Michael J. Gottlieb can never remember the exact amount — it’s $148,169,000— that a jury ordered Rudolph W. Giuliani to pay the Georgia election workers Ruby Freeman and Shaye Moss. But Ms. Freeman’s words after the December 2023 victory are indelible to him.
“Don’t waste your time being angry at those who did this to me and my daughter,” said Ms. Freeman, 65, who with her daughter Ms. Moss, 39, was falsely accused by Mr. Giuliani of aiding an imagined plot to steal the 2020 presidential election.
“We are more than conquerors.”
Less than a decade ago, the two women would have struggled to find a lawyer. But Mr. Gottlieb, a partner at the firm Willkie Farr & Gallagher and a former associate counsel in the Obama White House, represented them for free. Convinced that viral lies threaten public discourse and democracy, he is at the forefront of a small but growing cadre of lawyers deploying defamation, one of the oldest areas of the law, as a weapon against a tide of political disinformation.
Mr. Gottlieb has also represented the owner of the Washington pizzeria targeted by “Pizzagate” conspiracy theorists as well as the brother of Seth Rich, a young Democratic National Committee staff member whose 2016 murder ignited bogus theories implicating his family. In the Giuliani case, Mr. Gottlieb, his law partner Meryl Governski and other members of his team worked with Protect Democracy, a nonpartisan group that pushes for laws and policies to counter what it sees as authoritarian threats.
Before the Trump era and the explosion of social media, though, such cases were virtually nonexistent.
“The new information landscape we’re in is a little bit like the Wild West — a lawless space,” said Ian Bassin, a co-founder of Protect Democracy. Lawyers, he said, have turned to defamation, which is legally defined as any false information, either published, broadcast or spoken, that harms the reputation of a person, business or organization. “It’s one of the most effective and only strategies for dealing with these out-and-out falsehoods,” Mr. Bassin said.
In the past few years, more than a dozen high-profile defamation cases have made their way through the courts. A majority have been brought against defendants on the right, but the right brings lawsuits too, often against media organizations.
Monthly Archives: March 2024
Federal court relies on Cook v. Gralike to find New Jersey ballot design likely violates the Elections Clause
Rick H. links to the story about the New Jersey ballot design case and a federal judge finding that the “party line” was unconstitutional. The first claim, unsurprisingly, is an Anderson-Burdick balancing test. But I wanted to draw attention to the holding for the second claim, under the Elections Clause. The court found a likelihood of success on the claim that the law exceeds the state’s power to direct the time, place, and manner of holding elections:
The Elections Clause of the United States Constitution provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of [choosing] Senators.” U.S. Const. art. I, § 4, cl. 1. When the regulation involves the time, place, and manner of primary elections, the only question is whether the state system is preempted by federal election law on the subject. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832 (1995). However, when the regulation does not regulate the “time, place, or manner,” courts must consider whether the regulation on its face or as applied falls outside that grant of power to the state by, for example, “dictat[ing] electoral outcomes, favor[ing] or disfavor[ing] a class of candidates, or evad[ing] important constitutional restraints. Cook v. Gralike, 531 U.S. 510, 523 (2001). The Supreme Court has struck down such regulations when they “attach[ ] a concrete consequence to noncompliance” rather than informing voters about some topic. Id. at 524. The timing may also add to the gravity of injury, especially when it occurs “at the most crucial stage in the election process – the instant before the vote is cast.” Id. at 525 (quoting Anderson v. Martin, 375 U.S. 399, 402 (1964)).
Here, as set forth above, the State conferred its power to regulate the “manner” of federal elections to the county clerks, including the Defendant County Clerks, by requiring them to design and print ballots. N.J. Stat. Ann. 19:23-26.1, 19:42-2. In Defendants’ view, the Bracketing Structure is a permissible regulation on the “manner” of federal elections. On the record already reviewed, Plaintiffs’ evidence is sufficient to make their showing of a likelihood they will succeed in establishing that the Bracketing Structure and ballot placement is improperly influencing primary election outcomes by virtue of the layout on the primary ballots. This would clearly exceed a State’s right to regulate the “manner” of federal elections. Cook, 531 U.S. at 525 (“the instant before the vote is cast” is the “most crucial stage in the election process”).
Cook v. Gralike involved a state attempting to print on the ballot whether the candidate supported or opposed a term limits pledge. The court here also cites Anderson v. Martin, where a state attempted to list the race of candidates on the ballot. (For a look at a ballot from the era with racial designations, check out my blog post here.) Both cases, in my judgment, are underappreciated in how we think about election administration and ballot design (I write about both in “Ballot Speech“), and it’s interesting to see how they’re used here in the New Jersey ballot design case. (Of course, this only applies to congressional elections, not state elections.)
“Donald Trump faces backlash after sharing video featuring a hogtied Joe Biden”
Former President Donald Trump is facing intense criticism for what Democrats say is a new low this weekend after sharing a video on his social media website that has an image of President Joe Biden hogtied.
In a 20-second video posted on the presumptive Republican nominee’s Truth Social page, a pickup truck featuring pro-Trump flags can be seen with a large decal on its rear end showing Biden bound by his legs and hands, lying horizontally.
Trump indicated the clip was filmed in Long Island on Thursday while he was there attending the wake of Officer Jonathan Diller, a New York City police officer gunned down in the line of duty.
“Revisiting Florida 2000 and the Butterfly Effect; The evidence is strong that Al Gore would have won had it not been for an infamous ballot design in Palm Beach County.”
Nate Cohn for NYT’s The Tilt.
“It Depends Who’s Doing the Jawboning”
I’ve got a new post up at Lawfare about a crucial piece missing from the discussion around Murthy v. Missouri, the SCOTUS case about jawboning the social media platforms. Plenty of the Justices had welcome real-world executive experience that came through in last Monday’s argument — but they didn’t recognize that their experiences were also different in ways that should matter. The governing philosophy and structure of different Administrations are distinct, and that context is really important in assessing the potential for coercion.
Or, if you prefer:
Happy Administrations are all alike; unhappy Administrations are each unhappy with social media platforms in their own way.
“Judge kills NJ’s controversial ballot design for Senate primary”
New Jersey’s controversial ballot design that gives party-backed candidates an advantage will be scrapped in the June primary, a federal judge ruled on Friday.
U.S. District Judge Zahid Quraishi granted the preliminary injunction sought by Rep. Andy Kim and two Congressional candidates to eliminate the so-called county line, a feature unique to New Jersey elections that’s given local party bosses inordinate influence over elections. In 19 of 21 counties in the state, candidates backed by county political parties appear in a single column or row, placing them more prominently on the ballot and giving them a nearly insurmountable edge.
The judge ordered the use of office block ballots for the June primary, where candidates are placed together by the office they are seeking. His ruling applies to all offices on the ballot.
The decision is likely to be appealed, but until then it takes away a key tool wielded by political bosses in the state. …
“Donald Trump quietly continues court fight against Maine’s secretary of state”
Billy Kobin for the Bangor Daily News.
“The fight to flip the House just got harder for Dems. And they have New York to blame.”
Zach Montellaro for Politico:
Republicans eked out a narrow win in the 2024 redistricting wars, gaining a single seat before the general election.
While there’s an outside chance of another last-minute redistricting before November, after two significant court rulings this week the House landscape is largely locked in place — and the GOP is breathing a sigh of relief that this mid-decade round of redistricting went its way.
My New Paper: “From Bloggers in Pajamas to The Gateway Pundit: How Government Entities Do and Should Identify Professional Journalists for Access and Protection”
I have posted this draft on SSRN. I will be presenting it at a May 3 Knight Columbia conference, and it is forthcoming as a book chapter in THE FUTURE OF PRESS FREEDOM: DEMOCRACY, LAW & THE NEWS IN CHANGING TIMES (Cambridge U. Press, RonNell Andersen Jones and Sonja R. West eds. forthcoming 2025). Here is the abstract:
This paper examines how government entities determine who is a journalist to allocate resources under conditions of scarcity and to assure that the press can conduct their functions without undue government regulation and interference. Using a new dataset of 172 laws, rules, and procedures that different government entities have used to define the press, it describes the most common tests government entities use for identifying journalists and compares them to each other. Most of the definitions appear aimed at identifying the class of professionals who regularly gather, report, and disseminate news. The paper then describes the relatively rare, reported litigation around these journalist-defining rules, teasing out the potential dangers of relying on particular definitions of journalists. Much of the litigation easily distinguishes between professional and non-professional journalists, and a few have dealt with the exclusion of journalists for permissible reasons, such as disruptive behavior. But not every issue is easy. Using the example of litigation over Maricopa County, Arizona’s decision to exclude a faux journalist for The Gateway Pundit from an area where ballots were being tabulated following the 2022 elections, It focuses particularly on the line between unconstitutional viewpoint discrimination and permissible extension of the press exemption only to those who engage in legitimate professional journalism. The paper then makes four normative recommendations about the tests government entities should use to define journalists. First, government entities should have explicit and meaningful standards for press exceptionalism. Second, most press exceptionalism should be limited to professional journalists who regularly produce news stories or commentary. Third, press exceptionalism should not turn on the type of technology used to communicate. Fourth, government entities should continue to have the power to grant press exceptionalism to “bona fide correspondents of repute in their profession” so long as they do not engage in viewpoint discrimination.
“Georgia lawmakers pass new election rules that could impact 2024 presidential contest” (UPDATED)
Georgia lawmakers on Thursday approved new rules for challenging voters and qualifying for the state’s presidential ballot that could impact the 2024 presidential race in the battleground state.
Senate Bill 189 passed the House by a vote of 101 to 73 and the Senate by a vote of 33-22, sending it to Gov. Brian Kemp for his signature or veto.
Republicans in Georgia have repeatedly floated election changes in the wake of false claims by former President Donald Trump and other Republicans that he lost Georgia’s 16 electoral votes in 2020 because of fraud.
The bill would grant access to Georgia’s ballot to any political party that has qualified for the presidential ballot in at least 20 states or territories. The change could be a boost to independent candidates such as Robert F. Kennedy Jr., whose campaign has spooked Democrats worried it could draw support away from President Joe Biden.
Update: Richard Winger says the AP got this detail about RFK Jr. wrong:
The provision says if a political party or political body is on the ballot for president in at least 20 other states, then it is automatically on for president in Georgia. However, it does not cover independent presidential candidates. Assuming it is signed into law, it will help the No Labels, Green, and Constitution Parties. It won’t help Robert F. Kennedy, Jr., because he expects to be an independent candidate in almost all states, not a minor party nominee. At the most his “We the People Party” will only be on in six states.
The Libertarian Party is already on the ballot for president and other statewide offices. It is not clear if the 2012 court order requiring the state to let presidential candidates on the ballot with at least 7,500 signatures is still in effect. Logically, because the legislature didn’t change the law regarding independent candidates, it should still be in effect for independent presidential candidates.
New OMB race/ethnicity categories
Justin here. This is a really big deal: the federal government’s got new standards for collecting data on race and ethnicity.
The Office of Management and Budget has a sneak preview today of tomorrow’s update of “Statistical Policy Directive No. 15: Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity.” SPD 15 was initially developed in 1977 to help provide consistent data on race and ethnicity throughout the federal government, and drives all kinds of data collection in all kinds of contexts, including the Census, redistricting, and VRA claims. It was updated once in 1997, and this is a long-awaited version 3.0.
There are some big changes in the new standards, but the biggest include combining a question on Hispanic/Latino heritage along with other categories in one race-and-ethnicity question (the previous approach purported to separate race in one question and Hispanic/Latino ethnicity in another); adding a Middle Eastern or North African (MENA) category; and collecting detailed subgroup information within each category as a default.
Among other impacts, in applications like the Census and intercensal questionnaires, these standards will likely continue to help more accurately reveal how multiethnic we are. (Past methodology changes have already given us a far more accurate picture than we used to have: some of the country’s diversification is due to demographic change, but an awful lot is due to better capacity to recognize how diverse we already were, in ways hidden by our measurement instruments.) I’ve written a bit on this in the context of the Census, SPD 15, and the ways that our tools have changed over time.
There are variations available for specialty uses, but here’s what the standard new data collection will look like:
“South Carolina latest state to use congressional map deemed illegal”
Patrick Marley for WaPo:
In a scenario that has played out in three states in recent years, a federal court ruled Thursday that time had run out to draw a new congressional district in South Carolina and that the state would have to proceed this fall with an existing election map the court had previously deemed illegal.
The ruling echoes redistricting cases in other Southern states where courts found that congressional maps violated the voting rights of Black voters and other people of color but allowed them to be used anyway, at least temporarily. In recent years, that happened in Alabama, Georgia and Louisiana.
In the latest instance, a panel of three judges decided to let South Carolina use a new map drawn by the Republican-led legislature because the Supreme Court had not yet decided an appeal that will ultimately determine how the district should be drawn. Voting rights advocates decried the ruling, saying it is unjust to hold even one election in districts that are unconstitutional.
“Once an election happens, you kind of can’t get back that election,” said Leah Aden, senior counsel for the NAACP Legal Defense Fund, which brought the South Carolina lawsuit.
The ruling came a day after a different federal court upheld a congressional map in Florida that favors Republicans and erases a seat held by a Black Democrat.Those decisions, along with others in recent months, mean the congressional maps for 2024 are largely set. Republicans narrowly control the House, and voters this fall will decide whether to let them keep it.
Also Thursday, a federal appeals court issued a ruling that all but ensures North Carolina will use state legislative maps this fall that Democrats and voting rights advocates say dilute Black representation in the statehouse.
Michael Li, senior counsel for the Brennan Center’s Democracy Program, said appeals take so long that states sometimes get a chance to use illegal maps for one or two election cycles before they are forced to draw new ones.
“It’s becoming more common,” he said. “Courts used to go out of their way to have voters not vote on a map that had been deemed illegal. Now, unless you get everything resolved, you have to vote on a map that is illegal. The courts can undermine voters’ rights through the process.”…
“Crystal Mason: Texas woman sentenced to five years over voting error acquitted”
Great news from Sam Levine, who has been all over this story for years:
A Texas appeals court has thrown out a five-year prison sentence for Crystal Mason, a Texas woman who was sentenced for trying to cast a provisional ballot in the 2016 presidential election that was rejected.
Mason, now 49, attempted to vote in Fort Worth in the 2016 even though she was ineligible because she was still on supervised release – which is like probation – for a tax felony. She has always maintained she had no idea she was ineligible and only tried to cast a ballot because her mother urged her to.
A judge convicted her in a 2018 trial that lasted just a few hours.
Mason’s case became well known nationally and struck a chord as an example of an egregious punishment for a voting mistake.
In 2022, Texas’s highest criminal court told a lower appellate court it had to reconsider a ruling upholding Mason’s conviction. On Thursday, that court said there was not sufficient evidence Mason knew she was ineligible to vote.
“We conclude that the quantum of the evidence presented in this case is insufficient to support the conclusion that Mason actually realized that she voted knowing that she was ineligible to do so and, therefore, insufficient to support her conviction for illegal voting,” Justice Wade Birdwell wrote for the court in its Thursday ruling….
Read the ruling.
Campaign Finance Vouchers Do Not Expand the Diversity of Donors: Evidence from Seattle
As I’ve written before, a mistake many political reformers make is in assuming that most citizens are as engaged in politics as the reformers are, or would be if given the appropriate opportunities. A new paper on the Seattle campaign voucher system concludes that providing campaign vouchers to all citizens does not increase the diversity of those who donate to campaigns. Abstract here:
Donating to a campaign is inherently costly, and as a result the composition of campaign donors differs from the composition of the electorate. What happens when the financial barriers to campaign finance participation are removed? This paper analyzes Seattle’s recent campaign finance reform, where all registered voters receive four $25 vouchers to donate to candidates abiding by stricter campaign finance restrictions. Utilizing individual- and census block group-level data combined with administrative donation records, I find that those most mobilized by the availability of vouchers belong to groups already overrepresented within the donor pool. This finding is significant across race, income, past political participation, age, and partisanship. In some cases, the availability of vouchers appears to pull the donor pool further from parity with the larger electorate.
https://www.cambridge.org/core/journals/american-political-science-review/article/campaign-finance-vouchers-do-not-expand-the-diversity-of-donors-evidence-from-seattle/BD8E21A4B646DE4EA56BF8787DF0FF81