Thread by @AkivaMCohen

Hey, #LitigationDisasterTourists, let's talk about this defamation suit for a minute. Moss and Freeman were the GA election workers on Rudy's CCTV video with the "suitcases" that were "under the table". They're now suing OAN, its owners, and Rudy for defamation

https://twitter.com/stphnfwlr/status/1474224420197650459

This is a lawsuit that will need to clear the "actual malice" bar. They were election workers performing a government function (counting ballots); commentary on that type of thing needs freedom to be vigorous. So defamation liability can only exist if they can prove1 of 2 things:

1) OAN & Rudy actually knew that the things they were broadcasting about Freeman and Moss were false.

2) OAN & Rudy didn't know for certain they were false but subjectively had serious doubts about whether it was false.

Not "they should have known or had doubts"

Not "they didn't look hard enough at the counter evidence"

Just: What was their actual, subjective state of mind

With that in mind, this is the single most important allegation in the entire complaint. So it's worth looking at this underlying declaration

So a few things here:

1) This is a terminated former employee with limited experience
2) The OAN folks seem truly bonkers
3) Charles Herring thinking that Ashli Babbitt's death might have been faked isn't "run this even though I know it's false" - it's "I'm a nutcase"

Unfortunately, "not fact checked" and "failing to verify source credibility" are not going to get you to "actual malice"

The Kristian Rouz stuff, on the other hand, is a godsend. This is "we had subjective doubts and ran it anyway"

This is the type of stuff that's enough to get you past a motion to dismiss on actual malice ... but only if you can tie the doubts to the particular story.

That said, you're going to get a "whose doubts matter" argument from OAN (along with a "he's lying")

"Our decision makers had no doubt the stories were accurate; that low level employees did shouldn't matter."

Don't think that will work when it's the producers who usually make these calls, but this whole operation is a weird one.

Back to the complaint. Gonna be hard to argue that OAN "knew" the video and Rudy's claims were false "immediately"

How would they have known that? Again, "they believed it because it fit their preferred narrative" is journalistic malpractice but not actual malice

And this, more than anything else, is why I'm writing this tweet thread. I hate arguments like these with the fire of a thousand suns.

*Nobody* has any obligation to believe the government when it tells them something.

Even when what it's telling them is true. The fact that government officials said "this is a lie, here's what really happened" means less than nothing in this context.

Governments lie. All the time, for all sorts of reasons. The official government position for a long time was the Agent Orange was harmless.

That's especially true in the defamation context

The actual malice requirement is there because defamation claims present first amendment concerns. A defamation rule that said "if you contradict the government that's reckless disregard" would be particularly abhorrent.

And, again, the standard is subjective!

Not "what should they have believed/known" but "what did they believe/know"

I'm not going to go paragraph by paragraph through this one; most of the rest of it isn't particularly notable. OAN is a shit-stain of a "news" network that is both partially responsible for and profiting from the ongoing destruction of this great country, so I'm no fan. But ...

The success or failure of this defamation suit isn't going to turn on how wonderful Georgia's fact check was. It's going to turn on whether OAN producers ran a story they doubted was true. This "he said she said" stuff & "what's more likely ... people don't get it" doesn't help

Anyway, hope for the best, but don't expect much from this suit.