Sometimes, truth wins
Sometimes, truth wins
2000 Mules pulled by its co-producer
Last week, Salem Media Group, the co-producer of 2000 Mules, removed the film from its platforms and promised to stop distributing it. Read their apology here, and the coverage from the New York Times, NPR and the Wall Street Journal editorial board.
This happened after a lawsuit by our client Mark Andrews, a Georgia voter and private citizen who was falsely accused of breaking the law in the movie, book, and related promotional efforts (Protect Democracy represents him in partnership with the law firm DuBose Miller LLC and other pro bono counsel.) Read more about the case here.
This is a significant vindication — not just for Mark and his family, but also for truth. The 2020 election was not stolen.
But lawsuits like this one are not just about the 2020 election. They’re also about the future, 2024 and beyond.
A constellation of pro-truth lawsuits
The suit against 2000 Mules is part of a larger trend of successful lawsuits using the oldest and most established legal tool for preventing harmful lies — defamation law — to push back against superspreaders of election disinformation who cause real harm to the human victims of election lies.
Recently, the New Yorker’s Charles Bethea published a long exploration on these cases, as well as Protect Democracy’s “Law For Truth” project: Can Suing People for Lying Save Democracy?
He reports on the origins of the strategy:
A primary threat to democracy, as [Protect Democracy] saw it, was disinformation. Efforts to protect the truth were floundering. In 2020, for example, a nonpartisan group called the Election Integrity Partnership began tracking online posts that appeared to violate the rules of the platforms on which they appeared. But after the election an obscure Trump Administration official launched a crusade against the “censorship industry.” Missouri’s attorney general at the time, a maga Republican, began filing lawsuits alleging that government officials, at times using the nonprofit’s findings, were bullying social-media companies into barring conservative users. In July, 2023, a Trump-appointed district judge in Louisiana ruled that, except in rare circumstances, the government couldn’t work with non-governmental groups to police disinformation. The Supreme Court is expected to rule on the question by June. But, given the uncertainty around the issue, social-media companies have lately backed away from policing lies on their platforms.
As this was unfolding, [Protect Democracy] was working on what it called its “Law for Truth” strategy. “We could see the dominoes,” Rachel Goodman, a former A.C.L.U. attorney, who heads the Law for Truth project, told me. A relatively small number of individuals and media outlets, she explained, account for most election-related disinformation online. According to one study, more than half the retweets of the forty-three most prominent false or misleading stories about voting, prior to the 2020 election, originated from three dozen users. Since 1964, the protective standard in libel law has been “actual malice”: if you could show that someone had willfully lied or recklessly spread mistruths, and damaged a reputation in the process, you might hold him legally responsible. “The idea of getting accountability for people defamed as part of the Big Lie was really interesting,” Goodman said.
The results — and I say this not just as someone lucky enough to be a colleague of many of these lawyers, but as someone who cares deeply about our democracy — have been monumental.
Again, the New Yorker tallies the wins better than I could. Read about them there.
Accountability for past lies can help deter future ones
By seeking accountability for the real-world harms caused by election lies, defamation lawsuits can also help protect future elections — including 2024 — from similar lies by establishing deterrence.
Earlier this week, Jane Bentrott and Aaron Baird explained why accountability for past lies can help prevent future ones:
In this information — and disinformation — age, it’s clear that knowing and reckless lies, particularly those that undermine our democracy, have costs. Before these lawsuits, those costs were borne almost exclusively by the victims of the lies (which includes both the individuals and companies targeted, as well as our democratic institutions). That’s part of what made election disinformation so dangerous, and so appealing for its perpetrators. They could lie easily, instinctively, and without much thought or consideration.
But through this series of cases, longstanding law has started to correct that imbalance.
We don’t know exactly how this rebalancing towards truth will impact the 2024 election. But last time around, many of the disinformation purveyors seemed to have no regard for potential consequences in a frenzy of conspiracy theories.
This year, those same actors — many of whom have personally faced consequences for lying — are certain to pause before doing so again. Or at the very least, their lawyers, insurers, and investors will force them to.
Read Jane and Aaron’s whole piece: Lying about the 2024 election will be harder.
Sometimes truth wins. Keep the faith.
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One side note you may be wondering: how do all these lawsuits interact with free speech?
It’s a question that comes up, but isn’t really answered, in the New Yorker article.
It’s actually pretty simple: our legal system has long struck a balance between protecting critical speech and safeguarding reputations against knowing and reckless lies. It’s called the “actual malice” standard, and it’s a cornerstone of how our democracy works. Even though the standard doesn’t apply to all of Protect Democracy’s clients, each of these cases alleges that the defendants in fact knew their claims were false or recklessly disregarded the truth. By winning these cases, Protect Democracy is demonstrating that the actual malice standard works. It protects honest misstatements, while ensuring that deliberate liars are held to account for their intentional or reckless misconduct.
Read about the history and role of the “actual malice” standard in our democracy in John Langford, Rachel Goodman, and Rebecca Lullo’s white paper and guest essay in the New York Times.
The Trump verdict, with some distance
A week after the first-ever criminal conviction of a former president, Kristy Parker steps back and sorts through the biggest takeaways from what we know and what we don’t. Her toplines:
Regardless of the verdict or the nature of the charges, it is important for democracy that former presidents be held accountable to the law in the same manner as anyone else. “In short, we have seen that a former president can be put on trial and that life for the rest of us, and the functions of our government, can go on.”
The attacks on our legal system by Trump and his allies are misplaced and dangerous. “With his relentless and dangerous attacks on the prosecutors, the trial judge, and the people of New York City who make up its jury pool, Trump has once again proven that his primary interest is in politicizing and destroying our democratic institutions, not taking care to uphold them.”
This case underscored all that we know about Donald Trump’s disdain for women and for voters. “Trump didn’t want voters to know this information when they considered his candidacy in 2016, or now — but having it is their right.”
The fact that this was Donald Trump’s first criminal trial is a failure of the federal judiciary to hold up its role in protecting democracy. “This is no fault of DA Bragg, who stood down in deference to the federal cases. Blame rests squarely in the hands of federal judges who have enabled the delays sought by Defendant Trump and damaged the credibility of the judicial branch in the process.”
Read Kristy’s whole piece here: The week after - Four reflections on the first-ever conviction of a former president.
The Friday briefing was off last week, but we still had some excellent Insights pieces, including:
“What the Trump trials really mean” - a Q&A with Lawfare’s Quinta Jurecic, one of the foremost legal interpreters of this moment in American history.
“Why are autocrats so fixated on trans people?” - Sohini Desai and Justin Florence on a helpful new resource to help identify LGBTQ Scapegoating (a common tactic in the Authoritarian Playbook around the world) from Over Zero.
“Why district lines matter more than our votes” - A conversation with Drew Penrose, the lead author of Our Shared Republic, a new series of essays on electoral systems and proportional representation.
As a reminder, if you want to get these bonus pieces in your inbox (in addition to this weekly briefing) sign up here. They’re also free!
What else we’re tracking:
Two resounding global elections this week. First, don’t count the world’s largest democracy out just yet. In a stunning blow to Prime Minister Narendra Modi, voters seemingly rejected his attempted consolidation of power. Lydia Polgreen explains: “India Keeps Its Glorious, Messy Tradition Alive.”
Second, in a less-surprising landslide, Mexico elected its first female president: Claudia Sheinbaum. Her election has raised fears of continued backsliding, but it’s not as simple as many commentators assume. Mexican political scientist Viri Ríos explains why. (See if you can spot the role of Mexico’s proportional representation electoral system.)
John Harwood, long one of the most effective journalists at recognizing and covering autocratic politics in America, has a brilliant new newsletter aptly called The Stakes. Give it a read.
Hunter Biden’s federal trial is ongoing. President Biden promised he would not pardon his son if convicted. DOJ independence and respect for the limits of the pardon power — check and check.
Steve Bannon was ordered to report to prison by July 1st in his contempt of Congress case for refusing to appear before the January 6th Committee.
Most-read from The Atlantic’s Ron Brownstein: “What Trump’s Total GOP Control Means Next.” Deana El-Mallawany, quoted, argues that “[w]hat should most alarm Americans who believe that somehow ‘the system will hold’ is that for all the red hats and red ties Republican electeds don to appease their leader, they seem to have no red lines.”
In The Economist, American business should not empower a criminal, says Reid Hoffman.
A depressing story from the front lines against election disinformation in the New York Times on what it’s like to be a Republican election clerk in rural Nevada.
Per the Milwaukee Journal Sentinel, former Trump associates have been charged for participation in the fake elector scheme, the first state charges in Wisconsin.
It’s the 80th anniversary of D-Day. Listen to this stirring rendition of the Marseillaise on Omaha Beach. “Contre nous de la tyrannie” indeed.