Every year, my colleagues and I get to go through “libel training.” Every year, I also make the insufferable joke to my co-workers that we’re going to be trained to commit libel. Unfortunately, it’s not quite that exciting. A lawyer who’s worked with The New Republic for many years presents a PowerPoint on the basics of American defamation law. He describes what counts as defamation and what doesn’t, what can insulate us from liability and what can increase it, and some of the gray areas where caution might be warranted.
The annual lesson is a useful reminder that we have a responsibility, both legal and moral, to use our platform wisely. (I believe it’s also required by TNR’s insurance.) From a global perspective, we’re actually pretty lucky on this front. The First Amendment makes it extraordinarily difficult to bring a successful defamation lawsuit against someone in American courts. Australia and Britain, by comparison, have much lower legal thresholds for libel claims to succeed. This is one reason, among others, why the #MeToo movement spread further in American society than it did in many other countries, where survivors’ stories could be stifled with legal threats.
But the U.S. threshold for defamation claims is not insurmountable. Mike Lindell, the far-right CEO of MyPillow, may soon find this out the hard way. Dominion Voting Systems filed a lawsuit against him this week for his central role in spreading what it refers to in its suit as the “Big Lie” that Donald Trump actually won the 2020 election, which among other things implicates the company as a participant in this unhinged conspiracy to thwart American democracy. “Despite having been specifically directed to the evidence and sources disproving the Big Lie, Lindell knowingly lied about Dominion to sell more pillows to people who continued tuning in to hear what they wanted to hear about the election,” Dominion said in the complaint.
Lindell is one of multiple right-wing figures who have recently found themselves on the other end of a defamation lawsuit in recent weeks over this “Big Lie.” But what makes Lindell’s case interesting is how it doesn’t simply rest on that wrong. Dominion is suing the MyPillow CEO not just for lying about the election but for trying to monetize those lies, as well. Along the way, the beleaguered voting-machine company provides a useful window into how the right-wing media grift really operates.
Dominion’s lawsuits are clearly written to be read by a lay audience. Its 107-page complaint against Rudy Giuliani, which was filed a few weeks after the attack on the Capitol, doubles as a partial history of the postelection chaos. It weaves Giuliani’s incendiary claims about election fraud with how those claims resonated among Trump supporters—and how Giuliani sought to hawk various products along the way, including “gold coins, supplements, cigars, and protection from ‘cyberthieves.’” Taken together, the insurrection on January 6 feels almost inevitable, in hindsight, as Giuliani and others repeatedly warned their listeners that the nation was in peril and that American democracy had been stolen.
Giuliani did not disavow his past claims after January 6, but he at least had the good sense to be less conspicuous about them. Mike Lindell took a different approach. Dominion’s 121-page complaint against him documents in exacting detail how Lindell’s actions unfolded. The MyPillow CEO claimed for months that Trump’s victory was stolen from him—and from his supporters—by Dominion, the Democrats, a few foreign governments, and a dizzying array of other co-conspirators. To say there is no evidence to support his claims is to suggest that he meant for them to be falsifiable. They are pure and unadulterated nonsense. Time and time again, he claimed that the evidence would bear out his extraordinary claims. That evidence invariably turned out to be false or nonsensical. Every election official and court of law in the country that scrutinized the “Big Lie” found it to be wrong.
Dominion devotes ample space in its complaint to documenting how Lindell’s claims were not just wrong, but recklessly and intentionally wrong, in its view. The company had no choice if it wanted to meet the legal threshold for defamation. What’s even more interesting is how Dominion wove in the economic forces at play. Lindell, in its telling, is not just some random guy with an unusually large platform. He’s a key advertising sponsor on the networks that aired his sensational claims, creating a conflict of interest for the media outlets that hosted him—and a profit opportunity for himself.
To that end, Dominion also charged him with engaging in deceptive trade practices. Lindell, Dominion argued in its complaint, “willfully made them in the course of his business as the CEO of MyPillow because he and his company could derive—and did in fact derive—financial benefits from making those false statements, namely, sales of MyPillow products that occurred because Lindell was exploiting and disseminating defamatory falsehoods about Dominion.” No such claim was raised against Giuliani in the company’s complaint against him.
Lindell, who is better known as “the MyPillow guy,” became an early ally of Donald Trump and used that connection to leverage his brand even further. He advertised prolifically on Fox and other right-wing networks, even as other sponsors abandoned them. Lindell’s ubiquity made it even more remarkable when he openly clashed with Newsmax hosts over his election-fraud lies. Dominion’s complaint recounts the showdown:
Five days later, Newsmax gave Lindell an interview to discuss the fact that Twitter had banned Lindell’s account for spreading election disinformation and then had banned MyPillow’s corporate account because Lindell had used it to circumvent the ban on his personal account. Newsmax knew that the discussion of those bans was an invitation to have Lindell repeat the Big Lie that had gotten Lindell banned from Twitter in the first place. For weeks prior to that, Newsmax had broadcast defamatory falsehoods about Dominion. And Newsmax was fully aware at this point that the Big Lie was in fact a lie, as evidenced by Newsmax’s own prior “clarifying” segment on the topic.
Newsmax had broadcast that segment because it was worried about being sued for defamation—not because it cared about the truth. If Newsmax cared about the truth, it would not have broadcast the Big Lie again after issuing the “clarifying” segment. But, unwilling to lose MyPillow ad dollars and seeking to protect its credibility with people it had already misled into believing the election was stolen, Newsmax bowed to the pressure and gave its financial backer a global platform to repeat the Big Lie that Newsmax knew was false—and to market MyPillow. Foreseeably, Lindell—introduced with the chyron “CEO, MyPillow”—said “we have all this election fraud with these Dominion machines. We have 100% proof.”
Newsmax anchor Bob Sellers interjected by reading a legal disclaimer that was clearly drafted beforehand by Newsmax lawyers in a calculated attempt to shirk responsibility for what Newsmax knew Lindell would say on air. Lindell shouted over Sellers, saying that Twitter had banned him “because I’m reviewing all the evidence on Friday of the election fraud with all these machines.” Despite Sellers’s on-air plea to Newsmax to “get out of here,” Newsmax did not cut Lindell’s mic, and Sellers walked off set.
The Newsmax-Lindell blowup went semi-viral on social media and received some news coverage. What received less attention, however, was a follow-up appearance made on the network later that evening by Lindell to, according to Dominion, “smooth things over, market MyPillow, and lend further credibility to Lindell and the Big Lie about Dominion.”
Rob Schmitt acknowledged the earlier interview and told Lindell, “obviously you were on the network earlier in the day and we made some waves there. We’ll leave it at that. But you and Newsmax have always had a good relationship.” Newsmax again promoted the Big Lie by giving Lindell a platform to say, in reference to the earlier interview where he had said he had “100% proof” of “fraud with the Dominion machines,” that he would have “something coming out on Friday that is going to really help, a documentary I have put together.” When asked how the Twitter ban had impacted MyPillow’s business, Lindell said “Everyone is buying, and we are so busy, we are so busy, we are hiring. We have over 102 products, it is not just pillows anymore. Customers have always stepped up right now. It’s amazing. Just like Newsmax did.” Schmitt responded, “No kidding, my parents have one of your pillows in fact.” Lindell then pitched MyPillow and told viewers they could still use “the promo code ‘Newsmax’ on MyPillow.com to save up to 66%.”
When Lindell later bought large chunks of airtime on One America News Network, or OAN, the network tried to distance itself from what would undoubtedly be false claims by running a legal disclaimer before his broadcasts. But Dominion argued that this maneuver was disingenuous, at best. “In stark contrast to OAN’s barely legible fine-print disclaimer that the film contained ‘opinions’ ‘not intended to be taken or interpreted by the viewer as established facts,’ on its official Twitter feed, OAN explicitly endorsed and promoted the film as a ‘report breaking down election fraud evidence & showing how the unprecedented level of voter fraud was committed in the 2020 Presidential Election,’” Dominion noted in its complaint.
For Dominion itself, the impact of these lies is immense. “Because of death threats and other threatening messages prompted by the lies told by Lindell and his allies, Dominion has made significant expenditures to protect its people from harm—including by employing on-site police and security,” the company told the court. “Since the beginning of the viral disinformation campaign, Dominion has spent more than $565,000 on private security for the protection of its people.” The company itself has also suffered business damages from the reputational harm it suffered over the past few months. Dominion told the court that it projected a loss of $200 million in potential profits over the next five years and that its resale value, which once ranged between $450 million and $500 million, had been effectively “destroyed.”
What other remedy, beyond these kinds of lawsuits, is available to companies like Dominion? The First Amendment means that Congress can’t simply pass a law banning right-wing outlets from lying to their audiences. (This would also be a mistake for other reasons, even if the First Amendment did allow it.) Activist groups have tried to fight speech with speech by targeting Fox News with boycotts for more than a decade. Their efforts may have had some impact on individual hosts and shows, but they failed to tilt the network as a whole toward more responsible coverage. Fox’s corporate owners announced a 31 percent jump in advertising in the most recent quarterly report, increasing both revenue and profits even as it lost ratings share to right-flank rivals like OAN and Newsmax after the election.
Litigation, however, is a uniquely potent threat to right-wing purveyors of falsehoods. It imposes an outer bound of conduct where basic ethics, civic values, and common sense will not. Lou Dobbs, who spent months disputing the election results without evidence, lost his Fox Business Network show one day after Smartmatic, another voting-machine company, filed a lawsuit against him and his network. Other right-wing outlets have scrambled to retract or rewrite articles that fed into the “Big Lie” before January 6. Some conservative networks have even run special segments disavowing their previous coverage under the threat of legal action.
Lindell, for his part, has welcomed the possibility of a lawsuit. “I dare Dominion to sue me, because then it will get out faster,” he recently told Fox News’s Tucker Carlson, referring to the purported evidence of wrongdoing he has thus far failed to deliver. This does not seem like a wise legal strategy, but it’s also not uncommon among his fellow “Big Lie” adherents. Reflexively doubling down is what got them to this point in the first place. Rudy Giuliani made a similarly audacious claim and then spent a week evading a process server, according to Dominion. Sidney Powell reportedly sat silently in a car as someone tried to serve her with a similar lawsuit, as if it were a Tyrannosaurus rex and she could escape Jurassic Park undevoured as long as she didn’t flinch.
This is a jarring glimpse into how the right-wing media grift operates. There are individual journalists who are conservative and do good or even great work. But the idea of “conservative journalism” has proven somewhat hollow, especially over the past few years. As my colleague Alex Pareene once noted, conservative media outlets tend to trend toward misinformation and propaganda over substantive reporting for the simple reason that it’s easier and more congruous with the conservative movement’s goals. The Trump era laid bare how this dynamic worked: Virtually every great scoop of the last four years came not from Fox, OAN, or Breitbart, but from mainstream networks and newspapers. Trumpworld couldn’t stop complaining about “fake news” while leaking to the same reporters it disparaged.
I am not optimistic that this barrage of lawsuits will lead to a deeper reckoning among the purveyors of right-wing slop. It’s simply too profitable to tell legions of American viewers that Alexandria Ocasio-Cortez sabotaged Texas’s power grid earlier this month for these outlets to stop any time soon. And there is still a vast array of lies and half-truths that right-wing figures can spread without rising to the level of legal action. The First Amendment, for all its glory, is also merciless. As an American journalist, I want that threshold to remain high. But I would be lying if I said it wasn’t somewhat satisfying to watch large swaths of the conservative media ecosystem reckon with the deadly consequences of its actions over the past few months.
