The Race Between Consequences and Corruption
In the quest to avoid another January 6, courts can rule but voters and viewers must choose.
In the last five days, two key events have demonstrated the extent to which the fate of the American right hangs in the balance. Will it recover from its Trumpist spasm of authoritarianism and corruption, or will it double down? Was January 6 the nadir of a low American age, or was it a preview of worse things to come?
David Perdue announced Monday he was challenging incumbent Gov. Brian Kemp in the Georgia gubernatorial primary. And what was Perdue’s key line of attack against Kemp? Elections. Perdue, who lost his Senate race to Jon Ossof, claims that Kemp and Georgia Secretary of State Brad Raffensperger “caved” to Stacey Abrams and “cost us two Senate seats, the Senate majority, and gave Joe Biden free rein.”
Trump immediately jumped on the Perdue bandwagon, echoing exactly the same themes:
Wow, it looks like highly respected Senator David Perdue will be running against RINO Brian Kemp for Governor of Georgia. David was a great Senator, and he truly loves his State and his Country. This will be very interesting, and I can’t imagine that Brian Kemp, who has hurt election integrity in Georgia so badly, can do well at the ballot box (unless the election is rigged, of course). He cost us two Senate seats and a Presidential victory in the Great State of Georgia.
Does anyone believe that a Gov. Perdue would stand strong against Donald Trump if Trump loses Georgia again?
Indeed, the Georgia Republican primary is just the latest and perhaps highest-profile example of a concerted effort to replace Republican elected officials who demonstrated courage and integrity during Trump’s effort to steal the 2020 election. Compliance with Trump’s electoral fantasies is a key measure of Republican loyalty.
Four days before Perdue’s announcement, two Georgia election workers, Ruby Freeman and Wandrea Moss, sued a popular right-wing website called The Gateway Pundit and its founders, James and Joseph Hoft. According to the suit, Gateway Pundit was “the top producer of false content during and after the 2020 presidential election.”
How big was Gateway Pundit’s reach? The suit claims that Gateway Pundit achieved “7.2 million shares on social media of its bogus election fraud stories—far more than the social media shares for such national news sites such as The Washington Post, NBC News and NPR.”
Indeed, a close look at right-wing online metrics demonstrates that Gateway Pundit enjoyed extraordinary audience growth during and after the election. In November 2020, its audience grew by more than 300 percent (year-over-year) and it was the seventh-most visited right-wing website in the United States. It remained a top-10 right-wing site throughout the entire election contest.
And it was indeed an absolute cesspool of misinformation. The Freeman/Moss suit focuses on bogus claims of corruption related to the counting of votes in Fulton County, Georgia. Gateway Pundit amplified and expanded upon false claims from the Trump legal team that election workers had asked election observers to leave and then used their absence to count thousands of fraudulent votes.
Gateway Pundit wasn’t subtle. Its headlines alone made shocking claims and its articles explicitly identified the plaintiffs. These were the kinds of headlines that dominated the site:
WHERE’S BILL BARR? — We Got Your Voter Fraud AG Barr — It’s On Video and They Attempted to Steal Georgia with It! — HOW ABOUT A FEW ARRESTS?
What’s Up, Ruby?… BREAKING: Crooked Operative Filmed Pulling Out Suitcases of Ballots in Georgia IS IDENTIFIED
CROOK GETS CAUGHT
As the suit details, the plaintiffs suffered real fear and harm as a result of Gateway Pundit’s false claims:
They caused Ms. Freeman and Ms. Moss to be vilified on social media and subjected to an onslaught of violent, racist threats and harassment of all kinds. At the height of Defendants’ campaign of disinformation, Ms. Freeman, at the recommendation of the FBI, fled her home and did not return for two months. On January 6, 2021, a crowd on foot and in vehicles surrounded Ms. Freeman’s house. Ms. Freeman was forced to shutter her online business when social media became impossible to navigate. Ms. Moss has suffered personal and professional consequences in her ongoing work on Fulton County elections. On at least two occasions, strangers showed up at her grandmother’s home and attempted to push into the house in order to make a “citizens’ arrest.” Fulton County elections’ general email address would forward incoming emails to Ms. Moss and many of her colleagues, filling her workplace with harassing messages. (Emphasis added.)
This is terrifying stuff. As I’ve written before, I’m a strong supporter of the First Amendment, and I understand that defamation law is vital to American ordered liberty. Protection against harmful lies was a bedrock protection of common law, and defamation has never been held to be part of the “the freedom of speech” safeguarded by the First Amendment.
We should be cautious in its use. Frivolous lawsuits can and do impose real costs on small publishers, for example, But properly used defamation litigation is simply an indispensable bulwark against misinformation.
Now let’s tie these two stories together. I’d submit that two competing forces are in a race, and the finish line is 2024. It’s consequences versus corruption. Can the instruments of American justice impose sufficient costs on the architects of the “Stop the Steal” movement before the corruption of the Republican Party is complete?
A future assault on an American election is going to depend for its success on both a firehose of misinformation to motivate the American right and a compliant political class that’s willing to bend to Trump. If the likes of Gateway Pundit (or Fox, Newsmax, OANN or personalities like Mike Lindell, Sidney Powell, and Rudy Giuliani) not only escape any real consequences for their lies but actually profit from them, then prepare for a rerun, except with even more willing participants in the national scam.
(And if you don’t think there’s considerable profit in lies, consider this—last week a federal judge ordered Powell’s legal team to pay more than $175,000 in sanctions payments to the city of Detroit and to Michigan officials, but that’s a tiny fraction of the $14 million Powell raised to fund her election contests.)
Thus it’s imperative for plaintiffs to press on in court, to impose all of the consequences for defamation that the law will allow. The purpose is three-fold, to compensate victims for their loss, to punish the perpetrators for their lies, and to broadcast to the Republican public that they cannot trust the media that led them astray.
But there’s only so much the legal system can do to save the Republican public from itself. Courts can deliver consequences and establish a degree of deterrence. But if the incentives from viewers and voters don’t change, then even a bankrupt Gateway Pundit or OANN will be replaced by another, similar site—one that is perhaps slightly more subtle in its lies but just as destructive to the body politic.
In other words, the courts can deliver a message, but the public has to hear and respond. It has to make different choices in who it watches and who it elects. The great strength of democracy and of the free market is also its potential fatal weakness—it’s pretty darn efficient at delivering to its participants exactly what they want.
The key word is “participants.” In a highly sorted, gerrymandered nation, the small minority of voting-eligible Americans who vote in primaries effectively select the overwhelming majority of our public officials. Thus minorities can control our politics even as majorities are increasingly disgusted or exhausted by the choices the parties present.
How does corruption win? When Republicans read Gateway Pundit even if its lies are proven in court. Or when voters choose men like David Perdue over men like Brian Kemp—or when they reject conservative dissenters like Liz Cheney or Peter Meijer for the sole sin of rejecting a president who tried to overthrow our republic.
In the race between consequences and corruption, the courts will have their say, but voters and viewers will decide who prevails.
One more thing …
If you’re not listening to Advisory Opinions, the flagship podcast of The Dispatch and the greatest legal podcast in the known universe, now is a great time to start. I’m biased, but the two most recent episodes are particularly good.
In “Charging a School Shooter’s Parents,” the most recent episode we take a look at the dreadful Michigan school shooting and analyze whether the evidence supports charging the shooter’s parents for involuntary manslaughter.
In “The End of Roe and Casey?” we discussed in detail the oral argument in Dobbs v. Jackson Women’s Health and explained why we both believe that as of now a majority seems set to overrule Roe.
Also don’t forget the new Good Faith podcast! Last week we hit the top three in the religion and spirituality category at Apple Podcasts, and this week we re-entered the top 10 with a great episode (again, I’m biased) on “deconstructing” religious faith.
One last thing …
Eighty years ago today, the Imperial Japanese Navy attacked the U.S. Pacific Fleet at Pearl Harbor, and the United States entered World War II. The attack was a tactical victory for Japan, but it ultimately proved disastrous—not just because it placed Japan in conflict with a far stronger nation, but also because the attack itself didn’t accomplish its ambitious goals. This National Geographic documentary tells that underappreciated aspect of the story. It’s worth a watch: