This Thanksgiving Season I’m Thankful for … Lawsuits?

How defamation litigation helped save democracy

Happy late Thanksgiving, readers! I’m grateful that you’ve chosen to read this newsletter, and I’m grateful for your many notes, comments, and arguments. I read every message you send me (even if I don’t have time to respond to them all), and I’ve appreciated your agreements and your disagreements. A writer should never, ever take his audience for granted, and I don’t take you for granted. Not for a moment. Thank you.

Now, let me move on to a brief post-Thanksgiving thought. I’m going to type a sentence that might never have been typed in the whole history of the English language. It might label me as more of a nerd than typing something like, “This Thanksgiving, I’m thankful for Wakanda Forever.”

Here it is: This Thanksgiving, I’m thankful for defamation litigation.

There’s a good reason for such a strange-seeming statement. As the dust clears from the 2022 election, which featured hundreds of candidates who illegitimately and dangerously denied or cast doubt on the outcome of the 2020 election, we do not face a wave of additional election denial across the United States.

Kari Lake in Arizona is a notable and unsurprising exception. She maintains she won the Arizona gubernatorial election (she lost), and she says she believes she can reverse the results. So far there has been no violence, and we should pray that the peace holds.

Outside Arizona, however, defeated election deniers have either conceded outright or slunk away quietly. In spite of results that shocked Republicans (and many Democrats) from coast to coast, the election-denial dog simply has not barked.

The simplest and easiest explanation for the silence is that Donald Trump is not president; he doesn’t command the bully pulpit, and he’s still either suspended from major social-media platforms or refusing (so far) to return. There’s no question that’s a huge factor, perhaps a decisive factor.

But let’s not forget the second key ingredient that made the 2020 election conspiracies so toxic, and ultimately violent: Right-wing media repeated and amplified even the wildest and most specious election-fraud and election-tampering claims, in broadcast after broadcast, for week after week.

That hasn’t happened in 2022, and I suspect I know a key reason: defamation litigation. Fox News, Newsmax, and One America News Network potentially face billions of dollars in liability for their “coverage” of 2020 conspiracy theories. Forbes has a helpful list of 14 separate lawsuits filed by Smartmatic and Dominion alone. And thanks to recent massive legal judgments rendered against both Alex Jones and Oberlin College, institutions now know that defamatory claims have consequences—especially when defamation leads to threats or harassment against innocent parties.

But Smartmatic and Dominion aren’t alone. My friends at Protect Democracy have filed lawsuits on behalf of a postal worker and election workers who claim that right-wing websites falsely accused them of election misconduct.

Defamation litigation can’t cleanse the public square of falsehoods. Nothing seems to deter MyPillow’s Mike Lindell from spreading the wildest of claims, for example. In addition, as a longtime First Amendment attorney, I know that defamation litigation can be dangerous. Wealthy individuals and organizations can file frivolous lawsuits against critics, hoping to grind them down with costly legal defenses.

But defamation litigation still has its place, and the response to the 2020 election lies shows us why. In fact, defamation litigation is but one small part of a larger bipartisan legal effort that helped save the United States from a grave constitutional crisis. I say “bipartisan” because Trump-appointed, Federalist Society judges dealt many of the final blows to Trump’s effort to steal the election.

One day soon I’ll write a much more comprehensive piece describing how legal norms held when moral norms failed. Our democracy depends a great deal on the integrity of its leaders, but it does not depend entirely on their good character. The operation of law can ameliorate the consequences of lost moral courage.

To take another example: Most Republican senators lacked the fortitude to vote to convict Donald Trump after the January 6 Capitol attack. And now Trump is running, again, for the presidency. At the same time, Attorney General Merrick Garland has appointed Jack Smith, the respected former head of the Department of Justice’s public-integrity unit, to serve as a special counsel investigating whether the evidence supports charging Trump for crimes related to January 6 and his alleged mishandling of classified documents.

Will the law prevail when politicians fail? Time will tell.

In the meantime, however, I’m breathing a sigh of relief that our voting system held, peace prevailed (at least so far), most of even the wildest election deniers fell silent when the votes were counted, and the voters were heard. So please, this Thanksgiving, join me in giving thanks for the law, lawyers, and the lawsuits that help preserve the republic.