(1) TNB last night was very good. I was in the chat dropping bombs and you can’t recreate that magic. But you can watch the rewind here or listen to the podcast version here. You’ll probably want to watch, because Tim looked like a damn movie star last night.
(2) I’m going to be AWOL for the next week. Big Life Change stuff so no newsletters or podcasts from me. And I won’t be responding to emails. Catch you on the flip side from Dirty Jersey.
1. Collateral Damage
Lost in the January 6 Committee news yesterday was a ruling in a Delaware court that the Dominion Voting Systems defamation case against Newsmax could proceed.
Dominion is seeking $1.6 billion in damages and Newsmax’s first line of defense was something like How could we have possibly known that the stuff we said about Dominion was false!
The judge wasn’t buying it. You can read the whole decision here if you want. It is hot fire.
But it’s also 64 pages long and I don’t expect you to read the whole thing. So I did it for you.
Defamation cases are very hard to prove. But this Dominion suit looks strong.
The first leg of the stool is Dominion proving that Newsmax was peddling false claims. That’s the easy part:
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. On November 8, Fox invited Ms. Powell on the Sunday Morning Futures show and began connecting Dominion with the narrative of election fraud. 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. 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.” . . .
Newsmax promoted a false origin story that Dominion was created in Venezuela by Hugo Chavez for the purpose of rigging elections. This connection was based on the verifiably false claim that Dominion is owned by Smartmatic. Smartmatic is actually a Dominion’s competitor and the two entities are not otherwise affiliated.
On November 10, 2020, Ms. Robinson retweeted the false claim that Smartmatic was synonymous with fraud for most Venezuelans and that Smartmatic is a subsidiary of Dominion. Ms. Robinson’s tweet claimed that “All crooked roads lead to Dominion Voting Systems.” 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.”
The next step is proving that Newsmax knew (or should have known) that the claims it was making were false:
[On November 12, 2000] 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.” Newsmax knew about the announcement and “Newsmax’s White House Correspondent, Emerald Robinson, had been responding to and reposting then-CISA Director Christopher Krebs’ ‘Rumor Control Update’ posts debunking election fraud claims on Twitter since November 6.” . . .
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.
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. Ms. Hesse is involved with soliciting guests to speak on Newsmax TV, including Mr. Kelly’s show. 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. Dominion did not receive a reply from Newsmax to this email. . . .
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.
There is a lot more on this score.
The next leg of the stool is Dominion attempting to prove that the reason Newsmax continued to lie about them is malicious intent: Because they were using these lies to grow their business:
Newsmax created a brand and campaign selling its audience on the idea that Dominion rigged the election and stole it from former President Trump. Newsmax began this campaign with a segment on the primetime show Greg Kelly Reports titled, “Democracy or Dominion.” 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. Mr. Kelly commented in the segment that “the truth is finally told” . . .
On November 18, 2020, former President Trump called Mr. Ruddy. 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.” Mr. Ruddy tweeted several times that day. First, Mr. Ruddy tweeted: “Fox News ‘stabbed us in the back.’ Is Newsmax out new alternative?” 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.”
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.”
I don’t know how to read this except as Newsmax using its lies about Dominion as product differentiation and literally advertising the lies as a selling point in an attempt to court viewers away from a competitor.
And Newsmax kept willfully ignoring Dominion’s attempts to stop the (alleged!) defamation:
On December 18, 2020, Dominion sent a formal retraction demand letter to Newsmax. The letter demanded that Newsmax stop publishing false claims about Dominion. 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. . . .
Newsmax refused to retract. 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.
The next day, Newsmax got spooked. They aired a “clarification.” But it was a heavily-lawyered statement worded to avoid any actual retraction:
On December 19, 2020, Newsmax issued a “clarification” regarding its statements about Dominion rigging the election. The clarification was titled “Facts about Dominion, Smartmatic You Should Know.” 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.” The clarification was not a wholesale retraction and was couched in terms that avoided correcting previous statements made by Newsmax. 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.”
After waiting a few months and hoping it would all blow over, Newsmax continued to try to have it both ways—giving just enough to Dominion that they thought they could limit their exposure, while not giving so much that their audience saw them as cucks:
On April 30, 2021, Newsmax issued an apology statement to Dr. Eric Coomer, Dominion’s then-Director of Product Strategy and Security. 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.” 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. Newsmax continued to promote individuals who spread lies about Dominion including Mr. Lindell through July 2021.
How transparent were Newsmax’s defenses? This transparent:
Mr. Ruddy wrote a letter to Dominion Founder and CEO John Poulos on May 24, 2021. Mr. Ruddy claimed that Newsmax never received Dominion’s December 18 retraction demand letter. However, Newsmax’s lawyers admitted that “the email addresses used for Mr. Ruddy and Mr. Chandler” to send the letter “appear to be correct.” 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.” 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.”
That’s uh . . . that’s the best they can do? Didn’t get that one email! Must have gone to spam! We never said anything about Dominion ourselves!
2. Material Harm
Which brings us to the final leg of the stool: