by Michael C. Dorf
My latest Verdict column critiques Sidney Powell's motion to dismiss the defamation lawsuit filed against her by Dominion Voting Systems. Some of the news coverage of Powell's motion has suggested that she is making the argument that her statements about the election being stolen from Donald Trump were so transparently ludicrous that no reasonable person could have believed them. That's not far off, although it's not exactly accurate either. As I explain, the motion to dismiss makes contact with reality in a few places, but it should ultimately fail. If political speech can ever be defamatory--and the SCOTUS cases indicate that it clearly can be in at least some cicrucmstances--Powell's post-election attacks on Dominion should trigger liability.
During the course of my column, I note the irony that both Trump himself--through his suggestion that we "open up" defamation law--and right-wing ideologues--like Judge Silberman, whose call to overrule NY Times v. Sullivan I recently discussed--are in favor of greater liability for defamation, while Powell's motion to dismiss would nearly shut down such liability. Some readers will likely have a more cynical reaction; the juxtaposition is not simply ironic but hypocritical, they will think. I have no current interest in pushing back against that view.
Instead, I want to use the balance of today's essay to discuss another current flashpoint involving the First Amendment--about how to treat religiously motivated claimants seeking exceptions from general rules. For this topic, I'll take as my point of departure last week's Sixth Circuit ruling in Meriwether v. Hartop, which permits a First Amendment lawsuit by a professor at a state university who refused to call a trans student by her preferred pronouns.