Defendants in 2016 election defamation case argue in favor of ‘absolute privilege
A Washington, D.C.-based law firm and the Pat McCrory Committee Legal Defense Fund renewed their argument Friday for the state Supreme Court to throw out a defamation lawsuit against them.
The defamation claims are tied to election protests filed after the 2016 election.
Four voters working with attorneys linked to the Democratic Party and the left-of-center Southern Coalition for Social Justice are pursuing the case. Plaintiffs claim the Holtzman Vogel law firm, individual lawyers, and the legal defense fund named after the former Republican governor defamed voters while making election protests.
Current Gov. Roy Cooper, a Democrat, unseated the Republican McCrory in the 2016 election. McCrory has emphasized in conversations with Carolina Journal that the legal defense fund was not his official campaign committee.
The state Court of Appeals ruled in 2021 that the four voters could proceed with their suit against the law firm, four of its associates, and the McCrory legal defense fund. Appellate judges threw out the case against one defendant, William Clark Porter IV.
The state Supreme Court agreed in April to take the case. The high court also blocked the Appeals Court’s decision.
In their latest court filing, the defendants emphasize their argument that the contents of election protests are protected by an “absolute privilege” against legal action.
“The Court of Appeals declared that ‘on the Record and facts before us, absolute privilege applies to the election protests containing the allegedly defamatory statements in this case.’
That declaration should have been the end of this case” defendants’ lawyers argued. “Instead, the Court of Appeals held that, although the statements at issue were absolutely privileged and Porter was immune, Defendants were not immune for the same statements because they were not ‘participants.’ The lower court’s holding was a clear departure from this [Supreme] Court’s absolute-privilege jurisprudence.”
The plaintiffs “seek to vilify Defendants” rather than present a legal case dealing with the absolute privilege issue, according to the court filing.
“Defendants never accused Plaintiffs of ‘felony double voting’ or ‘voter fraud,’” the brief explained. “The election protests said: Upon review of early voting files from other states, it appears that [a number of] individual[s] cast ballots in both North Carolina and another state. Casting a ballot in more than one state is a clear violation of North Carolina and federal election laws. Therefore, these ballots were erroneously counted and tabulated by the [identify county] County Board of Elections.”
“The words ‘voter fraud,’ ’fraud,’ ‘felony,’ and ‘crime’ never appear in the election protests,” the brief continued.
The defendants deny claims that their actions were “reckless.” They also question the plaintiffs’ actual harm from the election protests.
“Plaintiffs’ brief exaggerates their victimhood,” according to the brief. “Not only did Plaintiffs admit they suffered no real harm; they invited much of the ‘negative attention,’ about which they now complain.”
The brief cites the plaintiffs’ voluntary statements about the election protests to television reporters. One plaintiff discussed the protests in Facebook posts. Another sat for a video interview with Democracy North Carolina activist Bob Hall, whose organization was “advancing a cause.” One plaintiff “characterized this lawsuit not as an effort to secure a monetary remedy, but instead as an opportunity to make a ‘personal political statement.’”
“If Plaintiffs’ objective is to make a ‘political statement’ by maligning Defendants, then their factual narrative may serve a purpose,” defendants’ lawyers wrote. “But for purposes of determining whether the statements in the election protests are absolutely privileged, Plaintiffs’ ‘salient facts’ are irrelevant. The relevant facts are the facts that the Court of Appeals found (and Plaintiffs do not dispute): the allegedly defamatory statements were made in and relevant to the election protest proceedings.”
“The statements are privileged. According to this Court’s precedents, the facts here dictate that Defendants cannot be liable for defamation,” the brief added.
Before the Appeals Court ruling, “no court in North Carolina has ever before applied a ‘participants’ standard to the absolute privilege,” according to the brief. Appellate judges had determined that the privilege applied only to participants in election protest proceedings.
“[T]he decision below is the only instance in over 170 years of jurisprudence in which a North Carolina court has withheld absolute privilege from a defendant despite the allegedly defamatory statement having been made in due course of a judicial proceeding,” defendants’ lawyers wrote. “Notably, the holding is not just an anomaly within North Carolina. Plaintiffs could not find a case anywhere in the United States in which a court denied a defendant absolute privilege when a statement was made in due course of a judicial proceeding.”
“Absolute privilege provides ‘automatic and impenetrable immunity’ to anybody who makes a statement in due course of a judicial proceeding, and Defendants ask only to be treated — as Porter was — like anybody else,” the brief continued. “Plaintiffs, though, label Defendants as ‘unlicensed,’ ‘out-of-state,’ and ‘non-nonparticipants,’ to carve out Defendants as a special class who should be excluded from absolute privilege. Absolute privilege does not recognize such labels — it is absolute.”
The state Supreme Court has not yet scheduled the case, Bouvier v. Porter, for oral argument.