sending Newsmax its “SETTING THE RECORD STRAIGHT”
memoranda. Those memoranda, which contained analysis from election and related experts,
tended to disprove the election fraud claims. Rather than reporting on Dominion’s memoranda,
Newsmax and its news personnel continued to connect Dominion to the election fraud claims by
hosting guests who took that position.398 When Newsmax guests spread or reiterated
disinformation about Dominion, Newsmax did not use the information Dominion provided to
correct its guests or to reorient its viewers. Instead, Newsmax and its personnel pressed their
view that considerable evidence supported Dominion’s involvement in an illegal election fraud
conspiracy.
It is also reasonably conceivable that Newsmax was not dispassionate. Given that
Newsmax apparently refused to report contrary evidence, including evidence from the
Department of Justice, the allegations support the reasonable inference that Newsmax intended
to keep Dominion’s side of the story out of the mainstream. Moreover, there are numerous
instances in which Newsmax personnel did not merely ask questions and parrot interviewee
responses, but rather, endorsed or suggested a motivated result. By skewing questioning and
approving responses in a way that fit or promoted a narrative in which Dominion committed
election fraud, Newsmax may have failed to report the issue truthfully.
397
See id.
398
See e.g., Compl. ¶ 248.
59
The neutral reportage defense does not apply when the press “espouses or concurs in the
charges made by others[] or who deliberately distorts these statements to launch a personal
attack” on the plaintiff.399 And the Complaint supports the reasonable inference that Newsmax
did both. Accordingly, Dominion’s allegations support the reasonable inference that Newsmax
was not engaged in neutral reportage. The neutral reportage defense does not support dismissal.
Newsmax argues that Dominion “omit[s] key elements of the exchanges in order to
distort the context” and create a misimpression.400 When viewed in context, Newsmax contends
“the neutrality and lack of endorsement of statements regarding Dominion are clear.”401
Newsmax also argues that the Motion “studiously ignore[s] the clear and verbal on screen
identifications of guests and speakers in clips…which establish that they are independent sources
of allegations and information, not the voice of Newsmax.”402
Newsmax references appearances from Ms. Powell, Mr. Morris, Mr. DiGenova, Mr.
Byrne, Mr. Giuliani, and Mr. Ramsland, and argues that it “identified the source of the
information for viewers who were able to draw their own conclusions about the claims made by
those sources.”403 Newsmax concludes its application of the facts regarding the neutral reportage
doctrine by pulling paragraphs from the Complaint and adding “context” demonstrating that
“Newsmax provide[d] balance as to the developing story of allegations being made.”404 This
argument is suitable for a later stage in the case, as it offers facts probative of a privilege or
399
Edwards, 556 F.2d at 120.
400
Mot. at 25
401
Id. at 29.
402
Id.
403
See id. at 29-31 (identifying each speaker, explaining their interpretation of the nature of the appearance, and
argue “[t]he notion that anytime a host identifies a guest’s Twitter handle or website means that they are endorsing
everything there or anything the guest has said, would make nearly every host on every program such an endorser”).
404
Id. at 37.
60
defense. But at the pleadings stage, it raises factual issues the Court must resolve in Dominion’s
favor.
B. DOMINION HAS ADEQUATELY ALLEGED ACTUAL MALICE.
Newsmax argues the Complaint fails to adequately plead fault (e.g., actual malice).405
The Court does not agree. At this stage, the Court finds that the Complaint alleges facts that
Newsmax made the challenged statements with knowledge of their falsity or with reckless
disregard of their truth.
“‘Actual malice’ means that defendants published the false information about plaintiff
‘with knowledge that it was false or with reckless disregard of whether it was false or not.’”406
To satisfy the reckless disregard standard, a plaintiff must show the defendant “entertained
serious doubts as to the truth of [the] publication” or had “a high degree of awareness of . . . [its]
probable falsity.”407 The failure to investigate a statement’s truth, standing alone, is not evidence
of actual malice, even if a prudent person “would have investigated before publishing” the
statement.408 But a speaker cannot “purposefully avoid[]” the truth and then claim ignorance.409
If the plaintiff offers “some direct evidence” that the statement “was probably false,” a fact-
finder may infer that the defendant “inten[ded] to avoid the truth.”410 The plaintiff must prove
actual malice with clear and convincing evidence.411
405
Actual malice is the most demanding fault standard. It generally applies when a public figure plaintiff sues in
defamation for statements the defendant made on matters of public concern. Although the appropriate fault standard
hinges on further development of the record, the parties accept that actual malice is the relevant standard for
resolving the Motion. Dominion expressly reserves its right to argue that the proper pleading standard is negligence.
See Chapadeua v. Utica Observer-Dispatch, Inc., 341 N.E.2d 569, 571 (N.Y. 1975).
406
Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 773 (1986) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254,
279-80 (1964)).
407
St. Amant v. Thompson, 390 U.S. 727, 731 (1968) (citing Garrison v. State of La., 379 U.S. 64, 85 (1964)).
408
Id.
409
Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 693 (1989).
410
Sweeney v. Prisoners’ Legal Servs. of N.Y., Inc., 647 N.E.2d 101, 104 (N.Y. 1995); see also Eastwood v. Nat’l
Enquirer, Inc., 123 F.3d 1249, 1253 (9th Cir. 1997).
411
Hepps, 475 U.S. at 773.
61
Newsmax suggests Dominion, a public plaintiff, must satisfy a heightened pleading
standard and that they have failed to do so.412 Newsmax states that Dominion meets one or both
related standards in the determination of Dominion’s public status because of the role Dominion
had in the election—Dominion’s contractual relationship with the government, and Dominion’s
executive giving testimony as a State Defendant.413
Newsmax argues that the Complaint fails to plead actual malice with regards to Antrim
County reports, then goes on to state Dominion’s “broader allegations are insufficient for the
same reasons.”414 Newsmax’s contention is premised on the notion that no facts pleaded by
Dominion support a reasonable inference that Newsmax published the Antrim County
broadcasts, or any of the other broadcasts alleged to be defamatory, with knowledge.415
Newsmax asserts that Dominion’s pleadings are insufficient to create a reasonable inference of
actual malice despite the pleadings including specific facts of public reports clarifying the
allegations of the election fraud, statements from government officials attesting to vote audits,
denials of fraud sent directly to Newsmax from Dominion, and confrontation of several
personalities who had the propensity to lie.416
Contrary to Newsmax’s claim that there could be no reasonable inference of actual
malice, the Motion states: “[w]hile these facts could conceivably raise serious doubts as to the
allegations against Dominion (though, as discussed below, they do not), it is difficult to see how
412
Mot. at 41.
413
Id. at 42; see Rosenblatt v. Baer, 383 U.S. 75, 85 (1966) (actual malice standard applies “[w]here a position in
government such apparent importance that the public has an independent interest in the qualifications and
performance of the person who holds it”); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974) (actual
malice applies when an party is a limited public figure that “voluntarily injects himself or is drawn into a particular
public controversy and thereby becomes a public figure for a limited range of issues”).
414
Mot. at 46, 55.
415
Id. at 48. Newsmax argues Dominion’s allegations that Newsmax knew or should have known of the Antrim
error are not supported by fact but through conclusory allegations. Id.
416
Id. at 49-50.
62
they can be said to render those allegations inherently improbable.”417 The Court disagrees and
finds that there is at least a reasonable inference of actual malice based on the alleged facts when
viewed in Dominion’s favor.
Dominion asserts it has adequately alleged actual malice.418 Dominion argues when the
Court views the Complaint in its entirety it “more than adequately pleads actual malice.”419
Dominion provides examples of evidence that inferences of actual malice can be discerned and
then applies them to facts alleged in the Complaint. For instance Dominion asserts that: (i)
Newsmax knowingly disregarding publicly available evidence; (ii) Newsmax broadcasted and
republished false and improbable claims from unreliable sources; and (iii) Newsmax promoted a
false storyline to increase profits.420 Essentially, Dominion contends that the abundance of facts
that were well-plead are enough to adequately allege Newsmax acted at least recklessly when
reporting on Dominion.421 At the pleading stage, Dominion must allege facts from which this
Court can draw a reasonable inference of actual malice when viewed in Dominion’s favor.422 In
its totality, the Complaint pleads facts from which this Court could draw a reasonable inference
of actual malice.
417
Id. at 60, n.16.
418
See Opp. at 42, n.4. (Dominion is not contesting whether it does or does not satisfy the public figure status; rather
reserves its right to argue that the proper pleading standard is negligence (citing Chapadeua, 341 N.E.2d at 571
(N.Y. 1975))).
419
Id.
420
Id. at 43-44; see Palin v. New York Times, 940 F.3d 894, 813-16 (2d Cir. 2019) (actual malice can be shown
where a defendant publishes defamatory statements that contradicts known to him); St. Amant v. Thompson, 390
U.S. 727, 732 (1968) (actual malice can be shown where the story published is based “wholly on an unverified
anonymous” source or “where there are obvious reasons to doubt the informant”); see Harris v. City of Seattle, 152
F. App’x 565, 568 (9th Cir. 2005) (where evidence “that a defendant conceived a story line in advance of an
investigation and then consciously set out to make the evidence conform to the preconceived story”); see Harte-
Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 668 (1989) (where evidence of a financial motive to defame
can support a finding of actual malice); see Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1071 (5th Cir. 1987)
(where a defendant’s refusal to retract defamatory statements was found to support actual malice at the time of
publication).
421
Id. at 42.
422
Id. at 64.
63
Contrary to Newsmax’s contentions, Dominion’s allegations are not conclusory.423 The
Complaint supports the reasonable inference that Newsmax either knew its statements about
Dominion’s role in the election fraud were false or had a high degree of awareness that they were
false. For example, Newsmax possessed countervailing evidence of election fraud from the
Department of Justice, election experts, and Dominion at the time it had been making its
statements. The fact that, despite this evidence, Newsmax continued to publish its allegations
against Dominion, suggests Newsmax knew the allegations were probably false. Although
Newsmax ordinarily would not be required to investigate further, there were enough signs
indicating the statements were not true to infer Newsmax’s intent to avoid the truth.
Furthermore, a Newsmax personality stated to have an “independent investigation unit” that had
been exploring evidence surrounding Dominion’s role in an allegedly rigged election. Whether
Dominion ultimately will prove Newsmax’s actual malice by clear and convincing evidence is
irrelevant on a motion to dismiss. At this stage, it is reasonably conceivable that Dominion has a
claim for defamation per se. Accordingly, the Motion is denied.
VI. CONCLUSION
For the foregoing reasons, the Motion is DENIED.
IT IS SO ORDERED
June 16, 2022
Wilmington, Delaware
/s/ Eric M. Davis
Eric M. Davis, Judge
cc: File&ServeXpress
423
During oral argument Newsmax stated that the following paragraphs demonstrate at least an inference of
knowledge: 40, 53-54, 71-73, 83-87, 89, 94-95, 97-100, 108-109, 118-120, 124-125, 127, 137, 140-141, 143, 145,
151, 153-154, 157-161, 169, 171-173, 177-179, 261-268, 270-272. The Court finds that these paragraphs
demonstrate more than mere conclusory allegations by Dominion on the issue of knowledge.
64
US Dominion, Inc. v. Newsmax Media, Inc.
Combined Opinion