US Dominion, US v. Newsmax Media, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

US DOMINION, INC., DOMINION )
VOTING SYSTEMS, INC., and )
DOMINION VOTING SYSTEMS )
CORPORATION, ) C.A. No.: N21C-08-063 EMD
)
Plaintiffs, )
)
v. )
)
NEWSMAX MEDIA, INC., and )
NEWSMAX BROADCASTING, LLC, )
)
Defendants. )

Submitted: March 21, 2025
Decided: April 9, 2025

Upon Defendants’ Motion for Summary Judgment,
DENIED.

Upon Plaintiffs’ Motion for Summary Judgment,
GRANTED in part and DENIED in part.

Brian E. Farnan, Esquire, Michael J. Farnan, Esquire, Rosemary J. Piergiovanni, Esquire, Farnan
LLP, Wilmington, Delaware; Rodney Smolla, Esquire, South Royalton, Vermont; Stephen
Shackelford, Jr., Esquire, Mark Hatch-Miller, Esquire, Zach Savage, Esquire, Christina
Dieckmann, Esquire, Eve Levin, Esquire, George R. El-Khoury, Esquire, Susman Godfrey LLP,
New York, New York; Davida Brook, Esquire, Susman Godfrey LLP, Los Angeles, California;
Jonathan Ross, Esquire, Mary Kathryn Sammons, Esquire, Laranda Walker, Esquire, Elizabeth
Hadaway, Esquire, Susman Godfrey LLP, Houston, Texas; Edgar Sargent, Esquire, Steve Seigel,
Esquire, Katherine Peaslee, Esquire, Susman Godfrey LLP, Seattle, Washington. Attorneys for
Plaintiffs US Dominion, Inc., Dominion Voting Systems, Inc., and Dominion Voting Systems
Corporation.

C. Barr Flinn, Esquire, Kevin A. Guerke, Esquire, Timothy E. Lengkeek, Esquire, Lauren
Dunkle Fortunato, Esquire, Michael A. Laukaitis II, Esquire, Young Conaway Stargatt & Taylor,
LLP, Wilmington, Delaware; Howard M. Cooper, Esquire, Joseph M. Cacace, Esquire, Josh L.
Launer, Esquire, Maria A. Lombardi, Esquire, Todd & Weld LLP, Boston, Massachusetts;
Victoria L. Weatherford, Esquire, Baker and Hostetler LLP, San Francisco, California; Andrew
B. Grossman, Esquire, Mark W. DeLaquil, Esquire, Renee M. Knudsen, Esquire, Brian V.
Johnson, Esquire, Baker and Hostetler LLP, Washington, DC; Michael E. Olney, Esquire,
Newsmax Media, Inc., New York, New York. Attorneys for Defendants Newsmax Media, Inc.,
and Newsmax Broadcasting, LLC.

DAVIS, J.

I. INTRODUCTION

This is a civil defamation action. Plaintiffs US Dominion, Inc., Dominion Voting

Systems, Inc., and Dominion Voting Systems Corporation (collectively, “Dominion”) claim that

Defendants Newsmax Media, Inc., and Newsmax Broadcasting, LLC (collectively, “Newsmax”)

published false and defamatory statements about Dominion relating to Dominion’s role in the

2020 United States Presidential Election (the “Election”). 1

Dominion filed its Complaint on August 10, 2021, seeking economic and punitive

damages for defamation per se against Newsmax (the “Complaint”). 2 Newsmax filed a Motion

to Dismiss under Superior Court Civil Rule 12(b)(6) on October 11, 2021. 3 The Court denied

the Motion to Dismiss on June 16, 2022. 4 Newsmax filed an Answer and Counterclaim on

August 22, 2022. 5 Newsmax filed a motion to amend its Answer on March 11, 2024, which the

Court granted on May 3, 2024. 6 Newsmax filed the Amended Answer on May 7, 2024 (the

“Answer”). 7

On January 16, 2025, the Court held that Colorado substantive law applies in this action. 8

1
See Plaintiffs’ Complaint (hereinafter “Compl.”) (D.I. No. 1).
2
Id.
3
See Newsmax’s Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim (D.I. No. 21).
4
See D.I. No. 61.
5
See Newsmax’s Answer to Plaintiffs’ Complaint and Counterclaim (D.I. No. 69).
6
See D.I. No. 299.
7
See Newsmax’s First Amended Answer to Plaintiffs’ Complaint and Counterclaim (hereinafter “Answer”) (D.I.
No. 301).
8
See Decision on Choice of Law (D.I. No. 468).

2
Presently before the Court are the parties’ Cross-Motions for Summary Judgment

pursuant to Superior Court Civil Rule 56 filed on January 24, 2025 (together, the “Motions,”

individually the “Newsmax Motion” and “Dominion Motion”). 9 Each party timely filed their

Oppositions on February 20, 2025, 10 and their Reply Briefs on March 7, 2025. 11

The Court heard oral arguments on the Motions on March 21, 2025, at which time the

matter was taken under advisement.

For the reasons stated below, the Court DENIES the Newsmax Motion and GRANTS in

part and DENIES in part the Dominion Motion.

II. BACKGROUND

A. THE PARTIES

1. Plaintiffs

US Dominion, Inc. is a Delaware corporation with its principal place of business in

Denver, Colorado. 12 Dominion Voting Systems, Inc. is a Delaware corporation with its principal

place of business in Denver, Colorado. 13 Dominion Voting Systems Corporation is an Ontario,

Canada corporation with its principal place of business in Toronto, Ontario. 14 Dominion Voting

Systems, Inc. and Dominion Voting Systems Corporation are wholly owned subsidiaries of US

Dominion, Inc. 15

9
See Newsmax’s Motion for Summary Judgment (hereinafter “Def. Mot.”) (D.I. No. 471); see also Dominion’s
Motion for Summary Judgment on Liability of Newsmax Media, Inc. (hereinafter “Pl. Mot.”) (D.I. No. 473).
10
See Newsmax’s Opposition Brief to Plaintiff’s Motion for Summary Judgment (hereinafter “Def. Opp’n”) (D.I.
No. 503); see also Dominion’s Opposition to Newsmax Media, Inc.’s Motion for Summary Judgment (hereinafter
“Pl. Opp’n”) (D.I. No. 504).
11
See Newsmax’s Reply Brief in Support of its Motion for Summary Judgment (hereinafter “Def. Reply Br.”) (D.I.
No. 529); see also Dominion’s Reply in Further Support of its Motion for Summary Judgment (hereinafter “Pl.
Reply Br.”) (D.I. No. 527).
12
See Compl. ¶ 11.
13
See id. ¶ 12.
14
See id. ¶ 13.
15
See id. ¶¶ 12-13.

3
2. Defendants

Newsmax Media, Inc. is a Delaware corporation with its principal place of business in

Boca Raton, Florida. 16 Newsmax Media, Inc. operates a television news channel, the website

www.newsmax.com, mobile applications for smartphones, and various social media accounts,

including a YouTube channel. 17

Newsmax Broadcasting, LLC is Newsmax Media, Inc.’s wholly owned subsidiary. 18

Newsmax Broadcasting, LLC “owns and operates Newsmax TV.” 19

B. RELEVANT NON-PARTIES

1. “Newsmax’s Leaders” 20

Christopher (Chris) Ruddy is the founder, CEO, and President of Newsmax Media, Inc.

and Newsmax Broadcasting, LLC. 21 Mr. Ruddy is “responsible for executive management” of

Newsmax. 22

Elliot Jacobson “contracted with Newsmax Broadcasting, LLC” as the “Chief Content

Officer and the Executive Vice President of Programming.” 23 Mr. Jacobson is “responsible for

managing the operations and logistics” for Newsmax. 24 Dominion asserts that during the

relevant time surrounding the Election, “[h]osts and senior producers reported to [Mr.]

Jacobson.” 25

16
See Def. Mot. at 4.
17
See Compl. ¶ 14.
18
See Dominion’s Motion for Leave to File First Amended Complaint Adding Newsmax Broadcasting, LLC as a
Co-Defendant (D.I. No. 581).
19
Def. Mot. at 4.
20
Id.
21
See id.
22
Id.
23
Id.; see Def. Reply Br. at 4.
24
Id.
25
Pl. Mot. at 10.

4
Gary Kanofsky “contracted with Newsmax Broadcasting, LLC” and was Newsmax’s

Interim News Director from February 2020 to August 2021. 26 As such, Mr. Kanofsky was “not

an executive” at Newsmax during the relevant time surrounding the Election; 27 however,

Dominion claims that during this time, Mr. Kanofsky reported to Mr. Jacobson, and Newsmax

reporters “reported directly to [Mr.] Kanofsky.” 28 Newsmax asserts that Mr. Kanofsky was

“hired to help develop Newsmax’s live programming, and his daily responsibilities included

creating systems, processes, teams, and best practices as Newsmax grew.” 29 Mr. Kanofsky has

been the “Vice President of Production” at Newsmax since August 2021. 30

2. Newsmax Shows, Hosts, and Producers

Greg Kelly is the host of Greg Kelly Reports, an “hour-long ‘opinion-based show’ that

aired on weeknights at 7 pm.” 31 Damon Plotnick is the executive producer of Greg Kelly

Reports. 32 Sebastian Gorka was a guest-host who appeared on Greg Kelly Reports. 33 Six

Statements are attributed to Greg Kelly Reports: Statements B, C, G, N, R, and S.

Emma Rechenberg and Shaun Kraisman are the co-hosts of National Report, “a three-

hour long program that aired weekdays from 9 am to noon” and “featured about a hundred guests

per week.” 34 Amalia Cella is the producer of National Report. 35 Two Statements are attributed

to National Report: Statements D and F.

26
Def. Reply Br. at 4.
27
Def. Mot. at 4.
28
Pl. Mot. at 10.
29
Def. Mot. at 4.
30
GARY KANOFSKY, Career, https://www.kanofsky.com/4 (last visited Feb. 5, 2025).
31
Def. Mot. at 20, 89.
32
See Pl. Mot. at 10.
33
See Compl. ¶ 184; see also Def. Mot. at 36, 76.
34
Def. Mot. at 22.
35
See Pl. Mot. at 10.

5
Heather Childers and Bob Sellers were the co-hosts of American Agenda, which provided

a “live, fast-paced look at national news and international events” and aired on Newsmax

“weekdays from 2-4pm.” 36 Jerry Burke was the executive producer of American Agenda. 37

Two Statements are attributed to American Agenda: Statements E and Q.

Rob Schmitt was the host of Wake Up America, which aired on Newsmax “weekdays at

7am,” 38 and The Count, which provided the “top ten stories of the week” and aired on Newsmax

on “Saturdays at 8pm.” 39 One Statement is attributed to Wake Up America, Statement H. One

Statement is attributed to The Count, Statement L, which also featured co-host Mark Halperin.

Grant Stinchfield was the host of Stinchfield, “‘an opinion show’ that aired at 8pm on

weeknights.” 40 Cynthia Costas produced Stinchfield. 41 Three Statements are attributed to

Stinchfield: Statements I, K, and P.

Chris Salcedo is the host of the Chris Salcedo Show, “an hour-long ‘opinion show’ that

aired on weeknights at 5pm” on Newsmax. 42 Julian Atienza is the executive producer of the

Chris Salcedo Show. 43 One Statement, Statement J, is attributed to Chris Salcedo Show.

Howie Carr is the host of The Howie Carr Show. 44 Newsmax “‘simulcast’ this show

‘simultaneously with [Carr’s] live radio broadcast’ pursuant to a licensing agreement with Howie

Carr Show Enterprises, LLC, which produced the show.” 45 One Statement, Statement K, is

attributed to The Howie Carr Show.

36
Def. Mot. at 23.
37
See Pl. Mot. at 10.
38
Def. Mot. at 26.
39
Id. at 30.
40
Id. at 26.
41
See Pl. Mot. at 11.
42
Def. Mot. at 27.
43
See Pl. Mot. at 10.
44
See Def. Mot. at 49.
45
Id.

6
Benny Johnson was the host of The Benny Report, an “opinion-based show” that aired on

Newsmax. 46 One Statement, Statement M, is attributed to The Benny Report.

John Bachman is the host of John Bachman Now, which covers “‘[p]olitical topics,

financial topics, health topics,’ and occasionally ‘sports.’” 47 Erin Parker and Chris Tamas are

the producers of John Bachman Now. 48 One Statement, Statement O, is attributed to John

Bachman Now.

Other relevant Newsmax personnel include Ron Messer (producer), 49 Jill Vitale

(booker), 50 David Perel (website editorial director), 51 Geoff Harbaugh (producer), 52 Pierce

Sargeant (producer), 53 Stephanie Cassidy (head of booking), 54 Alicia Hesse (booker), 55 David

Wasser (executive producer), 56 Michelle Lopata (associate producer), 57 Chris Knowles

(executive producer), 58 and Jason Rosenberg (senior producer). 59

3. Relevant Newsmax Guests

Sidney Powell is a former federal prosecutor and former member of President Donald

Trump’s legal team. 60 Ms. Powell appeared as a live on-air guest on: Greg Kelly Reports on

November 17, 2020; The Howie Carr Show on November 20, 2020; The Count on November 21,

2020; and Greg Kelly Reports on December 7, 2020. 61 Two shows played video “clips” of Ms.

46
Id. at 31, 94.
47
Id. at 33.
48
See Pl. Mot. at 10.
49
See Pl. Mot. at 16-17.
50
See id. at 17.
51
See id.
52
See id. at 73.
53
See id.
54
See id. at 21.
55
See id. at 74.
56
See id. at 75.
57
See id. at 102.
58
See id. at 88.
59
See id. at 96.
60
See Compl. ¶ 19; see also Def. Mot. at 13.
61
See Compl. ¶¶ 248(g), (k), (l), (n); see also Def. Mot. at 25, 29, 30, 32.

7
Powell from a November 15, 2020, interview by Maria Bartiromo on Fox (the “Powell Fox

Interview”): Greg Kelly Reports on November 16, 2020; and National Report on November 16,

2020. 62 On November 19, 2020, Stinchfield played a clip of Ms. Powell speaking at a press

conference held earlier the same day by three members of Trump’s legal team, Ms. Powell,

Rudolph (Rudy) Giuliani, and Jenna Ellis (the “Press Conference”), which discussed “Trump’s

legal actions and strategy.” 63

Dick Morris is a political commentator and former advisor to Bill Clinton. 64 Dominion

asserts that Mr. Morris is a “regular” “paid Newsmax contributor.” 65 Mr. Morris appeared as a

live on-air guest on: Greg Kelly Reports on November 16, 2020; American Agenda on November

17, 2020; John Bachman Now on December 14, 2020; and American Agenda on December 18,

2020. 66

Joe diGenova is a “former United States Attorney for Washington, D.C., and member of

Trump’s legal team.” 67 Mr. DiGenova appeared on National Report as a live on-air guest on

November 16, 2020. 68

Patrick Byrne is the founder and former CEO of Overstock.com. 69 Newsmax claims that

Mr. Byrne “had been working with a team investigating claims of vote fraud.” 70 Mr. Byrne

appeared on National Report as a live on-air guest on November 17, 2020. 71

62
See Compl. ¶¶ 248(b), (d); see also Def. Mot. at 53, 56.
63
See Compl. ¶ 248(i); see also Def. Mot. at 27.
64
See Compl. ¶ 22; see also Def. Mot. at 22.
65
Compl. ¶ 22; Pl. Mot. at 11.
66
See Compl. ¶¶ 248(c), (e), (o), (q); see also Def. Mot. at 22, 24, 33, 34.
67
Def. Mot. at 23.
68
See Compl. ¶ 248(d); see also Def. Mot. at 23.
69
See Compl. ¶ 23; see also Def. Mot. at 24.
70
Def. Mot. at 24.
71
See Compl. ¶ 248(f); see also Def. Mot. at 24-25.

8
Emerald Robinson is “a former White House Correspondent for Newsmax hired in

January 2020.” 72 Ms. Robinson appeared live for a segment featured on Wake Up America on

November 17, 2020. 73

Mr. Stinchfield appeared as a live on-air guest on an episode of the Chris Salcedo Show

on November 19, 2020. 74 The broadcast included clips of Mr. Giuliani and Ms. Ellis speaking at

the Press Conference. 75

Russell Ramsland is a 2016 Republican congressional candidate and authored the

“Ramsland Report,” an “expert report” filed in a lawsuit in Antrim County, Michigan, the site of

alleged “vote-flipping.” 76 The Ramsland Report concluded that “Dominion Voting System is

intentionally and purposefully designed with inherent errors to create systemic fraud and

influence election results.” 77 Mr. Ramsland appeared on Greg Kelly Reports as a live on-air

guest on December 18, 2020. 78

Michael (Mike) Lindell is the founder and CEO of MyPillow, Inc. 79 Newsmax describes

Mr. Lindell as “a businessman who had been investigating fraud claims and supporting election-

related challenges.” 80 Mr. Lindell appeared as a live on-air guest on: Stinchfield on December

17, 2020; and Greg Kelly Reports on December 21, 2020. 81

72
Def. Mot. at 24; see Pl. Mot. at 56: “Robinson was ultimately terminated from Newsmax for tweeting false
information on other topics (namely, COVID).”
73
See Compl. ¶ 248(h); see also Def. Mot. at 26.
74
See Compl. ¶ 248(j); see also Def. Mot. at 28.
75
See id.
76
See Compl. ¶ 31; see also Def. Mot. at 15-16; see also Pl. Mot. at 45 n.5: “The Antrim County Clerk [] explained,
over and over again, how the error in initial reporting of unofficial votes in her county was the result of human
error—her own admitted error—not any mischief with the machines.”
77
Def. Mot. at 15-16.
78
See Compl. ¶ 248(r); see also Def. Mot. at 35.
79
See Compl. ¶ 21.
80
Def. Mot. at 34.
81
See Compl. ¶¶ 248(p), (s); see also Def. Mot. at 34, 36.

9
C. THE ALLEGED DEFAMATORY CONDUCT

Dominion alleges that in the wake of the Election, Newsmax engaged in a defamatory

campaign against Dominion, comprising of nineteen at-issue statements—eighteen statements

that aired on Newsmax’s television news channel, and one social media post. 82 Each statement

is titled “Statement A,” “Statement B,” “Statement C,” etc., and together are the “Statements.”

The Statements span a six-week period, from November 10, 2020, through December 21,

2020. 83 Dominion classifies the Statements into five categories: 84

(1) Dominion committed election fraud by rigging the Election (the “election fraud
lie”). 85 Dominion asserts that all nineteen Statements, Statements A through S,
contain the “election fraud lie.”

(2) Dominion’s software and algorithms manipulated vote counts in the Election
(the “algorithm lie”). 86 Dominion asserts that fifteen Statements contain the
“algorithm lie”: Statements B, D, F, G, H, I, J, K, L, N, O, P, Q, R, and S.

(3) Dominion is owned by or owns a company founded in Venezuela to rig
elections for Hugo Chavez (the “Venezuela lie”). 87 Dominion asserts that
eleven Statements contain the “Venezuela lie”: Statements A, B, D, E, G, H, J,
L, M, N, and O.

(4) Dominion paid kickbacks to government officials who used its machines in
swing states during the Election (the “kickback lie”). 88 Dominion asserts that
Statement L contains the “kickback lie.”

(5) Dominion was involved with alleged voting irregularities in Dallas, Texas in
2018 (the “Dallas lie”). 89 Dominion asserts that Statement F contains the
“Dallas lie.”

82
See generally Compl. ¶¶ 248(a)-(s).
83
See id.; see also Def. Mot. at 19, 36.
84
See Pl. Mot. at 28.
85
See id. at 30.
86
See id. at 43.
87
See id. at 48.
88
See id. at 50.
89
See id. at 53.

10
D. DOMINION RESPONDS TO THE ALLEGATIONS

1. “SETTING THE RECORD STRAIGHT”: Fact Sheets from Dominion

On November 11, 2020, Dominion published a “Fact Sheet” on its public website to

“rebut[] the lies and falsehoods that had begun to spread about Dominion and the 2020

Election.” 90 Dominion titled the webpage “SETTING THE RECORD STRAIGHT.” 91

At the same time, Dominion began “circulating a regular email titled ‘SETTING THE

RECORD STRAIGHT: FACTS & RUMORS.’ The emails were complete with links to

independent sources disproving the false claims being made about the company.” 92

According to Dominion, on November 12, 2020, “[Mr.] Kanofsky began researching

Dominion online. … [Mr.] Kanofsky found, and circulated broadly to hosts and producers of the

accused broadcasts, Dominion’s ‘SETTING THE RECORD STRAIGHT’ press release.” 93 The

email’s subject line was “RESPONSE FROM DOMINION VOTING SYSTEMS.” 94

Newsmax claims that it broadcasted the Fact Sheet on Stinchfield on November 12, 2020,

“[b]efore any of the challenged statements aired … to give its viewers Dominion’s side of the

story.” 95 Newsmax contends that Stinchfield stated, “[t]he problem is, Dominion may not know

about a hack or switch. In fact, no one accused Dominion of being in on anything, only that they

could be the possible victims of something, only that the system could be vulnerable. That’s the

accusation here, and it certainly needs investigating.” 96

90
Pl. Mot. at 18.
91
Compl. ¶ 119.
92
Id.
93
Pl. Mot. at 84-85.
94
Id. at 18 (Pl. Mot., Ex. 175, Dominion Fact Sheet).
95
Def. Mot. at 120 (Def. Mot., Ex. 123).
96
Def. Opp’n at 7 (Def. Mot., Ex. 238 at 8:2-9).

11
Dominion asserts that on November 17, 2020, Dominion sent the first “SETTING THE

RECORD STRAIGHT” email to Newsmax’s booking producer, Alicia Hesse. 97 “Upon

information and belief, [Ms.] Hesse shared the contents of the emails she received from

Dominion with the hosts and other producers for the shows she books.” 98 Dominion claims that

it “received no reply from Newsmax in response to this email.” 99 Newsmax, however, maintains

that it has “no record of this alleged communication, and [Ms.] Hesse testified that she did not

see the press releases and believes, if they were sent to her, that she likely deleted them, possibly

without reviewing them.” 100

Dominion insists that “Newsmax received thirty-six ‘SETTING THE RECORD

STRAIGHT’ releases debunking false claims made about Dominion.” 101

2. Dominion’s Retraction Requests to Newsmax, and Newsmax’s “Clarification”

On December 18, 2020, “Dominion sent a formal retraction demand letter to Newsmax.

In that letter, Dominion once again put Newsmax on formal written notice of facts—which

Newsmax knew of from widespread reporting, from receiving numerous iterations of

Dominion’s ‘SETTING THE RECORD STRAIGHT’ emails beginning over a month

before….” 102 Dominion claims that “Newsmax refused to retract” any prior broadcast. 103

On December 19, 2020, “Newsmax posted a clarification notice on its website” (the

“Clarification”), stating in relevant part:

Newsmax has found no evidence either Dominion or Smartmatic owns the other,
or has any business association with each other. We have no evidence Dominion
uses Smartmatic’s software or vice versa. No evidence has been offered that
Dominion or Smartmatic used software or reprogrammed software that

97
See Compl. ¶ 120.
98
Id.
99
Id. ¶ 121.
100
Def. Mot. at 39 (Def. Mot., Ex. 176 at 63:4-5, 65:1-66:12).
101
Pl. Mot. at 19 n.4.
102
Compl. ¶ 177.
103
Id. ¶ 179.

12
manipulated votes in the 2020 election. … Smartmatic is a U.S. company and not
owned by the Venezuelan government, Hugo Chavez or any foreign official or
entity. 104

Newsmax claims that it aired the Clarification “across its programs” on December 21, 2020. 105

On December 21, 2020, guest-host Mr. Gorka interviewed Lindell on Greg Kelly

Reports. According to Dominion, the interview included “algorithm lies” and “fraud lies.” 106

On December 22, 2020, Dominion sent a second retraction letter to Newsmax. 107

Dominion “explain[ed] that Dominion was ‘disappointed that Newsmax continues to publish

lies about US Dominion Inc.,’ despite Dominion’s retraction demand.” 108

Dominion claims that on December 28, 2020, Newsmax’s lawyers “responded to

Dominion’s retraction-demand and notice letters.” 109 Newsmax’s lawyers “did not contest that

what Newsmax had broadcast about Dominion was false; they claimed only that Newsmax was

not at fault.” 110

Newsmax maintains that between November 13, 2020, and December 22, 2020,

“Newsmax contacted Dominion in writing for its side of the story at least nine more times, in

addition to phone calls. … Altogether, Newsmax sent at least 10 written requests for Dominion’s

side of the story.” 111 “It was only on December 16, … that Dominion responded, stating that

Newsmax could ‘cite Dominion’s fact sheet’ and ‘[Mr.] Poulos’s testimony from yesterday’s

hearing in Michigan.’” … That is exactly what Newsmax did in Statement R.” 112

104
Def. Mot. at 37, 39 (Def. Mot., Ex. 131, Newsmax Clarification).
105
Id.
106
Pl. Mot. at 124.
107
Compl. ¶ 185.
108
Id.
109
Pl. Mot. at 28.
110
Id.
111
Def. Mot. at 37.
112
Id. at 38.

13
E. RELEVANT INTERNAL DIALOGUE OF NEWSMAX PERSONNEL PRIOR TO THE
STATEMENTS

For background, Dominion notes that on Election Day, “Fox was the first outlet to call

Arizona for Biden—at 11:20 p.m. on November 3 [2020]. Fox’s decision infuriated viewers,

conservative activists, and the White House, but presented an opportunity for Newsmax to

capitalize on the disillusioned and disaffected.” 113

On November 4, 2020, Mr. Ruddy emailed Mr. Kanofsky and Mr. Jacobson, directing

them to “show throughout [the] day” a Newsweek report titled “Conservatives Turn Against Fox

News Over Election Coverage, Change Channel to Newsmax.” 114

The same day, Mr. Ruddy sent an email stating in relevant part, “Last night was a turning

point for the network. We are now a force to be reckoned with.” 115

On November 5, 2020, “in an email to executives, hosts, and guests, [Mr.] Ruddy

instructed: ‘we can show clips of this,’ referring to Newsweek’s coverage of anti-Fox News

protests….” 116

On November 6, 2020, Mr. Ruddy emailed host Mr. Bachman “a bullet-point list of

points to cover,” including “Fox at War with Trump package,” “Election night, newsmax called

fla, trump won it handily, but fox wouldn’t call,” and “Newsmax is beneficiary … Nielsen

reports 3 million viewers tuned in election night for our coverage, a record number…. Now with

trump fighting for his political fight [sic], it’s clear, Fox will not be there for him.” 117

113
Pl. Mot. at 14.
114
Id. at 15 (Pl. Mot., Ex. 163).
115
Id. at 14 (Pl. Mot., Ex. 160).
116
Id. at 15 (Pl. Mot., Ex. 166).
117
Id.

14
On November 7, 2020, Mr. Jacobson texted Ms. Parker, “We are not calling it. It is a

huge opportunity for us as by tomorrow we will be the only outlet that will not have called it so

millions of vireos [sic] will be looking. Viewers. For an outlet.” 118

The same day, Mr. Kanofsky “received audience feedback admonishing Newsmax for

failing to call the election for Joe Biden, as ‘there is no evidence of illegal voting, ballots being

accepted when they should not have been accepted, or other fatal flaw that renders the outcome

of the vote nationwide unsustainable.’” 119 Mr. Kanofsky forwarded the feedback to Mr.

Jacobson and wrote, “This is exactly what I am worried about….” 120

On November 8, 2020, Mr. Burke emailed other Newsmax producers, stating in relevant

part, “we know Viewers are leaving other channels in droves, and we welcome them.” 121

The same day, Mr. Jacobson texted Mr. Burke, “Jerry[.] I think we need to reinforce our

surprise that fox called this election[.] It’s the big opportunity[.]” 122

On November 9, 2020, Mr. Sellers texted Mr. Burke, “How long are we going to have to

play along with election fraud?” 123 Newsmax, however, contends that “the text this line was

ripped from never even mentions Dominion.” 124 Newsmax argues that Dominion’s

“characterization of this text is misleading,” stating, “[l]ater in the same thread, [Mr.] Sellers

writes, ‘I think there’s a legit legal challenge in PA,’ and [Mr.] Sellers and [Mr.] Burke agreed

that Trump has ‘every right to pursue’ legal remedies ‘until the count ends and the courts have

ruled.’” 125

118
Id. at 65 (Pl. Mot., Ex. 224).
119
Id. at 16 (Pl. Mot., Ex. 168).
120
Id.
121
Id. (Pl. Mot., Ex. 149).
122
Id. (Pl. Mot., Ex. 225).
123
Id. (Pl. Mot., Ex. 169).
124
Def. Opp’n at 14.
125
Id. at 74.

15
F. RELEVANT INTERNAL DIALOGUE OF NEWSMAX PERSONNEL DURING THE TIMEFRAME
OF THE STATEMENTS (NOVEMBER 10, 2020, TO DECEMBER 21, 2020)

On November 10, 2020, Mr. Ruddy emailed Mr. Perel, “Please prepare: … Dominion

Software Played a Big Role in Vote Count, Did It Help Biden,” and included a link to an article

titled “Human error, Dominion voting equipment fuel false fraud claims in Michigan.” 126

In a “Newsmax TV Operations Meeting” on November 10, 2020, Mr. Ruddy stated that

Newsmax is doing “incredible numbers” and “beat Fox Business.” 127

On November 12, 2020, Mr. Ruddy “bragged on Twitter that President Trump had called

him and ‘congratulated Newsmax on our ratings explosion.’” 128

On November 12, 2020, “[Mr.] Ruddy forwarded to [Mr.] Kanofsky a link to an article

titled ‘Newsmax TV: Trump voters are flocking to a channel that claims Biden is not president-

elect’ with the note: ‘this is great.’” 129

On November 12, 2020, “[Mr.] Kanofsky sent Newsmax producers, hosts, and [Mr.]

Ruddy an email, subject ‘RESPONSE FROM DOMINION VOTING SYSTEMS,’ that

contained [the Fact Sheet].” 130

On November 12, 2020, Mr. Ruddy sent an email to Mr. Jacobson and Mr. Kanofsky

with the subject line “Newsmax’s Editorial Position,” and the body of the email stated in relevant

part:

Newsmax does not have evidence of widespread voter fraud. We have no evidence
of a voter fraud conspiracy nor do we make such claims on Newsmax. 131 … We
believe we should not censor allegations made by the President or his lawyers or
surrogates. Our job is not to filter the news but report information and allow
Americans to decide. 132

126
Pl. Mot. at 17 (Pl. Mot., Ex. 173).
127
Id. (Pl. Mot., Ex. 171).
128
Id. at 15 (Pl. Mot., Ex. 90 at 343:24-344:4).
129
Id. at 65 (Pl. Mot., Ex. 214).
130
Id. at 18 (Pl. Mot., Ex. 175).
131
Id. at 19-20 (Pl. Mot., Exs. 58, 156).
132
Def. Opp’n at 50 (referencing Pl. Mot., Exs. 58, 156).

16
Later in the same day, Mr. Jacobson sent the body of Mr. Ruddy’s email to Newsmax

“hosts and producers” with the subject line “Newsmax’s Editorial Position on the election.” 133

After sending the above email, Mr. Ruddy sent an “urgent” internal email stating “please

add to this story many criticisms of dominions software[.] also they bought the company that was

accused of rigging the Venezuela election[.]” 134

On November 12, 2020, and November 13, 2020, Mr. Stinchfield “invited Dominion on

the air to respond to the Trump Legal Team’s claims … In the first invitation, Newsmax

identified ‘alleged problems with your Dominion system’ and ‘a report from Texas that raises

concerns,’ including whether Dominion’s voting machines are ‘safe from fraudulent or

unauthorized manipulation.’” 135 Dominion “ignored the request—its VP of Government Affairs

Kay Stimpson remarked, ‘I don’t think we need to worry about this request,’ apparently because

she’d never heard of Newsmax, and Dominion’s PR consultant mocked Newsmax as being ‘on

the far side of the crazy wall.’” 136

On November 12, 2020, Mr. Ruddy forwarded Mr. Kanofsky a link to an article titled

“Newsmax TV: Trump voters are flocking to a channel that claims Biden is not president-elect”

and noted: “this is great.” 137

On November 13, 2020, “[Mr.] Burke texted the production staff of American Agenda an

image of a Fox blimp crashing with the caption: ‘The crashing of #FoxNews. More and more

people are moving to #Newsmax.’” 138

133
Pl. Mot. at 20 (Pl. Mot., Ex. 156).
134
Id. (Pl. Mot., Ex. 176).
135
Def. Mot. at 119 (Def. Mot., Ex. 11).
136
Def. Opp’n at 7 (Def. Mot., Ex. 11).
137
Pl. Mot. at 65 (Pl. Mot., Ex. 214).
138
Id. at 65-66 (Pl. Mot., Ex. 228).

17
On November 13, 2020, Mr. Sellers texted Mr. Jacobson “about an appearance [Mr.]

Morris had done regarding election fraud allegations, stating, ‘I think it’s a good idea not to have

Dick Morris on my show anymore…. This is the second time I’ve had a run in with him—both

times where I was trying to maintain the integrity of our network.’” 139

On November 13, 2020, Mr. Wasser emailed Mr. Jacobson, stating in relevant part,

“There is not a shred of evidence to support that [fraud] allegation from [Mr. Morris].” 140

On November 22, 2020, Mr. Ruddy texted Jimmy Finkelstein, then-owner of The Hill,

about Ms. Powell, stating, “She’s nuts.” 141 Mr. Ruddy then stated “in reference to the Trump

legal team: ‘I was told earlier tonight that she has been a Lonewolf, raising money for her own

C4 and also not sharing legal documents with the team.’” 142 Mr. Finkelstein texted back, “the

whole thing is stupid and most [sic] stop. It’s embarrassing.” Mr. Ruddy responded, “Jimmy

don’t worry when they release the Kraken we will all be vindicated! You can’t make this shit

up.” 143

On November 22, 2020, in an email to Edward Pentin, contributor to the National

Catholic Register, 144 Mr. Ruddy “cautioned Pentin against having Cardinal Leo Burke weigh in

on the voter fraud claims: ‘I’d like Sidney but she is a little loose with the facts so we have to be

a little careful with his Eminence weighing in.’” 145

139
Id. at 75 (Pl. Mot., Ex. 241).
140
Id. (Pl. Mot., Ex. 240).
141
Id. at 72 (Pl. Mot., Ex. 236).
142
Id.
143
Id.
144
Id. (Pl. Mot., Ex. 233).
145
Id.

18
On November 22, 2020, Mr. Ruddy texted another individual a “meme” 146 that was

“apparently … circulating online” suggesting that Republicans were leaving Fox for

Newsmax. 147

On November 22, 2020, “after the Trump campaign distanced itself from [Ms.] Powell,

[Mr.] Ruddy texted pollster John McLaughlin: ‘Sidney Powell Trump is apparently so upset she

is giving up the Trump name, she wants only to be referred to as Sidney Powell now, and she’s

planning on retiring either to Roswell or area 51!’” 148

The same day, “while talking about election fraud conspiracies,” Mr. Burke texted Mr.

Sellers, “I think ruddy knows there is a market for this stuff.” 149 Newsmax, however, insists that

this text thread “never mentions Dominion.” 150

On December 4, 2020, Mr. Kanofsky emailed Mr. Sargeant and Mr. Jacobson stating in

relevant part:

[Ms. Powell] has been routinely accused of advancing especially controversial
claims including Chinese Money, Hugo Chavez, and a litany of accusations
regarding Dominion which have been batted down or (arguably) repudiated. When
is she going to step forward with specific and unambiguous evidence which stands
up to the scrutiny it will be afforded in the court system? Or – is her contention
that she’s already done so? She’s simply got to answer for this. 151

On December 15, 2020, Mr. Kanofsky “referred to [Ms.] Powell’s election fraud claims

as ‘insanity’” in an email to Mr. Jacobson. 152

146
“Meme: An amusing or interesting item (such as a captioned picture or video) or genre of items that is spread
widely online especially through social media.” MERRIAM-WEBSTER, Meme, https://www.merriam-
webster.com/dictionary/meme (last visited Feb. 18, 2025).
147
Pl. Mot. at 14 (Pl. Mot., Ex. 158).
148
Id. (Pl. Mot., Ex. 234).
149
Id. (Pl. Mot., Ex. 159).
150
Def. Opp’n at 14.
151
Pl. Mot. at 73 (Pl. Mot., Ex. 309).
152
Id. at 74 (Pl. Mot., Ex. 151).

19
On December 20, 2020, Mr. Ruddy texted Mr. McLaughlin: “I hear [Trump] is meeting

with sydney [sic] Powell tonight actually at the White House scary.” 153

III. PARTIES’ CONTENTIONS

A. PLAINTIFFS

First, Dominion argues that the Statements are false. 154 Dominion asserts that since the

Court decided US Dominion, Inc. v. Fox News Network, LLC, “Newsmax has developed zero

evidence to dispute falsity.” 155

Second, Dominion contends that the Statements are “of and concerning” Dominion

because each Statement identifies Dominion expressly by name. 156

Third, Dominion asserts that Newsmax published the Statements. 157 Dominion argues

that Newsmax published Statement A because Newsmax controlled Ms. Robinson’s social

media. 158 Dominion contends that Newsmax published, and republished, Statements B through

S directly on its news channel, website, and social media accounts. 159

Fourth, Dominion argues that Newsmax acted with actual malice. 160 Dominion asserts:

(i) Newsmax executives—Messrs. Ruddy, Jacobson, and Kanofsky—had actual malice; 161 (ii)

“at least one individual within Newsmax who knew or recklessly disregarded the truth has or

153
Id. (Pl. Mot., Ex. 230).
154
See id. at 28.
155
Id. at 5 (emphasis supplied) (referencing US Dominion, Inc. v. Fox News Network, LLC, 293 A.3d 1002 (Del.
Super. 2023)) (hereinafter “US Dominion, Inc.”).
156
See id. at 55.
157
See id. at 55.
158
See id. at 56.
159
See id. at 78.
160
See id. at 58.
161
See id. at 81-85.

20
shares responsibility for the publication of each Statement;” 162 and (iii) circumstantial evidence

shows actual malice, including a financial motive and departure from journalistic standards. 163

Fifth, Dominion claims that the Statements are per se defamatory because each one

imputes either a criminal offense or conduct inconsistent with Dominion’s business. 164

Sixth, Dominion contends that it is entitled to summary judgment on two of Newsmax’s

affirmative defenses: (i) the fair report privilege; and (ii) the incremental harm doctrine. 165

B. DEFENDANTS

First, Newsmax argues that it is entitled to summary judgment on actual malice because

Dominion fails to meet its burden of proving, by clear and convincing evidence, that each

Statement was published with actual malice by a responsible Newsmax employee. 166

Second, Newsmax asserts that the Statements are not actionable as defamation because:

(i) Dominion cannot prove publication; 167 (ii) the fair report privilege and incremental harm

doctrine protects Newsmax; 168 and (iii) the Statements are non-actionable opinions. 169

Third, Newsmax contends that Dominion cannot prove damages because: (i) the

“presumption of regularity” applies; 170 (ii) Dominion’s damages are speculative and contradicted

162
Id. at 85.
163
See id. at 65-79.
164
See id. at 57.
165
See id. at 127-129; see also Pl. Opp’n at 5, 60. In its Motion, Dominion argued that it was also entitled to
summary judgment on Newsmax’s neutral report defense. However, the parties do not contest that there exists no
neutral report privilege under Colorado law. Thus, for purposes of the Motions, the parties are only contesting
Newsmax’s defenses of the fair report privilege and incremental harm doctrine.
166
See Def. Mot. at 41.
167
See id. at 77.
168
See id. at 78.
169
See id. at 86.
170
See id.

21
by evidence; 171 (iii) Dominion attributed the same damages to others; 172 and (iv) Dominion

cannot recover lost enterprise value damages. 173

Fourth, Newsmax argues that Dominion is not entitled to punitive damages because there

is no evidence of fraud, malice, or willful and wanton conduct. 174

Fifth, Newsmax asserts that it is entitled to an offset of Dominion’s $787.5 million

settlement with Fox for the “same alleged harms.” 175

IV. STANDARD OF REVIEW

Superior Court Civil Rule 56 governs motions for summary judgment. 176 The Court’s

principal function when considering a motion for summary judgment is to examine the record to

determine whether genuine issues of material fact exist, “but not to decide such issues.” 177

Summary judgment will be granted if, after viewing the record in a light most favorable to a

nonmoving party, no genuine issues of material fact exist and the moving party is entitled to

judgment as a matter of law. 178 If, however, the record reveals that material facts are in dispute,

or if the factual record has not been developed thoroughly enough to allow the Court to apply the

law to the factual record, then summary judgment will not be granted. 179 The moving party

bears the initial burden of demonstrating that the undisputed facts support its claims or

defenses. 180 If the motion is properly supported, then the burden shifts to the non-moving party

171
See id. at 104-13.
172
See id. at 115-16.
173
See id. at 116-17.
174
See id. at 118.
175
Id. at 121.
176
Super. Ct. Civ. R. 56.
177
Merrill v. Crothall-American Inc., 606 A.2d 96, 99-100 (Del. 1992) (internal citations omitted); Oliver B.
Cannon & Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del. Super. 1973).
178
See Merrill, 606 A.2d at 99-100.
179
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); see also Cook v. City of Harrington, 1990 WL 35244, at
*3 (Del. Super. Feb. 22, 1990) (citing Ebersole, 180 A.2d at 467) (“Summary judgment will not be granted under
any circumstances when the record indicates … that it is desirable to inquire more thoroughly into the facts in order
to clarify the application of law to the circumstances.”).
180
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1970) (citing Ebersole, 180 A.2d at 470).

22
to demonstrate that there are material issues of fact for the resolution by the ultimate fact-

finder. 181

“These well-established standards and rules equally apply [to the extent] the parties have

filed cross-motions for summary judgment.” 182 Where cross-motions for summary judgment are

filed and neither party argues that a genuine issue of material fact exists, “the Court shall deem

the motions to be the equivalent of a stipulation for decision on the merits based on the record

submitted with the motions.” 183 However, “the existence of cross motions for summary

judgment does not act per se as a concession that there is an absence of factual issues.” 184

Therefore, where cross-motions for summary judgment are filed and an issue of material fact

exists, summary judgment is not appropriate. 185 To determine whether a genuine issue of

material fact exists, the Court evaluates each motion independently. 186 Again, where it seems

prudent to make a more thorough inquiry into the facts, summary judgment will be denied. 187

V. DISCUSSION

Dominion asserts a claim for defamation per se against Newsmax. Dominion therefore

must prove that when the record is reviewed in a light most favorable to Newsmax, no genuine

issues of material fact exist as to each element of defamation.

181
See Brzoska v. Olsen, 668 A.2d 1355, 1364 (Del. 1995).
182
IDT Corp. v. U.S. Specialty Ins. Co., 2019 WL 413692, at *5 (Del. Super. Jan. 31, 2019) (citations omitted); see
Capano v. Lockwood, 2013 WL 2724634, at *2 (Del. Super. May 31, 2013) (citing Total Care Physicians, P.A. v.
O'Hara, 798 A.2d 1043, 1050 (Del. Super. 2001)).
183
Super. Ct. Civ. R. 56(h).
184
United Vanguard Fund, Inc. v. TakeCare, Inc., 693 A. 2d 1076, 1079 (Del. 1997).
185
Motors Liquidation Co. DIP Lenders Tr. v. Allianz Ins. Co., 2017 WL 2495417, at *5 (Del. Super. June 19,
2017), aff’d sub nom., Motors Liquidation Co. DIP Lenders Tr. v. Allstate Ins. Co., 191 A.3d 1109 (Del. 2018);
Comet Sys., Inc. S’holders’ Agent v. MIVA, Inc., 980 A.2d 1024, 1029 (Del. Ch. 2008); see also Anolick v. Holy
Trinity Greek Orthodox Church, Inc., 787 A.2d 732, 738 (Del. Ch. 2001) (“[T]he presence of cross-motions ‘does
not act per se as a concession that there is an absence of factual issues.’” (quoting United Vanguard Fund, Inc., 693
A.2d at 1079).
186
Motors Liquidation, 2017 WL 2495417, at *5; see Fasciana v. Elec. Data Sys. Corp., 829 A.2d 160, 167 (Del.
Ch. 2003).
187
Ebersole, 180 A.2d at 470-72; Pathmark Stores, Inc. v. 3821 Assocs., L.P., 663 A.2d 1189, 1191 (Del. Ch. 1995).

23
Under Colorado law, the elements of a defamation claim are: “(1) a defamatory statement

concerning another; (2) published to a third party; (3) with fault amounting to at least negligence

on the part of the publisher; and (4) either actionability of the statement irrespective of special

damages or the existence of special damages to the plaintiff caused by the publication.” 188

Where, as here, the defamatory statement involves a matter of public concern, 189 the

plaintiff faces heightened standards. 190 The plaintiff must prove: (1) falsity by clear and

convincing evidence; (2) publication by clear and convincing evidence; (3) actual malice by

clear and convincing evidence; 191 and (4) actual damages, even if the statement is defamatory

per se. 192 Clear and convincing evidence is “evidence that is highly probable and free from

serious or substantial doubt.” 193

A. THE COURT FINDS THAT THE STATEMENTS CONSTITUTE DEFAMATION PER SE

Whether a statement is defamatory per se is a question of law. 194 Colorado law

recognizes “two types of defamatory statements: statements which are libelous or slanderous per

se, and those that are libelous or slanderous per quod.” 195 A per se defamatory statement “must

be (1) on its face and without extrinsic proof, unmistakenly recognized as injurious (defamatory

meaning) and (2) specifically directed at the plaintiff (identity).” 196 Here, the parties only

dispute the first element.

188
Lawson v. Stow, 2014 COA 26, ¶ 15 (quoting Williams v. Dist. Ct., 866 P.2d 908, 911 n.4 (Colo. 1993)).
189
The parties do not dispute that the Statements involve a matter of public concern. See Def. Mot. at 42; see also
Pl. Opp’n at 30 n.4.
190
Lawson, ¶ 18.
191
See L.S.S. v. S.A.P., 2022 COA 123, ¶ 45: “[W]here actual malice must be shown, the applicable burden is clear
and convincing evidence.”
192
Anderson v. Senthilnathan, 2023 COA 88, ¶ 13.
193
Destination Maternity v. Burren, 2020 CO 41, ¶ 10 (quoting Metro Moving & Storage Co. v. Gussert, 914 P.2d
411, 414 (Colo. App. 1995)).
194
See Gordon v. Boyles, 99 P.3d 75, 79 (Colo. App. 2004) (citing Walker v. Associated Press, 417 P.2d 486, 489
(Colo. 1966)).
195
Keohane v. Wilkerson, 859 P.2d 291, 301 (Colo. App. 1993) (hereinafter “Wilkerson”).
196
Gordon, 99 P.3d at 78-79 (citing Lininger v. Knight, 226 P.2d 809, 812-13 (Colo. 1951)).

24
The traditional categories of per se defamatory statements are those which impute “(1) a

criminal offense; (2) a loathsome disease; (3) a matter incompatible with the individual’s

business, trade, profession, or office; or (4) serious sexual misconduct.” 197

In evaluating whether a statement is per se defamatory, courts “examine the statement

‘alone, without the aid of inducements, colloquialism, innuendos, and explanatory

circumstances.’” 198 Additionally, courts focus on a statement’s overall “gist,” “not the literal

truth or falsity of each word.” 199

Dominion argues that all the Statements are per se defamatory because each imputes a

criminal offense or an improper conduct of a lawful business. 200 Dominion notes that in Fox, the

Court held statements that:

[C]laimed [] Dominion committed election fraud; manipulated vote counts through
its software and algorithms; is owned by a company founded in Venezuela to rig
elections for dictator Hugo Chavez; and paid kickbacks to government officials
who used its machines in elections … strike at the “basic integrity” of [Dominion’s]
business: providing voting systems to state and local governments … [and] are
defamatory per se. 201

Dominion asserts that the Court should similarly rule that all the Statements, except

Statement F, are per se defamatory. 202 Though not covered by Fox, 203 Dominion maintains that

Statement F is nevertheless defamatory per se because it “‘directly implicate[s] and damage[s]

the basic integrity’” of Dominion’s business. 204

197
Id. at 79 (citing RESTATEMENT (SECOND) OF TORTS § 570); see Wilkerson, 859 P.2d at 301 (citing Cinquanta v.
Burdett, 388 P.2d 779, 780-81 (Colo. 1963)).
198
Wilkerson, 859 P.2d at 301 (quoting Inter-State Detective Bureau, Inc. v. Denver Post, Inc., 484 P.2d 131, 133
(Colo. App. 1971)).
199
Coomer v. Donald J. Trump for President, Inc., 2024 COA 35, ¶ 90 (hereinafter “Coomer”).
200
See Pl. Reply Br. at 10-27 (quoting Wilkerson, 859 P.2d at 301 (edits in original)).
201
US Dominion, Inc., 293 A.3d at 1053; see Pl. Mot. at 30-53, 57.
202
Pl. Mot. at 57.
203
Statement F is not covered by the Fox ruling because it contains the Dallas Lie and no statement at issue in Fox
similarly alleged that “Dominion was involved with alleged voting irregularities in Dallas, Texas, in 2018[.]” Id. at
53-54. See generally US Dominion, Inc., 293 A.3d at 1020-23.
204
Pl. Mot. at 57-58 (quoting US Dominion, Inc., 293 A.3d at 1055) (edits in original).

25
In its Opposition, Newsmax notes that because the Statements involve a matter of public

concern, Dominion must establish actual damages, even if the Statements are defamatory per

se. 205 Newsmax contends that Dominion’s lack of evidence regarding actual damages precludes

summary judgment on liability. 206 Newsmax then argues that “[m]any of the challenged

statements are not actionable defamation and, taken on their own term, are not materially

false.” 207 This final argument blends together Newsmax’s contentions concerning per se

defamation, falsity, and opinion. 208

The Court concludes that all the Statements are per se defamatory because each suggests

that Dominion aided in election fraud. 209 Statements B, C, D, F, G, H, I, K, L, P, and R state that

the Election was “absolutely stolen” using Dominion’s software. 210 Similarly, Statements B, D,

G, H, I, K, L, N, P, Q, R, and S accuse Dominion’s software of being full of “problems,

vulnerabilities[,]” 211 and containing “a corrupt algorithm” designed to “switch[] votes from

President Trump to Biden.” 212 Statement F claims “a hack … involving Dominion technologies”

caused “irregularities” in the 2018 Dallas election. 213 Statement L suggests that Dominion paid

government officials kickbacks for using its voting machines. 214 Finally, Statements A, D, E, G,

205
See Def. Opp’n at 17 (quoting McIntye v. Jones, 194 P.3d 519, 524 (Colo. App. 2008)).
206
Id.
207
Id. at 21-34 (arguing Statements B, C, D, E, F, L, M, N, O, P, Q, R, and S are not per se defamatory).
208
Id. Dominion further criticizes Newsmax’s evaluation of the Statements as an impermissible “piecemeal
dissection of some statements in some accused broadcasts,” when under the proper “full context” inquiry all the
Statements are per se defamatory. Pl. Reply Br. at 12-27 (citing Coomer, ¶ 90) (“[I]t is not the literal truth or falsity
of each word or detail used in a statement which determines whether or not it is defamatory, but whether the ‘gist or
sting’ of the statement is true or false, benign or defamatory, in substance.”)).
209
See Compl., Exs. 11-30.
210
Compl., Ex. 13; see Compl., Exs. 12, 14, 16-20, 22-23, 27, 29.
211
Compl., Ex. 12.
212
Compl., Exs. 19-20; see Compl., Exs. 14, 17-18, 22-24, 27-30.
213
Compl., Ex. 16.
214
Compl., Ex. 23.

26
H, J, M, N, and O claim that Dominion is affiliated with dictator Hugo Chavez, utilized to rig

elections in Venezuela, and improperly counted votes abroad. 215

Thus, each Statement accuses Dominion of participating in crimes, both in the United

States and abroad. Each Statement also attacks the integrity of Dominion’s “business: providing

voting systems to state and local governments.” 216 While Newsmax provides additional context

surrounding the Statements, 217 under Colorado law, the Statements “alone” control whether they

are defamatory per se. 218 Accordingly, the Court finds that all the Statements are per se

defamatory. 219

The parties disagree as to whether Newsmax is insulated from liability under the First

Amendment principle that pure opinions cannot be actionable as defamation. Colorado courts

hold that “accusations of criminal activity, ‘even in the form of opinion, are not constitutionally

protected.’” 220 Because all the Statements suggest that Dominion engaged in criminal activity by

aiding in election fraud, whether they assert opinions is it is accordingly irrelevant.

Even if the opinion inquiry were relevant, the Court alternatively finds that all the

Statements are nonetheless actionable because none assert pure opinions. Attached to this

decision is an appendix (the “Appendix”). The Appendix goes through each of the Statements

and decides whether the Statement constitutes a statement of fact or opinion, or one of mixed

215
See Compl., Exs. 11, 14-15, 17-18, 21, 24-26.
216
US Dominion, Inc., 293 A.3d at 1053.
217
See Def. Mot. at 19-36.
218
Wilkerson, 859 P.2d at 301.
219
See Arrington v. Palmer, 971 P.2d 669, 671 (Colo. App. 1998) (holding a statement accusing an individual of
participating in a criminal offense was per se defamatory); Kendall v. Lively, 31 P.2d 343, 343-44 (Colo. 1934)
(holding statements that “the milk sold by the plaintiff was filthy, dirty, unhealthful, and taken from filthy and
unhealthy cows, and that it showed on analysis an extremely high bacterial count and a high count of B. Coli,” were
per se defamatory of plaintiff’s business); Brooks v. Jackson, 813 P.2d 847, 848 (Colo. App. 1991) (defamatory
remarks relating to the conduct of an individual’s business, tantamount to defamation of his business and
professional reputation, amounted to slander per se because injury to reputation is presumed.”) (citing Rowe v. Metz,
579 P.2d 83 (Colo. 1978))).
220
Keohane v. Stewart, 882 P.2d 1293, 1304 (Colo. 1994) (en banc) (hereinafter “Keohane”).

27
fact and opinion. The Court finds that even if the Statements were not per se defamatory, each

Statement would be actionable because they assert either facts or mixed facts/opinions.

Beyond the classification dispute, the parties also contest the effect of a finding that the

Statements are per se defamatory. Typically, “[a] plaintiff proceeding under a theory of

defamation per se need not plead or prove special damages.” 221 Colorado law, however,

recognizes an exception for statements that involve a matter of public concern. 222 For such

statements, the plaintiff “must establish actual damages to maintain the action, even where the

statement is defamatory per se.” 223 Long-established Colorado law provides that “[i]t is a matter

of general public concern that, at all elections, … safeguards be afforded.” 224

Here, each Statement addresses either the Election or the 2018 Dallas elections. The

Statements, therefore, each involve a matter of public concern. Accordingly, the Court holds

that, even though the Statements are defamatory per se, Dominion must prove damages at trial.

Therefore, the Court will GRANT summary judgment in favor of Dominion on whether

the statements are per se defamatory.

B. DOMINION IS ENTITLED TO SUMMARY JUDGMENT ON THE ELEMENT OF FALSITY

Under Colorado law, the burden is on the plaintiff to prove that the alleged defamatory

statement is “materially false” by clear and convincing evidence. 225 “To establish falsity, a

plaintiff must show that the substance or the gist of the statement was inaccurate. … ‘Minor

inaccuracies do not amount to falsity’ so long as the substance or the gist of the statement was

221
Wilkerson, 859 P.2d at 301.
222
See McIntye, 194 P.3d at 524.
223
Id. (citing Keohane, 882 P.2d at 1304).
224
Mauff v. People, 123 P. 101, 103 (Colo. 1912); see Tender Care Veterinary Ctr., Inc. v. Lind-Barnett, 2023 COA
114, ¶ 20 (“a matter is of public concern when it can fairly be considered as relating to any matter of political,
social, or other concern to the community[.]” (internal quotes omitted) (emphasis added)); Coomer v. Salem Media
of Colorado, Inc., 2025 COA 2, ¶ 23 (finding statements related to rigging the 2016 election, which also reference
Dominion, “involve[d] a matter of public concern[.]”) (hereinafter “Salem Media”).
225
See Jogan Health, LLC v. Scripps Media, Inc., 2025 COA 4, ¶¶ 22-24.

28
true.” 226 The statement must also be “‘likely to cause reasonable people to think “significantly

less favorably” about the plaintiff’ than if they knew the whole truth.” 227

In US Dominion, Inc. v. Fox News Network, LLC, the Court closely examined the falsity

of Fox’s statements relating to Dominion’s role in the Election. 228 The Court granted summary

judgment in favor of Dominion on the element of falsity for four categories of statements: the

“election fraud lie,” “algorithm lie,” “Venezuela lie,” and the “kickback lie.” 229 The Court held

that the evidence, as developed in that litigation, demonstrated that none of the statements

relating to Dominion about the 2020 election were true. 230

Dominion argues that since Fox, “Newsmax has developed zero evidence to dispute

falsity.” 231

While the instant Statements are similar in topic to those examined in Fox, the Statements

are not the same. As such, the Court must examine the falsity of each Statement.

1. The “Election Fraud Lie”

Dominion asserts that all nineteen Statements contain the “election fraud lie.” Dominion

provides the following to argue that there is no genuine issue of material fact as to falsity for the

“election fraud lie”: (i) Dominion’s use of state and federal certification and testing as required

by the Cybersecurity and Infrastructure Security Agency; 232 (ii) Dominion’s use of “pre-election

logic and accuracy” testing in “contested swing-state jurisdictions that used Dominion voting

machines,” which provides “additional assurances of accuracy, and is often required by state

226
Id. (citations omitted).
227
Fry v. Lee, 2013 COA 100, ¶ 50.
228
See US Dominion, Inc., 293 A.3d at 1035.
229
Id. at 1039.
230
Id. (emphasis in original).
231
Pl. Mot. at 5 (emphasis supplied).
232
Id. at 31 (Pl. Mot., Exs. 22, 47).

29
law;” 233 (iii) hand counts, state audits, and recounts of paper ballots “for each vote cast in the

contested swing-state jurisdictions;” 234 (iv) public evidence published by reputable sources like

the Cybersecurity & Infrastructure Security Agency, the National Association of State Election

Directors, and the National Association of Secretaries of State; 235 (v) U.S. EAC Commissioner,

Benjamin Hovland’s, sworn declaration that there was “no evidence Dominion voting systems

deleted, lost, changed, or compromised votes in the 2020 Election;” 236 (vi) Dominion’s “source

code” showing no evidence of “any mechanism or functionality for switching votes, deleting

votes, or manufacturing additional fraudulent votes;” 237 and (vii) Dominion’s “contemporaneous

and sworn statements,” including the Fact Sheets posted on its website and provided to

Newsmax. 238

In its Opposition, Newsmax only specifically addresses two Statements concerning the

“election fraud lie”—Statements E and Q.

Regarding Statement E, Newsmax argues that Dominion “does not attempt to show” the

falsity of Childers’s comment that Dominion was sitting on the “board of the Department of

Homeland Security, Cybersecurity and Infrastructure Agency.” 239 “Public records show that

Dominion did serve on the ‘Election Infrastructure Subsector Government Coordinating Council’

within the Department of Homeland Security’s Cybersecurity and Infrastructure Agency. Even

if Childers erred in identifying the precise entity—which Dominion has not shown—that would

not make her statement materially false.” 240

233
Id. at 32.
234
Id.
235
Id. at 38.
236
Id. (Pl. Mot., Ex. 47).
237
Id. at 39 (Pl. Mot., Ex. 57).
238
Id. at 40.
239
Def. Opp’n at 26.
240
Id.

30
For Statement Q, Newsmax argues that “[e]ven if the ‘sting’ of Morris’s comment was

that Dominion’s machines are vulnerable to hacking, Dominion does not and cannot prove that

false….” 241

2. The “Algorithm Lie”

Dominion asserts that fifteen Statements contain the “algorithm lie.” In addition to the

evidence offered above for the “election lie,” Dominion also provides the following to argue that

there is no genuine issue of material fact as to falsity for the “algorithm lie”: (i) “basic

knowledge about the U.S. electoral system and process makes clear that the claimed forms of

vote manipulation, including external control by Dominion, are not feasible;” 242 (ii) Mr. Poulos’

“sworn testimony before the Michigan Senate Oversight Committee in December 2020,” stating,

“No votes are sent overseas. Let me be clear[] [b]allots aren’t sent anywhere, not overseas, not

over state lines, and not even over county lines…[a]ll the votes are counted by local bipartisan

US election officials in the United States;” 243 and (iii) when Mr. Ruddy was asked if he

“believe[d] that the machines, the Dominion machines, flipped votes in the 2020 election,” Mr.

Ruddy stated, “I don’t believe it because there’s been no evidence that has come out since this

period to show that that happened.” 244

3. The “Venezuela Lie”

Dominion asserts that eleven Statements contain the “Venezuela lie.” Dominion

highlights that in Fox, the Court held “information … readily available to the public” shows that

241
Id. at 32.
242
Pl. Mot. at 45.
243
Id. at 45-46 (Pl. Mot., Ex. 22).
244
Id. at 46 (Pl. Mot., Ex. 84).

31
the “allegations of Dominion being owned by a company founded in Venezuela to rig elections

for Hugo Chavez is false.” 245

Additionally, Dominion provides testimony from Mr. Ruddy in which he allegedly

acknowledged the falsity of these Statements:

Newsmax’s CEO, Chris Ruddy, also admitted in binding corporate representative
testimony: (1) that “it was inaccurate” to say “that Dominion is owned by
Smartmatic,” (2) that it was “inaccurate” to say that Dominion “[w]as invented by
people working for Hugo Chavez, the Venezuela dictator,” (3) that Dominion “was
not founded in Venezuela and not founded by people that were in line with
Chavez,” and (4) that “the statement ‘Dominion is owned by a company founded
in Venezuela to rig elections for the dictator Hugo Chavez’” is “a false – it’s a false
statement….” 246

4. The “Kickback Lie”

To prove the falsity of the “kickback lie” in Statement L, Dominion offers Mr. Poulos’

sworn testimony stating that Dominion did not “pay kickback[s] to government officials who

used its machines in the 2020 presidential election.” 247

Dominion also maintains that “public elections officials in Pennsylvania, Georgia, and

Arizona … similarly confirmed in depositions that they did not receive kickbacks from

Dominion and had no reason to believe Dominion paid kickbacks to any government official.” 248

5. The “Dallas Lie”

To prove the falsity of the “Dallas lie” in Statement F, Dominion maintains that Mr.

Poulos “confirmed that Dominion machines and software were not used for any election held in

Dallas in 2018.” 249

245
Id. at 48 (citing US Dominion, Inc., 293 A.3d at 1038).
246
Id. at 48-49 (Pl. Mot., Ex. 84 at 112:6-8, 98:7-11, 183:8-10, 184:24-185:6).
247
Id. at 51 (Pl. Mot., Ex. 26 at 895:19-22).
248
Id. (Pl. Mot., Ex. 45).
249
Id. at 53 (Pl. Mot., Ex. 22).

32
Dominion also insists that Newsmax admitted that Dominion did not operate in Texas:

“[Mr. Ruddy] testified: ‘that’s true, that [Dominion machines] … weren’t used in Dallas,

Texas.’” 250

In its Opposition, Newsmax argues:

[T]he gist or “sting” of Byrne’s comments was not that Dominion’s machines were
used in Dallas but that they are vulnerable to hacking. Dominion does not contend
that is false, and it has therefore failed to prove material falsity. Nor could it.
Dominion itself, as well as third parties, have identified serious vulnerabilities in
Dominion’s machines. 251

The Court finds that no genuine issue of material fact exists as to falsity for any

Statement. While the Court must view the record in the light most favorable to Newsmax, the

record does not show a genuine issue of material fact as to falsity for any Statement. Dominion

presents clear and convincing evidence showing: (i) the substance or gist of each Statement is

inaccurate; and (ii) the falsehoods asserted in the Statements are material because they would

likely cause reasonable viewers to think significantly less favorably about Dominion than if the

viewers knew the truth.

In addition to Dominion’s proffered evidence, the Court notes that Newsmax

acknowledged the falsity of the “election fraud lie,” the “algorithm lie,” and the “Venezuela lie”

in the Clarification posted on its website on December 19, 2020:

No evidence has been offered that Dominion or Smartmatic used software or
reprogrammed software that manipulated votes in the 2020 election.

…

No evidence has been offered that Dominion or Smartmatic used software or
reprogrammed software that manipulated votes in the 2020 election.

…

250
Id. (Pl. Mot., Ex. 84 at 132:6-14).
251
Def. Opp’n at 27-28.

33
Smartmatic is a U.S. company and not owned by the Venezuelan government, Hugo
Chavez or any foreign official or entity. 252

Newsmax dedicates little of its argument to the element of falsity, primarily discussing it

in its actual malice arguments. Accordingly, Newsmax fails to meet its rebuttal burden of

showing that an issue of material fact exists as to falsity.

Therefore, the Court GRANTS summary judgment in Dominion’s favor regarding

falsity.

C. DOMINION IS ENTITLED TO SUMMARY JUDGMENT ON THE ELEMENT OF PUBLICATION
FOR STATEMENTS B THROUGH S, BUT NOT STATEMENT A

A statement is “published” when it is communicated orally or in writing and is

understood by some person other than the plaintiff. 253 A statement may be considered published

by the person who “originally published the statement” and by those who “repeat or otherwise

republish the statement.” 254

Colorado statute codifies the publication element of a defamation claim, providing in

relevant part: “No action for libel or slander may be brought or maintained unless the party

charged with such defamation has published, either orally or in writing, the defamatory statement

to a person other than the person making the allegation of libel or slander.” 255

Where, as here, the defamatory statement involves a matter of public concern, the

plaintiff must show: (i) that the publication “concerned the plaintiff;” 256 and (ii) that the

defendant “published or caused to be published” the defamatory statement. 257

252
See Def. Mot., Ex. 131, Newsmax Clarification.
253
Colo. Jury Instr., Civ. 22:7 (2025).
254
Id.
255
COLO. REV. STAT. § 13-25-125.5.
256
Gordon, 99 P.3d at 80.
257
Wilson v. Meyer, 126 P.3d 276, 281 (Colo. App. 2005) (citing Colo. Jury Instr., Civ. 22:2 (2000)). The most
recently updated version of Colo. Jury Instr., Civ. 22:2 (2025) contains the same language.

34
First, the Court finds that there is no genuine issue of material fact as to whether the

Statements “concerned” Dominion. Each Statement refers to Dominion by name.

Second, the Court finds that Newsmax published Statements B through S, but a genuine

issue of material fact exists as to whether Newsmax published Statement A.

1. A Genuine Issue of Material Fact Exists as to Whether Newsmax Published
Statement A

Dominion asserts that Newsmax published Statement A, a Twitter post by Ms. Robinson,

because “Newsmax both could and did exercise control over [Ms.] Robinson’s social media

posts, but chose to do so selectively, only when it deemed it in its own interest to do so.” 258

Dominion contends that Ms. Robinson’s contract with Newsmax “both contemplates pre-

approval of her social media posts, … and requires [Ms.] Robinson to indemnify the company

for the November 10 [2020] tweet, if it was not pre-approved.” 259

Dominion claims that in November 2020, Mr. Kanofsky “urged [Ms.] Robinson to

moderate her Twitter posts about Dominion.” 260 Dominion also asserts that Mr. Jacobson “often

directed Newsmax hosts to take down tweets that the company disapproved of.” 261 Dominion

argues that Newsmax “chose not to exercise its control—both contractual and practical—over

[Ms.] Robinson’s social media posts in this instance, either before or after she posted,” and

quoted Ms. Robinsons testimony “confirming Newsmax neither directed her to take down the

tweet nor reprimanded her for spreading the unfounded lies about Dominion.” 262

Newsmax argues that the Twitter post was not published by Newsmax, but rather by Ms.

Robinson “on her personal account that she operated on her own while serving as a Newsmax

258
See id. at 56.
259
Id. (Pl. Mot., Ex. 222 (referencing §§ 1(c), 10(a), 10(a), 11(a), 13(b), 16)).
260
Id. (Pl. Mot., Ex. 77).
261
Id. (Pl. Mot., Ex. 257).
262
Id. at 56-57 (Pl. Mot., Ex. 89 at 189:11-16).

35
correspondent and continues to operate after leaving Newsmax.” 263 Newsmax also contends that

Ms. Robinson’s independent contractor agreement with Newsmax provided that Ms. Robinson’s

social media “shall remain personal property” of Ms. Robinson, and that she retained “the right

to engage in personal social media activities to express [her] thoughts or ideas.” 264

The Court finds that there is a genuine issue of material fact as to whether Newsmax

published Statement A. Because reasonable jurors could differ on whether Newsmax published

Statement A, there exists a genuine issue of material fact. While Dominion meets its initial

burden, Newsmax offers enough support for its position that Newsmax did not publish, or cause

to be published, the Twitter post. Accordingly, Dominion fails to meet its burden of showing, by

clear and convincing evidence, that there is no genuine issue of material fact as to the element of

publication for Statement A.

Therefore, the Court DENIES summary judgment on the issue of publication as it relates

to Statement A.

2. Newsmax Published Statements B through S

Dominion argues that Newsmax “directly broadcast eighteen out of the nineteen accused

statements,” Statements B through S, “which were also republished to Newsmax’s website,

YouTube channel, Facebook account, and Twitter account.” 265

Newsmax contends that Dominion cannot prove that Newsmax Media, Inc. published any

Statement because “Newsmax Media, Inc., does not broadcast Newsmax TV; Newsmax TV is

owned and operated by Newsmax Broadcasting, LLC. … Newsmax Media, Inc. alerted

Dominion of this fact on the very first page of its answer filed in August 2022.” 266

263
Id. at 78.
264
Def. Opp’n at 21, 65.
265
Pl. Mot. at 55.
266
Def. Mot. at 77-78 (emphasis supplied).

36
Newsmax also asserts that “Newsmax’s daily programming is developed by its hosts and

production teams, not its management.” 267 Newsmax maintains that its executives—Messrs.

Ruddy, Jacobson, and Kanofsky—“viewed only a small fraction of Newsmax’s programming

during this time period; much less did they participate directly in the day-to-day production of

Newsmax’s programming.” 268

Newsmax further argues that the production for “some of the programs, especially the

evening opinion shows, was the responsibility of independent contractors” like Messrs. Salcedo,

Stinchfield, and Kelly. 269 Newsmax maintains that “[Mr.] Ruddy was not the one making the

final decisions over what aired in particular shows or approving others’ decisions. … The closest

[Mr.] Ruddy came to getting involved in the details was sending ‘proposed topics and questions,’

which were sometimes used, and sometimes not.” 270

In its Opposition, Dominion disputes Newsmax’s argument that Newsmax Media, Inc. is

not a proper defendant, stating:

Newsmax Media has repeatedly admitted in this litigation, including to this Court,
that it “operates a television news channel.” … (“Newsmax [defined as ‘Defendant
Newsmax Media, Inc.’] operates a television news channel, the news website
Newsmax.com, news mobile applications for smartphones, various Newsmax
social media accounts, and a YouTube page.”) … (“This coverage was broadcast
across various Newsmax-owned and licensed programs.”). Chris Ruddy himself,
in a sworn affidavit, confirmed that “Newsmax”—again, defined only as defendant
“Newsmax Media, Inc.”—“operates a television news channel that broadcasts
nationwide,” and described the television broadcasts at issue in this case as
“[p]rograms owned by Newsmax.” And in every discovery response in this case,
Newsmax did not distinguish between (and in fact expressly conflated) Newsmax
Media and Newsmax Broadcasting. 271

267
Def. Opp’n at 14.
268
Id. at 15.
269
Id.
270
Id. at 16.
271
Pl. Opp’n at 4 (Pl. Mot., Ex. 245) (emphasis supplied).

37
Dominion also rejects Newsmax’s argument that its executives did not participate in the

publication of the Statements, asserting that the argument is “wrong for multiple … reasons:”

For one, Newsmax ignores that in Colorado … liability attaches to all who
participate in a defamatory publication, and there is no genuine dispute that
Newsmax Media “participated” in each publication. For another, each of the
employees Newsmax tries to wall off at Newsmax Broadcasting reported up to
Ruddy (CEO of Newsmax Media) and acknowledged that Ruddy was their ultimate
boss, making them all agents or employees of Newsmax Media for purposes of
respondeat superior. Finally, Newsmax forgets that Newsmax Media separately
incurs publisher liability for republishing and rebroadcasting the accused
statements on other Newsmax Media platforms, and also that Newsmax is
vicariously liable for the directly sanctioned and controlled actions of its
broadcasting division. 272

In its Reply Brief, Newsmax attaches a new affidavit from Mr. Ruddy asserting that he is

the CEO of Newsmax Broadcasting LLC, stating in relevant part: “My involvement in anything

related to Newsmax TV is in my capacity as CEO of Newsmax Broadcasting, LLC, not as CEO

of Newsmax Media, Inc.” 273 Newsmax also insists, “Time and again in this litigation, Newsmax

has explained that Newsmax Broadcasting, LLC … not Newsmax Media, Inc. … published the

at-issue statements.” 274

Although Newsmax advanced its position that Newsmax is suing the “wrong entity” in a

footnote of its Answer, it was not until Newsmax’s Motion—two and half years later—that it

actively pursued this argument. Thus, Newsmax has consistently represented to the Court that it

participated in the Statements’ publication. For example, the Court relied on the following

assertions in Newsmax’s choice of law briefing: 275

Defendant Newsmax Media, Inc. (“Newsmax”) is a small domestic news
organization that is incorporated in Florida and has its principal place of business
in Boca Raton, FL. 276

272
Id. at 4-5.
273
See Def. Reply Br. at 5.
274
Id. at 3.
275
See Newsmax’s Opening Brief on Choice of Law (D.I. No. 417).
276
Id. at 1 (emphasis added).

38
…

Newsmax operates a television news channel, the news website Newsmax.com,
news mobile applications for smartphones, various Newsmax social media
accounts, and a YouTube page. 277

…

Here, Dominion’s principal place of business is in Colorado and Newsmax’s
challenged publications were published there. 278

…

Newsmax’s at issue material was published in Colorado and Dominion
specifically claims that Newsmax’s reporting harmed Dominion’s business in
Colorado. … Thus, Colorado is the only state both where “the matter complained
of was published” and where Dominion “had its principal place of business at the
time.” 279

…

Newsmax’s CEO, who ‘exercised final editorial authority’ over all programs,
was primarily located in Florida during the Relevant Period. … Thus, Newsmax
completed “acts of communication,” … relevant to this action in Florida…. 280

The Court finds that both Newsmax Media, Inc. and Newsmax Broadcasting, LLC,

participated in publishing Statements B through S by broadcasting those Statements to its

viewers. Newsmax controls what shows are broadcast on its network, and Newsmax does this

through its employees as agents of Newsmax. Thus, regardless of who within Newsmax was

responsible for publication, Newsmax published and republished the Statements to its viewers.

The Court is not “piercing the corporate veil” and finding that Newsmax Media, Inc. and

Newsmax Broadcasting are the same entity; however, throughout this litigation Newsmax has

277
Id. at 3 (emphasis added).
278
Id. at 6 (emphasis added).
279
Id. at 15 (emphasis added).
280
Id. at 16 (emphasis added).

39
blurred the responsibilities of the two entities and represented that one and/or the other was

responsible for publishing the Statements.

Dominion meets its burden of showing, by clear and convincing evidence, that there is no

genuine issue of material fact as to the element of publication for Statements B through S.

Newsmax fails to meet its rebuttal burden of showing that an issue of material fact exists.

Therefore, the Court GRANTS summary judgment in favor of Dominion on the element

of publication for Statements B through S.

D. THE COURT WILL NOT GRANT SUMMARY JUDGMENT ON THE ISSUE OF ACTUAL
MALICE

A statement is published with actual malice if it is made “with actual knowledge that it

was false or with reckless disregard for whether it was true.” 281 “It is rare for there to be

evidence that the speaker knew their statement was false yet published it anyway.” 282 Thus, the

inquiry “typically turns on” whether the publisher made the statement with “reckless

disregard.” 283 “Reckless disregard” exists if the publisher “entertained serious doubts as to the

truth of the statement or acted with a high degree of awareness of its probable falsity.” 284

“Actual malice can, and often must, be proved by circumstantial evidence.” 285 Absent

direct evidence of a defendant’s mental state, a plaintiff can prove actual malice “by presenting

evidence that would permit the inference that the defendant acted with actual malice based on all

the circumstances.” 286 Circumstantial evidence of actual malice may take many forms,

including: (i) “a reporter’s failure to pursue the most obvious available sources of possible

281
Lawson, ¶ 18.
282
Creekside Endodontics, LLC v. Sullivan, 2022 COA 145, ¶ 37 (emphasis in original).
283
Id.
284
Id. ¶ 38 (quoting Fry, ¶ 21).
285
Coomer, ¶ 149.
286
Id. ¶ 151 (emphasis in original) (internal citations omitted).

40
corroboration or refutation;” 287 (ii) “inconsistencies in the source’s account;” 288 (iii) obvious

reasons to doubt the veracity or reliability of the source; 289 (iv) the “inherent improbability of the

claim;” 290 (v) financial motive to lie about the plaintiff; 291 (vi) a departure from journalistic

standards; 292 and (vii) “other credible information contradicting the information.” 293

Failure to investigate or mere negligence on the part of the publisher are “constitutionally

insufficient to show the recklessness that is required for a finding of actual malice.” 294 Also, a

speaker’s “‘failure to corroborate information received from [an otherwise] reliable source’—

which later turns out to be incorrect—does not establish actual malice.” 295

Moreover, a plaintiff cannot show actual malice in the abstract. Actual malice must be

“brought home to the persons in the [] organization having responsibility for the publication.” 296

1. Dominion’s Motion

i. Newsmax executives—Messrs. Ruddy, Jacobson, and Kanofsky—had actual
malice.

a. Mr. Ruddy had actual malice.

Dominion asserts that “[Mr.] Ruddy is Newsmax”—he is “founder, CEO, controlling

shareholder, and—in his own words in a declaration filed in this litigation—the ‘chief editorial

officer’ and ‘ultimate authority editorially’ of Newsmax.” 297 Accordingly, Dominion contends

that Mr. Ruddy’s knowledge or reckless disregard of the truth is alone sufficient to prove

287
Id. ¶ 150 (quoting Kuhn v. Tribune-Republican Publ'g Co., 637 P.2d 315, 319 (Colo. 1981)).
288
Id.
289
See id.; see also St. Amant v. Thompson, 390 U.S. 727, 732 (1968).
290
See id.
291
See Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667-68 (1989).
292
See id.
293
Coomer, ¶ 150.
294
N.Y. Times Co. v. Sullivan, 376 U.S. 254, 287 (1964).
295
Creekside Endodontics, LLC, ¶ 38.
296
Sullivan, 376 U.S. at 287.
297
Pl. Mot. at 1, 80.

41
Newsmax’s actual malice. 298 Dominion argues that there is “no material dispute of fact that Mr.

Ruddy knew or recklessly disregarded the truth about the Dominion lies.” 299

As to “knowledge,” Dominion offers that Mr. Ruddy testified that he “never believed”

any of the assertions about Dominion: “It was my view and the network’s view.” 300 Dominion

also provides that “[Mr.] Ruddy explained in a December 7, 2020, email to the New York Times:

he believed ‘no massive fraud, no conspiracy.’” 301 In addition, Dominion asserts that Mr.

Ruddy’s “contemporaneous communications showed he knew the allegations were not just false,

but crazy, as he privately told friends and colleagues that having [Ms. Powell] on was ‘like the

twilight zone,’ that she was ‘nuts’ and ‘sounded crazed,’ and that ‘[y]ou can’t make this shit

up.’” 302

As to “reckless disregard,” Dominion argues that Mr. Ruddy’s admissions under oath

“leave no doubt” that Mr. Ruddy “entertain[ed] serious doubts as to the truth of the statement or

act[ed] with a high degree of awareness of its probable falsity.” 303 Dominion states:

When asked whether he “had serious doubts that there was a criminal conspiracy
involving voting machines rigging the election,” [Mr.] Ruddy said: “yes,” and “I
had serious doubts is a fair answer.” … He explained: “that’s why I put out the
memo right away, like it didn't seem to me that -- that there was -- there was
evidence of it initially and that -- that we should be very careful about reporting
it, covering it.” … His “serious doubts” thus arose no later than when he put out
the Editorial Position memo on November 12, [2020,] before every accused
broadcast and only two days after the accused tweet. 304

298
See id. at 81.
299
Id. at 81.
300
Id. (Pl. Mot., Ex. 90 at 136:18-138:2) (emphasis supplied).
301
Id. (Pl. Mot., Ex. 246) (emphasis supplied).
302
Id.
303
Id. (quoting Coomer, ¶ 147).
304
Id. at 81-82 (Pl. Mot., Ex. 90 at 151:16-152:14) (emphasis supplied).

42
b. Mr. Jacobson had actual malice.

Dominion asserts that Mr. Jacobson’s actual malice is relevant because Mr. Jacobson was

and remains Newsmax’s “senior vice president for programming” and Chief Content Officer;

thus, Mr. Jacobson had responsibility for “all of the broadcasts underneath [Ruddy],” and that

“[a]part from bookers, everyone on the programming side of Newsmax reported to [Mr.]

Jacobson.” 305 Dominion argues that Mr. Jacobson “knew the statements about Dominion were

false, or at least recklessly disregarded the truth, all along.” 306

Dominion contends that before Mr. Ruddy circulated the Editorial Position email on

November 12, 2020, “[Mr.] Jacobson had drafted his own version, stating that ‘Newsmax is not

suggesting there has been a conspiracy and we do not have proof of voter fraud/election fraud.

When we interview guests we need to be very careful to allow them to share their perspective

but should at all time contextualize as alleged, potential etc.’” 307

c. Mr. Kanofsky had actual malice.

Dominion argues that Mr. Kanofsky’s actual malice is relevant because although he was

not considered an executive of Newsmax during the period surrounding the Election, Mr.

Kanofsky “led Newsmax’s network-wide daily morning editorial planning meeting. … He also

directly managed Newsmax’s reporters, … including, among other people, Emerald

Robinson.” 308

Dominion asserts that Mr. Kanofsky’s communications “make clear that he did not ever

believe the lies about Dominion.” 309 Dominion provides two examples: (i) on November 6,

305
Id. at 82.
306
Id. at 83.
307
Id. (Pl. Mot., Ex. 249) (emphasis supplied).
308
Id. at 84 (Pl. Mot., Exs. 77, 85).
309
Id.

43
2020, Mr. Kanofsky wrote to Mr. Ruddy and Mr. Jacobson “urging them to display race calls

and the national electoral vote map on their website to ‘legitimize’ the race calls;” 310 and (ii) on

November 7, 2020, “in response to a viewer email noting that Newsmax was ‘out of step with

reality’ when it came to accepting election results, and that there was ‘no evidence’ of election

fraud, Mr. Kanofsky wrote to Jacobson: “this is exactly what I am worried about.” 311

Dominion maintains that “[Mr.] Kanofsky was (understandably) frustrated with the

network’s insistence on continuing to broadcast the lies, writing to [Mr.] Jacobson: ‘Simply

giving them a microphone to spew more anti-election rhetoric and advance their claims

without being properly equipped to question the legitimacy or factual accuracy of their

assertions may be fun, but it’s terrible journalism.’” 312

ii. “At least one individual within Newsmax who knew or recklessly disregarded
the truth has or shares responsibility for the publication of each
Statement.” 313

In its Motion, Dominion identifies by name Newsmax personnel allegedly responsible for

each Statement. 314 For all Statements, Dominion asserts that Messrs. Ruddy, Jacobson, and

Kanofsky are responsible Newsmax personnel. 315 Most Statements include the producers and

bookers of the respective Newsmax shows. 316 Some Statements include the hosts and guests. 317

For purposes of this Decision, it is sufficient to state that Dominion argues that certain

individuals within Newsmax either knew the falsity of the accusations about Dominion or

310
Id. (Pl. Mot., Ex. 250).
311
Id. (Pl. Mot., Ex. 168) (emphasis supplied).
312
Id. (Pl. Mot., Ex. 151) (emphasis supplied, but underline provided in original).
313
Id., n.7: “The lists of ‘Responsible Newsmax Personnel’ for each accused statement are non-exclusive.”
314
See generally Pl. Mot. at 85-124; Pl. Opp’n at 71-107.
315
See id.
316
See id.
317
See id.

44
recklessly disregarded the truth. 318 Dominion provides internal communications and deposition

testimony to show the actual malice of these individuals. 319

iii. Circumstantial evidence shows actual malice.

a. Newsmax had a financial motive. 320

Dominion argues that “Fox’s decision to call the election for President Biden provided

Newsmax with a rare opportunity. Personnel within Newsmax widely recognized as much.” 321

Dominion provides the following communications between Newsmax personnel:

• On November 7, 2020, Mr. Jacobson texted [Ms.] Parker: “We are not calling
it. It is a huge opportunity for us as by tomorrow we will be the only outlet
that will not have called it so millions of vireos [sic] will be looking. Viewers.
For an outlet.” 322

• On November 7, 2020, Mr. Jacobson texted Mr. Burke: “Jerry. I think we need
to reinforce our surprise that fox called this election. It’s the big
opportunity.” 323

• On November 8, 2020, Mr. Burke sent an email to other Newsmax producers:
“We know viewers are leaving other channels in droves, and we welcome
them.” 324

• On November 12, 2020, Mr. Ruddy forwarded Mr. Kanofsky a link to an article
titled “Newsmax TV: Trump voters are flocking to a channel that claims Biden
is not president-elect” with the note: “this is great.” 325

• On November 13, 2020, Mr. Burke texted the production staff of American
Agenda an image of a Fox blimp crashing with the caption: “The crashing of
#FoxNews. More and more people are moving to #Newsmax.” 326

318
See id.
319
See id.; see also Background Sections E and F, supra, and Discussion Section D(1)(iii)(a)-(c), infra, to view
relevant internal communications and deposition testimony.
320
See id. at 65.
321
Id.
322
Id. (Pl. Mot., Ex. 224) (emphasis supplied).
323
Id. (Pl. Mot., Ex. 225) (emphasis supplied).
324
Id. (Pl. Mot., Ex. 149) (emphasis supplied).
325
Id. (Pl. Mot., Ex. 214).
326
Id. at 65-66 (Pl. Mot., Ex. 228).

45
Dominion contends that there was a “direct correlation between Newsmax embracing the

Dominion lies—at first slowly, and then extensively—and Newsmax’s ratings climbing higher.

Newsmax’s ratings climbed throughout the defamatory period, with Newsmax’s ratings for the

November 16-19 period … making Newsmax the fourth-most-watched cable channel during that

period.” 327

b. Newsmax’s allegations were “inherently improbable.” 328

Dominion argues that “Newsmax knew the statements it aired about Dominion were false

because—very early on, and before the first defamatory statements—the public record made

abundantly clear that Dominion did not steal the election.” 329

Dominion also asserts that Newsmax received Dominion’s Fact Sheets, which provided

Newsmax with “public evidence demonstrating those charges were false (and inherently

improbable). These communications started on November 12, and continued through the

following weeks and months. Mr. Ruddy himself testified that he likely reviewed Dominion’s

website during this period.” 330

Further, Dominion contends that “Newsmax’s own internal guidance, drafted by [Mr.]

Kanofsky and circulated to all Newsmax hosts and producers, demonstrated why the claims were

inherently implausible.” 331

Finally, Dominion offers that Mr. Ruddy testified that he acknowledged the

implausibility of the claims: “‘[T]he idea that he was gonna switch millions of votes, it does

seem over-the-top ….’ … He further admitted that even at the time, the claim that Dominion

327
Id. at 67-68 (Pl. Mot., Ex. 185).
328
Id. at 68.
329
Id.
330
Id. at 69 (Pl. Mot., Ex. 90 at 123:23- 124:3).
331
Id.

46
flipped millions of votes ‘seemed to be out there’ and that he therefore ‘had serious doubts that

that could ever be true.’” 332 Dominion also provides the following transcript from Mr. Ruddy’s

testimony:

Q: … [Y]ou do agree that the kraken allegations about massive vote rigging
algorithms and conspiracies to flip votes and throw the election, that that is out
there, that is UFO and martians on Mars type of stuff; right?
…
A: The kraken stuff is definitely out in the twilight zone. 333

c. “The sources Newsmax relied on were unreliable, and Newsmax did
nothing to vet them.” 334

Dominion argues that Newsmax personnel “broadly recognized that the purported

‘sources’ for the claims about Dominion were unreliable and unqualified to speak on matters

pertaining to election administration, election technology, or fraud. … Newsmax personnel knew

these proponents of the Dominion lies were not to be believed.” 335

Regarding Ms. Powell’s credibility, Dominion offers various private communications (as

detailed above in Sections E. and F.) where Mr. Ruddy “repeatedly recognized [Ms.] Powell’s

unreliability, even as he kept pushing for her to appear on Newsmax’s broadcasts.” 336 In

addition, Dominion provides the following deposition testimony of Mr. Ruddy:

• When discussing how Ms. Powell never brought forth any evidence, Mr. Ruddy
said: “obviously there is something wrong with her, I don’t know what it is.”337

• Mr. Ruddy said Ms. Powell’s “Kraken” language was “really bizarre” and
“made her lose credibility in [his] eyes.” 338

• Mr. Ruddy testified that Ms. Powell’s anonymous affidavits “raises a red flag
for me” and he “did not personally find them credible.” 339
332
Id. at 70 (Pl. Mot., Ex. 90 at 245:24-246:16, 250:7-18).
333
Id. at 70 (Pl. Mot., Ex. 90 at 291:9-16) (emphasis supplied).
334
Id. at 71.
335
Id.
336
Id. at 72.
337
Id. at 73 (Pl. Mot., Ex. 90 at 167:18-168:17) (emphasis supplied).
338
Id. (Pl. Mot., Ex. 90 at 242:17-243:12) (emphasis supplied).
339
Id. (Pl. Mot., Ex. 90 at 249:13-250:6) (emphasis supplied).

47
Dominion also contends that other Newsmax personnel “echoed the same sentiments”

about Ms. Powell, offering the following communications:

• On November 8, 2020, Mr. Gorka texted Mr. Harbaugh: “[T]hat’s not her
background … [i]f she had evidence where is it…. Her success on Flynn was
backed up by real evidence.” 340

• On November 18, 2020, Mr. Gorka texted: “Trouble is [Ms. Powell’s] out of
her depth on national security issues…. Venezuela. Not her lane.” 341

• On December 4, 2020, Mr. Kanofsky sent an email to Mr. Sargeant: Ms. Powell
“has been routinely accused of advancing especially controversial claims
including Chinese Money, Hugo Chavez, and a litany of accusations
regarding Dominion which have been batted down or (arguably) repudiated.
When is she going to step forward with specific and unambiguous evidence
which stands up to the scrutiny it will be afforded in the court system? Or—
is her contention that she’s already done so? She’s simply got to answer for
this.” 342

Regarding Mr. Giuliani, Dominion provides the following to show that Newsmax knew

that Mr. Giuliani was not credible:

• On October 15, 2020, after an interview with Mr. Giuliani, Mr. Kraisman texted
Mr. Sellers: “[H]ard to keep that one on track. He rambles.” Mr. Sellers
responded: “He’s looney now.” 343

• On November 18, 2020, Mr. Plotnick texted Ms. Hesse: “And Rudy? I dunno
why [R]uddy wants him. I think he’s losing his mind. But we should do what
our boss wants.” 344

• On November 19, 2020, during the Press Conference, Mr. Halperin wrote to
Mr. Bachman: “If there is justice in heaven, Rudy will be indicted by his old
office before sundown.” 345

340
Id. (Pl. Mot., Ex. 206) (emphasis supplied).
341
Id. (Pl. Mot., Ex. 207) (emphasis supplied).
342
Id. (Pl. Mot., Ex. 309) (emphasis supplied).
343
Id. at 74 (Pl. Mot., Ex. 237) (emphasis supplied).
344
Id. (Pl. Mot., Ex. 308) (emphasis supplied).
345
Id. (Pl. Mot., Ex. 106) (emphasis supplied).

48
• Mr. Messer testified that he had conversations with Mr. Jacobson and “others
at the network” in which he “urged caution with having [Rudy Giuliani] on”
air. 346

For Mr. Morris, Dominion argues that he “did nothing to investigate his claims about

Dominion, and he testified that, had anyone from Newsmax asked him whether he’d done any

research, he would have said no.” 347 Dominion also provides the following to show that

Newsmax “knew [Mr.] Morris had a proclivity to promote conspiracy theories and lies”: 348

• On November 13, 2020, Mr. Wasser emailed Mr. Jacobson stating “[t]here is
not a shred of evidence to support that allegation from Dick” regarding
election “fraud.” Yet Newsmax continued to have Mr. Morris on to discuss his
allegations even after that email. 349

• On November 13, 2020, Mr. Sellers texted Mr. Jacobson about an appearance
Mr. Morris had done regarding election fraud allegations, stating, “I think it’s a
good idea not to have Dick Morris on my show anymore…. This is the second
time I’ve had a run in with him—both times where I was trying to maintain the
integrity of our network.” 350

• Mr. Plotnick wrote to Mr. Jacobson that Mr. Morris “spreads conspiracy
theories and rumors” and “is the epitome of fake news.” 351

• Mr. Ruddy testified of Mr. Morris: “I do think that he doesn’t verify things
sometimes and he hears something and he doesn’t check it carefully.” 352

For Mr. Lindell, Dominion contends that Newsmax personnel knew that he was

“unqualified and uncredible on issues of voter fraud,” yet Newsmax “nonetheless invited [Mr.]

Lindell on repeatedly to discuss voting machines.” 353 Dominion offers the following:

• Mr. Burke testified that Mr. Lindell’s work did not qualify him to be a credible
source on whether Dominion machines stole the 2020 election. 354

346
Id. (Pl. Mot., Ex. 81 at 102:3-102:8) (emphasis supplied).
347
Id. at 75 (Pl. Mot., Ex. 82 at 29:21-30:6; 30:7-32:14).
348
Id.
349
Id. (Pl. Mot., Ex. 240) (emphasis supplied).
350
Id. (Pl. Mot., Ex. 241).
351
Id. (Pl. Mot., Ex. 216) (emphasis supplied).
352
Id. (Pl. Mot., Ex. 90 at 403:24-404:10) (emphasis supplied).
353
Id. at 76.
354
Id. (Pl. Mot., Ex. 63 at 263:25-264:13).

49
• “[Mr.] Ruddy implicitly acknowledged that [Mr.] Lindell was patently
unqualified to be a credible source on voting machines by testifying as
corporate representative that he expected Newsmax viewers to ‘realize[] when
he comes on-air, that he’s not an election expert on voting machines but an
expert on pillows.’” 355

• In January 2021, Mr. Plotnick texted Mr. Jacobson: “[Mr.] Lindell supposedly
calling [Mr. R]uddy soon. Says he has ‘huge news.’” Mr. Jacobson responded:
“[H]e’s probably gonna tell him that the spaceship’s finally coming back to
take [h]im away.” 356

For Mr. Byrne, Dominion asserts that he “was known, even among President Trump’s

public supporters, as an uncredible source.” 357 On November 22, 2020, “former Trump advisor

and election denier Steve Bannon texted [Mr.] Ruddy…: ‘Dude: Patrick Byrne is a pathological

liar and psychopath. Accused Hilary Clinton of taking an $18 million cash bribe from the

FBI and Obama that he delivered. And he is on your channel. Clown Show.’” 358

d. “Newsmax departed from journalistic standards.” 359

Dominion contends that Newsmax’s departure from journalistic standards involved “an

abject failure to fact check the claims or to vet the sources, running across virtually every show.

… Newsmax personnel nonetheless widely acknowledged a set of rules that govern their work

and profession.” 360

Dominion asserts that Newsmax witnesses (including Mr. Bachman and Ms. Childers)

testified that journalistic ethics and standards apply to Newsmax generally, apply to Newsmax

hosts specifically, and apply to Newsmax guests specifically. 361

355
Id. (Pl. Mot., Ex. 84 at 172:1-15) (emphasis supplied).
356
Id. (Pl. Mot., Ex. 242) (emphasis supplied).
357
Id.
358
Id. (Pl. Mot., Ex. 243) (emphasis supplied).
359
Id. at 77.
360
Id.
361
Id. (Pl. Mot., Exs. 61, 238, 68, 262).

50
Dominion further maintains that Newsmax witnesses (including Mr. Ruddy, Mr.

Bachman, Mr. Burke, and Ms. Childers) testified that the rules Newsmax should adhere to

include: accuracy; making sure not to spread misinformation; completeness; two-source

attribution; fact-checking and confirming the accuracy of claims before publishing them; using

credible sources; vetting sources; if a guest makes a claim on air, the host will push back and ask

for evidence; not making, repeating, or endorsing false claims on air; not “say[ing] that

allegations are true when they don’t have evidence that they are true;” not “giving air to

unsubstantiated, unproven allegations … without demonstrated evidence that stands up to

scrutiny from both sides of the story;” and correcting misstatements and falsehoods. 362

e. “Newsmax had a stated policy and editorial position of non-endorsement
that was communicated to all relevant people.”

Dominion argues that when reporting on Dominion, Newsmax “was quick to abandon

all” of its principles from its “Ethics and Journalistic Guidelines,” which Dominion asserts was

“circulated to all Newsmax hosts, and even incorporated by reference in hosts’ contracts.” 363

Newsmax’s Ethics and Journalistic Guidelines states in relevant part:

We find inaccuracies, carelessness, bias or distortions unacceptable. … We may
not always find the truth, or the complete truth, but we will not knowingly introduce
false information into material intended for publication or broadcast; … We always
strive to identify all sources of our information, shielding them with anonymity
only when they insist upon it and when they provide vital information … and when
we know the source is knowledgeable and reliable…. 364

Dominion also maintains that “at least from November 12, [2020,] onward, the network’s

own editorial position, which was set by Mr. Ruddy [] and communicated to all relevant editorial

362
Id. at 77-78 (Pl. Mot., Exs. 262, 238, 61, 63, 86, 90, 68, 67, 82, 77).
363
Id. at 79 (Pl. Mot., Ex. 276) (emphasis supplied).
364
Id.

51
staff, recognized that Newsmax had seen no evidence to substantiate the claims and that they

were not sufficiently reliable for Newsmax itself to ‘make’ those claims.” 365

2. Newsmax’s Motion

i. Dominion does not prove actual malice by clear and convincing evidence. 366

Newsmax argues that Dominion fails to meet its burden of proving, by clear and

convincing evidence, that each Statement was published with actual malice by a responsible

Newsmax employee. 367 Newsmax maintains that summary judgment for the publisher is “quite

often appropriate because of the difficulty [of] showing actual malice.” 368 Newsmax

acknowledges that the Court has “expressed reluctance to resolve questions involving ‘state of

mind’ at summary judgment,” but requests that the Court “at a minimum narrow the scope of this

case by granting judgment on the statements where actual malice cannot be ‘brought home’ to

any Newsmax employee.” 369

Newsmax asserts that Dominion cannot “bring home” actual malice to an individual

within Newsmax who was “actually involved” in the publication. 370 According to Newsmax,

Messrs. Ruddy, Jacobson, and Kanofsky were not “actually involved” in approving or publishing

of any of the Statements, nor were they “routinely involved in the day-to-day details of preparing

and producing specific content for Newsmax TV.” 371

Newsmax also contends that “most of those responsible for Newsmax’s programming—

its hosts, reporters, producers, and so on—are Newsmax employees. But not all of them. …

[S]ome of the hosts of Newsmax’s personality-driven news-opinion shows are not employees of

365
Id. at 80.
366
See Def. Mot. at 41, 47.
367
See id. at 41.
368
See id. (quoting St. Surin v. Virgin Islands Daily News, Inc., 21 F.3d 1309, 1318 (3d Cir. 1994)).
369
Id. at 41-42.
370
See id. at 44-45 (citing Page v. Oath Inc., 270 A.3d 833, 850 (Del. 2022)).
371
Def. Mot. at 4-5; see also Def. Opp’n at 43, 47.

52
the network, but independent contractors.” 372 Newsmax argues that Dominion cannot rely on the

states of mind of independent contractors to prove actual malice because “the law is that non-

employees’ mental states may not be imputed to a publisher.” 373

a. Howie Carr

Newsmax argues that Mr. Carr’s state of mind may not be imputed to Newsmax because

Mr. Carr is not a Newsmax employee, but an “employee of the Howie Carr Radio Network.” 374

Newsmax contends that Mr. Carr “comes up with the content” for the show, and “made the

decision” himself to have Ms. Powell on the show, “with no involvement by Newsmax.” 375

Newsmax claims that it has a licensing agreement to “simulcast” The Howie Carr Show on

Newsmax, but that the show is produced “without the involvement of Newsmax employees.” 376

b. Heather Childers, Benny Johnson, Greg Kelly, Emerald Robinson, Chris
Salcedo, and Grant Stinchfield

Newsmax argues that Dominion may not rely on the mental states of Ms. Childers, Mr.

Johnson, Mr. Kelly, Ms. Robinson, Mr. Salcedo, or Mr. Stinchfield to prove actual malice

because they were not Newsmax employees, but independent contractors. 377

Ms. Childers: Newsmax contends that Ms. Childers was not a Newsmax employee

because she had “never signed a contract working full-time with [Newsmax]. … She did spots

for Newsmax on an as-needed basis and received ‘a day rate or an hourly rate.’” 378

Mr. Johnson: Newsmax argues that Mr. Johnson was not a Newsmax employee and had

“no direct contact with Newsmax.” 379 Rather, Newsmax maintains that Mr. Johnson “produced

372
Def. Mot. at 48.
373
Id.
374
Id. (Def. Mot., Ex. 166).
375
Id.
376
Id. at 49 (Def. Mot., Ex. 80).
377
See id.
378
Id. at 50 (Def. Mot., Ex. 169).
379
Id.

53
and hosted [The Benny Report] pursuant to an agreement between Newsmax and Benny LLC,

which provided that the latter would ‘supply…the services’ of Mr. Johnson to host a weekly

show, ‘choose the show topic,’ and choose the guests.” 380 Newsmax offers that the agreement

provided that “Benny LLC and [Mr.] Johnson are not Newsmax employees ‘for any purpose’

and ‘are and will remain independent contractors.’” 381

Mr. Kelly: Newsmax claims that “[Mr.] Kelly’s contract with Newsmax provides that he

is an independent contractor and not an employee of the company. … [Mr. Kelly] used a

personal email address. … [Mr.] Kelly also took on other work outside of Newsmax, including

hosting a daily radio program on WABC.” 382

Ms. Robinson: Newsmax contends that Ms. Robinson was an “independent contractor,

pursuant to her contract with Newsmax.” 383 Newsmax states that the contract provides: “[Ms.

Robinson’s] personal social media accounts shall remain personal property of [Ms. Robinson]

and [Ms. Robinson] has the right to engage in personal social media activities to express [Ms.

Robinson]’s thoughts or ideas” on her own time and using her own social media accounts. 384

Mr. Salcedo: Newsmax asserts that Mr. Salcedo’s contract with Newsmax “provided that

he was an independent contractor. … [Mr.] Salcedo hosted the Chris Salcedo Show from his

home studio in Dallas, Texas, using his own equipment. … [Mr.] Salcedo also does not perform

work exclusively for Newsmax; among other things, he hosts a radio program … and produces a

podcast.” 385

380
Id. (Def. Mot., Ex. 81).
381
Id. (Def. Mot., Exs. 81, 205).
382
Id. (Def. Mot., Exs. 82, 181, 129).
383
Id. at 51 (Def. Mot., Ex. 86).
384
Id.
385
Id. (Def. Mot., Exs. 84, 196).

54
Mr. Stinchfield: Newsmax states that Mr. Stinchfield’s contract with Newsmax

“identified him as an ‘independent contractor’ and not an ‘employee’ for any purpose.” 386

Newsmax maintains that Mr. Stinchfield hosted the show from his home in Dallas, Texas, using

his own equipment. 387

c. Newsmax Guests

Newsmax argues that Newsmax cannot be liable for “guests’ live, on-air claims of which

Newsmax employees had no foreknowledge.” 388 “Absent knowledge that a guest intended to

make a particular claim live on the air, a Newsmax employee could not possibly have entertained

serious doubts as to its truth and so bears no fault for its publication.” 389 Accordingly, Newsmax

asserts that guests’ mental states cannot be imputed to Newsmax, including guests Mr. Morris,

Mr. diGenova, Mr. Byrne, Ms. Powell, Mr. Ramsland, and Mr. Lindell. 390

Newsmax asserts that other jurisdictions recognize that media platforms are not liable for

live on-air statements of guests. 391 In Adams v. Frontier Broadcasting Co., the Supreme Court

of Wyoming found that “a businessman accused of dishonesty by a talk-radio caller could not

establish the radio station’s actual malice because it had no foreknowledge of the caller’s

remarks and therefore could not have ‘in fact entertained serious doubts with respect to [their]

truth.’” 392 In Brecht v. Fisher Communications, Inc., a Washington appellate court found that

the “‘the lack of opportunity’ for the radio station’s employees ‘to evaluate the [callers’

statements] prior to publication, or to form some conclusion as to the truth or falsity of those

statements,’ precluded the plaintiff ‘from making the factual showing necessary to demonstrate

386
Id. (Def. Mot., Ex. 83).
387
See id. (Def. Mot., Ex. 199).
388
Def. Mot. at 45.
389
Id.
390
Id. at 48.
391
Id. at 46.
392
Id. (citing Adams v. Frontier Broadcasting Co., 555 P.2d 556, 564 (Wyo. 1976)).

55
actual malice.’” 393 In Weber v. Woods, an Illinois appellate court “grant[ed] summary judgment

to ABC because the speaker of the at-issue words ‘was merely a participant in a television talk

show.’” 394 In Pacella v. Milford Radio Corporation, a Massachusetts appellate court “rejected

liability in similar circumstances, explaining that it was ‘one thing to require a newspaper to

check the accuracy of an interview,’ but quite ‘another matter to hold a TV newsperson

responsible for the spontaneous live utterance of an interviewee.’” 395

ii. Dominion cannot prove actual malice respecting the individual statements.

In its Motion and Opposition, Newsmax goes through each Statement and argues that

Dominion cannot prove actual malice of the alleged responsible Newsmax personnel. 396

Newsmax also dedicated a significant amount of time of its oral argument reiterating its position.

For purposes of this Decision, it is sufficient to state that Newsmax’s argument is that

Dominion provides no evidence showing that any Newsmax personnel knew or seriously

doubted the truth of the comments made about Dominion. 397 To the contrary, Newsmax

provides the following evidence to show that Newsmax personnel believed the comments made

about Dominion: 398 (i) the Whistleblower Affidavit; (ii) the Ramsland Report; (iii) a letter signed

by Senators Klobuchar and Warren which named Dominion and expressed concern about

“secretive and ‘trouble-plagued companies’” that left “voting systems across the country ‘prone

to security problems;’” 399 (iv) U.S. District Judge Amy Totenberg’s decision “expressing grave

393
Id. (citing Brecht v. Fisher Communications, Inc., 2011 WL 1120506, at *6 (Wash. Ct. App. Mar. 28, 2011)).
394
Id. (citing Weber v. Woods, 334 N.E.2d 857, 863 (Ill. App. 1st Dist. 1975)).
395
Id. at 47 (citing Pacella v. Milford Radio Corporation, 462 N.E.2d 355, 360 (1984)).
396
See generally Def. Mot. at 51-76; Def. Opp’n at 65-97.
397
Id.
398
This list is non-exhaustive and only includes the main sources that Newsmax cites throughout its Motion and
Opposition.
399
Def. Mot. at 54 (Def. Mot., Exs. 88 and 216).

56
concerns about the security risks of Dominion’s voting machines;” 400 and (v) “Texas’s refusal to

certify Dominion machines.” 401

3. Dominion’s Opposition

i. Newsmax misstates Dominion’s burden of proof. 402

Dominion opposes Newsmax’s position that “Dominion must ‘prove’ by clear and

convincing evidence at summary judgment that Newsmax harbored actual malice….” 403 Rather,

Dominion contends that “the standard governing summary judgment is a procedural matter

governed by Delaware law,” 404 and in Delaware, the clear and convincing burden does not apply

at summary judgment, stating:

[T]he Court “take[s] the substantive evidentiary standard into consideration” by
asking “whether any rational finder of fact could find, on the record presented to
the Court…on summary judgment viewed in the light most favorable to the non-
moving party, that the substantive evidentiary burden had been satisfied.” … “The
test is not whether the…plaintiff will ultimately prevail.” 405

ii. “Executives and producers responsible for the defamatory broadcasts
possessed actual malice.” 406

Dominion argues that “none of Newsmax’s arguments about whose state of mind matters

for purposes of the actual malice inquiry applies to CEO [Mr.] Ruddy,” and that “[Mr.] Ruddy’s

actual malice alone is sufficient” to grant Dominion’s Motion on actual malice. 407 Dominion

also offers that in the choice of law proceedings in this case, “[Mr.] Ruddy submitted a sworn

affidavit declaring himself ‘responsible for the daily operations and management,’ ‘the chief

400
Id. at 64 (Def. Mot., Ex. 111).
401
Id. at 65 (Def. Mot., Ex. 123).
402
See Pl. Opp’n at 31.
403
Id.
404
Id. at n.5 (citing Kier Constr., Ltd. v. Raytheon Co., 2005 WL 628498, *4 n.15 (Del. Ch. Mar. 10, 2005)).
405
Id. at 31 (quoting Cerberus Int’l, Ltd. v. Apollo Mgmt., L.P., 794 A.2d 1141, 1148-50 (Del. 2002) (emphasis
supplied)).
406
Id.
407
Id. at 33-34.

57
editorial officer,’ in charge of ‘setting the company’s editorial policies and strategies,’ ‘the

ultimate authority editorially within the company,’ and the ‘exercise[r]’ of ‘final editorial

authority’ for all of the accused content.” 408

iii. “Dominion may rely on Newsmax’s on-air talent’s actual malice.” 409

Dominion opposes Newsmax’s argument that actual malice must be “brought home” to a

Newsmax employee, rather than an independent contractor: “Under [Sullivan,] actual malice

may not be attributed outside respondeat superior. … Actual malice may thus be attributed to

any Newsmax employee as well as any so-called ‘independent contractor’ who, notwithstanding

their purported contractor status, falls within the bounds of respondeat superior.” 410

Dominion argues that “the title ascribed to an individual by their contract does not

govern.” 411 Rather, Dominion states that respondeat superior exists where the “employer

controlled or had the right to control the actions of its purported employee.… The central

element in an employer-employee relationship is the right of the employer to control the details

of performance of the employee’s duties.” 412

Mr. Salcedo and Mr. Stinchfield: Dominion argues that the “mere fact that [Mr.] Salcedo

and [Mr.] Stinchfield’s contracts referred to them as ‘contractors’ is irrelevant. Abundant record

testimony shows that the two hosts, whose shows were fully produced by Newsmax personnel,

reported to [Mr.] Jacobson and [Mr.] Ruddy as regular employees and their job performance was

controlled by Newsmax.” 413

408
Id. at 34 (Pl. Mot., Ex. 245).
409
Id. at 34.
410
Id. at 35 (quoting McFarlane v. Esquire Mag., 74 F.3d 1296, 1303 (D.C. Cir. 1996)).
411
Id. at 36.
412
Id. (quoting Veintimilla v. Dobyanski, 975 P.2d 1122, 1123 (Colo. App. 1997)).
413
Id. at 36.

58
Mr. Kelly and Ms. Robinson: Dominion contends that Newsmax incorrectly argues that

Mr. Kelly and Ms. Robinson’s contracts classify them as independent contractors; rather, each

contract “repeatedly describes them as employees. … the term ‘contractor’ appears nowhere in

either employment contract.” 414

Ms. Childers: Dominion contends that none of Newsmax’s arguments control whether

Ms. Childers was an employee or otherwise subject to respondeat superior. 415 Dominion asserts

that the following facts show that Ms. Childers was an employee of Newsmax:

[Ms.] Childers admitted that she “report[ed] to” Elliot Jacobson, … “interacted with
… [him] on a daily basis,” … and “understood that Christopher Ruddy was the
ultimate boss. … She admitted that if Jacobson or Ruddy told her to cover a certain
topic, she would, … that it was not her role to determine what topics she should
avoid and that instead the executive producer would make that decision, … and that
she would have “followed whatever instructions came down through…the
executive producer.” … What [Ms.] Childers said on air, she admitted, was
generally pre-scripted such that she would read from teleprompters. 416

iv. Newsmax can be held liable for its guests’ statements.

Dominion opposes Newsmax’s argument that it cannot be held liable guests’ statements

and distinguishes the four out-of-jurisdiction cases that Newsmax cites. Dominion first contends

that Newsmax mischaracterizes Weber:

What Newsmax quotes is the court’s recitation of ABC’s argument that a guest
cannot be considered an “agent” of the station[.] … But the court did not wholesale
adopt ABC’s argument, holding only that the plaintiff offered only “‘bare
allegation[s] of malice’” and that “investigatory failures alone are not sufficient to
establish reckless disregard.” 417

Dominion then asserts that Pacella, Adams, and Brecht are not applicable here because

all three cases concerned “defamatory statements made by anonymous callers on talk-radio

414
Id. at 37 (Def. Mot., Exs. 82, 86).
415
See id. at 40.
416
Id.
417
Id. at 41 (emphasis supplied).

59
shows, which the court in Pacella recognized is a context entirely divorced from a news

program: ‘the role of a talk-show host differs from that of a reporter or newscaster. His function

is not to discover the news but to moderate the public debate.’” 418

4. Newsmax’s Opposition

i. Dominion fails to prove that a Newsmax employee had actual malice. 419

Newsmax opposes Dominion’s “attempt to pin actual malice” for all the Statements on

Newsmax executives Messrs. Ruddy, Jacobson, and Kanofsky. 420 Newsmax maintains that

“authority is not participation.” 421

As for Mr. Ruddy, Newsmax asserts that Dominion presents no evidence that Mr. Ruddy

was “actually involved” in approving or publishing any of the Statements. 422 “Whatever [Mr.]

Ruddy’s power, the question is whether he exercised it to approve publication of each of the

challenged statements, and Dominion presents no evidence that he did.” 423 Newsmax also

contends that Dominion does not identify any evidence showing that Mr. Ruddy was aware of, or

approved, any Statement before it aired. 424 Further, Newsmax maintains that Mr. Ruddy’s

“serious doubts” language that Dominion relies on does not apply to all the Statements because it

“addressed ‘any conspiracy theory involving the election,’ not any particular claim involving

Dominion.” 425

As for Mr. Jacobson and Mr. Kanofsky, Newsmax argues that Dominion does not present

any evidence that they participated in the publication of any Statement. 426

418
Id. at 42.
419
See id. at 45.
420
Def. Opp’n at 43.
421
Id. at 49.
422
See id. at 47.
423
Id.
424
See id.
425
Id. at 49.
426
See id. at 49-50.

60
ii. Dominion’s reliance on Mr. Ruddy’s Editorial Position email is misplaced. 427

Newsmax asserts that Mr. Ruddy’s November 12, 2020, email does not mention

Dominion; rather, “the email states that Newsmax ‘should not censor allegations made by the

President or his lawyers or surrogates’ but will instead ‘report information and allow Americans

to decide,’ … which is exactly what Newsmax did.” 428

Newsmax opposes Dominion’s reliance on the portion of the email which stated

“Newsmax does not have evidence of widespread voter fraud” or “evidence of a voter fraud

conspiracy”—Newsmax argues that these “general statements” “could not and did not address

the truth or falsity of claims that arose subsequently, which (as Dominion admits, [][]) includes

every single broadcast it challenges.” 429

Newsmax also maintains that “Dominion is wrong to assume that Ruddy’s email reached

all those responsible for publication of the challenged statements.” 430 The email lists “28

recipients, … but even a cursory comparison reveals that this list excludes persons Dominion

identifies as ‘Responsible Newsmax Personnel,’” such as [Mr. Cella], [Mr. diGenova], and [Mr.

Morris] …. The list also excludes the guests responsible for most of the statements Dominion

challenges.” 431

iii. Dominion’s proffered circumstantial evidence does not prove actual malice.

First, Newsmax argues that “Dominion’s story about Newsmax’s supposed ‘financial

motive’ to defame Dominion is pure fiction….” 432 Newsmax asserts Dominion misunderstands

Newsmax’s viewership: “The majority are not Republicans. About 25.8% of Monday-Sunday

427
See id. at 50.
428
Id.
429
Id. at 51.
430
Id.
431
Id.
432
Id. at 52.

61
viewers identify as Democratic, 37.1% Republican, and 37.1% independent/unaffiliated.” 433

Accordingly, Newsmax argues that it had “no motive to alienate the 63 percent of its viewers

who were not Republicans and its advertisers.” 434 Newsmax also contends that Dominion fails

to provide any evidence indicating that any of the “Responsible Newsmax Personnel” shared in

any financial motive to defame Dominion. 435

Second, Newsmax asserts that Dominion’s claim that the Statements were “‘inherently

improbable’ is a blatant attempt to wield its falsity evidence against persons who were not aware

of it.” 436 Newsmax continues:

That includes “updates” Dominion posted to its own website and other materials it
contends “debunked provably false claims and confirmed there was no evidence of
widespread electoral fraud in the 2020 Presidential Election.” If Dominion seeks
to rely on these materials to prove that an individual seriously doubted the truth of
some claim, then it must prove that individual reviewed them before publishing.437

Newsmax also argues that it is not “inherently improbable” for Dominion to “steal the

election” because:

Venezuela’s leaders have almost certainly fixed elections, it’s far from outlandish
to suppose they manipulated voting machines and software to do so, and the
supplier of those machines and software could be purchased by a competitor. …
Computer systems and software can be and are used for ill as well as good. The
abuse of computer systems through hacking and other unauthorized access is a
pervasive fact of modern life. 438

Further, Newsmax argues that it is not inherently improbable that Dominion was founded in

Venezuela: “Electronics giant Huawei was founded in Communist China, and Volkswagen’s

disreputable origins are well-known.” 439 Finally, Newsmax offers that it is not inherently

433
Id. at 12.
434
Id. at 52.
435
See id.
436
Id. at 53.
437
Id.
438
Id. at 54.
439
Id.

62
improbable that Dominion paid kickbacks to officials: “Kickbacks and bribes by government

contractors are hardly unusual.” 440

Third, Newsmax opposes Dominion’s argument that Newsmax relied on unreliable

sources. 441 Newsmax first asserts that Mr. Morris and Mr. Lindell were not “sources,” but talk-

show commentators discussing the news. 442

Newsmax then contends that Ms. Powell and Mr. Giuliani were “sources, appearing live

or in video clips to provide information, rather than just commentary.” 443 Newsmax maintains

that they both were viewed as credible at the time because they were affiliated with the

President. 444

Newsmax also argues that “Dominion identifies no reasons that anyone would have had

to doubt [Byrne’s] credibility in advance of his sole appearance at issue here. … Dominion cites

only a text message disparaging [Mr.] Byrne that [Mr.] Ruddy received five days after [Mr.]

Byrne’s appearance.” 445

Fourth, Newsmax argues that “Dominion has no factual basis to assert that Newsmax

departed from journalistic standards applicable to its broadcasts,” stating: “Legally, it is enough

to observe that Newsmax repeatedly sought comment from Dominion—beginning on November

12, before the first challenged broadcast, and repeatedly thereafter—and from many other

sources as the story developed.” 446

440
Id. at 54-55.
441
See id. at 55.
442
See id.
443
Id.
444
Id.
445
Id. at 56.
446
Id. at 57.

63
Newsmax continues, “Similarly misplaced is Dominion’s heavy reliance on Newsmax’s

supposed failure to fact-check….” 447 Newsmax contends that it sufficiently fact-checked guests

by consulting and airing information “from a variety of sources with different points of view,” as

well as “asking probing questions of guests making factual claims.” 448 “Dominion’s position

that Newsmax had an obligation to fact check its guests’ live, on-air statements after they were

broadcast is at odds with the actual malice standard, which turns on an individual’s mental state

at the time of publication, not after.” 449

5. Dominion’s Reply Brief

First, Dominion acknowledges that plaintiffs rarely prevail at summary judgment on the

issue of actual malice; however, Dominion argues that this case is rare because:

[Mr.] Ruddy admitted his serious doubts repeatedly in his deposition, to public
news outlets during the same time period, to friends and colleagues in
contemporaneous correspondence, and in the Editorial Position he instituted
specifically instructing Newsmax TV personnel to avoid endorsing the claims
because there was no supporting evidence. 450

Second, Dominion opposes Newsmax’s attempt to “downplay” Mr. Ruddy’s

responsibility for the Statements, stating:

[Mr.] Ruddy’s role went far beyond directing high-level editorial policies. He
exercised an exceptionally high degree of control over the content on Newsmax
TV, including, among other things, “final say on which guests would appear,”
“editorial messages,” “what can and cannot be said,” and whether to “steer clear of
a particular topic.” 451

447
Id.
448
Id.
449
Id. (emphasis supplied).
450
Pl. Reply Br. at 50.
451
Id. at 51.

64
Third, Dominion asserts that the Editorial Position email confirms that Newsmax had

actual malice because although it does not specifically mention Dominion, “the greater (voter

fraud conspiracies) includes the lesser (the specific voter fraud conspiracy about Dominion).” 452

6. Newsmax’s Reply Brief

First, Newsmax contends that Dominion “completely ignores that Newsmax sent at least

10 written requests, along with many more phone calls, inviting Dominion to respond on the

air. … That alone should preclude a finding of actual malice as a matter of law.” 453

Second, Newsmax offers Mr. Ruddy’s testimony stating that he was “not that involved in

the day-to-day programming and dealing with the guests.” 454 Newsmax further states that

Dominion’s “so-called evidence” of Mr. Ruddy’s involvement is “damning—for Dominion.” 455

Newsmax separates Dominion’s evidence into five categories, none of which proves that Mr.

Ruddy was “actually involved” in approving any of the Statements:

(1) evidence that post-dates the at-issue statements, (2) evidence about [Mr.]
Ruddy’s authority to be involved at his discretion, (3) evidence of [Mr.] Ruddy’s
involvement in unrelated programming, (4) evidence of [Mr.] Ruddy’s general
involvement in unrelated programming, and (5) evidence from late November that
[Mr.] Ruddy wanted to book Sidney Powell. 456

Third, Newsmax argues that respondeat superior “does not allow the imputation of actual

malice from an independent contractor to a principal, only from an employee to an employer.” 457

7. The Court Will Not Grant Summary Judgment to Either Party as to Actual Malice

The Court holds that no party is entitled to judgment on the element of actual malice.

The Court has detailed the legal and factual arguments of Dominion and Newsmax to

452
Id. at 56.
453
Def. Reply Br. at 10.
454
Id. at 12 (Def. Mot., Ex. 278 at 427:16- 18).
455
Id. at 13.
456
Id. (emphasis supplied).
457
Id. at 25 (referencing McFarlane, 74 F.3d at 1302-03 (D.C. Cir. 1996)).

65
demonstrate that there are multiple genuine issues of material facts that must be determined by a

jury. For example, both parties present contradictory evidence regarding the relevance of

Messrs. Ruddy, Jacobson, and Kanofsky’s states of mind as it relates to Newsmax. Also, both

parties offer differing evidence concerning whether certain Newsmax personnel are employees

or independent contractors, and accordingly whether their states of mind may be attributed to

Newsmax under respondeat superior. The Court may not “weigh the evidence to determine who

may have been responsible for publication and if such people acted with actual malice – these are

genuine issues of material fact and therefore must be determined by a jury.” 458

A main point of contention is Dominion’s position that Mr. Ruddy “admitted his serious

doubts” to satisfy Newsmax’s actual malice. The Court finds that Newsmax offers sufficient

evidence to show that Mr. Ruddy did not admit serious doubts as to Dominion specifically.

Because reasonable jurors could differ on whether Mr. Ruddy admitted that he had serious

doubts that Dominion committed election fraud, a genuine issue of material fact exists.

Also, the Court will not adopt Newsmax’s proffered rule that media platforms are not

responsible for its guests’ statements. This is a fact-intensive inquiry that a jury must address.

Finally, the Court will clarify the burden of proof for actual malice in this case. In

Cerberus Intern Ltd. v. Apollo Management LP, the Supreme Court of Delaware addressed a

similar issue and stated: “The question is whether any rational finder of fact could find, on the

record presented to the Court of Chancery on summary judgment viewed in the light most

favorable to the non-moving party, that the substantive evidentiary burden had been satisfied.” 459

In this case, the Court is applying Delaware’s summary judgment procedural rules while

applying the substantive evidentiary burden under Colorado law: If a statement concerns a matter

458
US Dominion, Inc., 293 A.3d at 1052.
459
Cerberus, 794 A.2d at 1150 (emphasis in original).

66
of public concern, the plaintiff is subject to heightened standards, including proving actual

malice by clear and convincing evidence. 460 In other words, the Court is not conflating

Delaware procedural law with Colorado substantive law—both operate simultaneously.

Accordingly, the Court DENIES summary judgment regarding actual malice. The Court

finds that genuine issues of material facts exist, and no party is entitled to judgment as a matter

of law.

E. DOMINION IS ENTITLED TO SUMMARY JUDGMENT CONCERNING TWO OF NEWSMAX’S
ASSERTED DEFENSES: (I) THE FAIR REPORT PRIVILEGE, AND (II) THE INCREMENTAL
HARM DOCTRINE

1. The Fair Report Privilege Does Not Protect Any Statement

The fair report privilege “protects media reports of defamatory statements made in []

public proceedings.” 461 The privilege attaches to “reports of in-court proceedings … if they are

fair and substantially correct, or are substantially accurate accounts of what took place.” 462

Reports on such proceedings are privileged “even if the reporter of the defamatory statements

believes or knows them to be false.” 463

Colorado law places two relevant limitations on the fair report privilege. First, the

privilege only applies to “ongoing judicial … proceedings.” 464 A proceeding is not ongoing until

“some official action has been taken by the officer or body whose proceedings are being

460
L.S.S., ¶ 43: “The rule we espouse is also consistent with Colorado cases applying the clear and convincing
evidence standard at the summary judgment stage.”
461
Wilson, 126 P.3d at 280 (noting the privilege is based on the idea that “[t]he public properly relies on news media
to report actions that affect the public interest, and news outlets will be willing to make such reports only if they will
be free from liability, provided that their reports are fair and accurate.”).
462
Tonnessen v. Denver Pub. Co., 5 P.3d 959, 964 (Colo. App. 2000); see Wilson, 126 P.3d at 280 (“A reporter or
publisher must be allowed to convey statements that members of the public would have heard had they attended the
public proceeding.”); Meeker v. Post Printing & Pub. Co., 55 Colo. 355, 357 (1913) (noting the fair report privilege
also applies to reports on “affidavits filed in a civil suit[.]”).
463
Tonnessen, 5 P.3d at 964 (internal citations omitted).
464
Salem Media, ¶ 95; see Switzer v. Anthony, 71 Colo. 291, 295 (1922) (“The publication of a legal proceeding is
qualifiedly privileged, but not until it has gone into court and thereby become public.”).

67
reported.” 465 “Fil[ing] [a] complaint alone” is insufficient. 466 Second, the allegedly protected

statement must not go “‘beyond merely reporting’ on th[e] suits.” 467 As such, a report is not

protected if it “assert[s], as a matter of fact, that [the underlying allegations are] true.” 468

Dominion argues that it is entitled to summary judgment on Newsmax’s fair report

defense because no Statement “was a report ‘of an official proceeding,’ let alone a fair and

accurate report of a proceeding in which some official action had been taken.” 469

Newsmax rejects Dominion’s argument and maintains that the fair report defense applies

to two distinct categories: 470 (i) Statements B, C, D, E, F, G, H, I, J, and L “are privileged as fair

and accurate reports” of a document that Newsmax refers to as the “Whistleblower Affidavit;” 471

and (ii) Statements Q and R are protected “because they fairly report” the Ramsland Report. 472

465
Quigley v. Rosenthal, 327 F.3d 1044, 1062 (10th Cir. 2003).
466
Salem Media, ¶ 97 (“Therefore, publication ‘of the contents of preliminary pleadings such as a complaint or
petition, before any judicial action has been taken is not within the [fair report doctrine].’” (quoting Quigley, 327
F.3d at 1062)).
467
Id. ¶ 95 (quoting Quigley, 327 F.3d at 1062).
468
Quigley, 327 F.3d at 1062; see Republican Publ’g Co. v. Conroy, 38 P. 423, 424 (Colo. App. 1894) (holding the
fair report privilege did not apply because the publisher “proceeded upon his own responsibility to brand the
plaintiff with an opprobrious epithet, and to assert him guilty of the most disgraceful and infamous of offenses. If
the statements were false, the mere fact that the defendant believed them to be true does not justify their
publication[.]”).
469
Pl. Mot. at 129-30. Dominion notes that Colorado law “‘precludes a defamation defendant from invoking the
judicial proceedings privilege on the basis of a filed complaint alone.’” Id. at 129-30 (quoting Salem Media, ¶ 97).
470
Newsmax does not claim that the fair report privilege applies to all Statements. There is no dispute that
Statements A, H, K, M, N, O, P, and S are not protected by the privilege. See Def. Opp’n at 34-42. Also, Newsmax
technically stylizes the Statements into three categories: (1) “Statements B, C, D, E, F, G, and H: Early Reports on
the Whistleblower Affidavit;” (2) Statements I, J, and L: Post-Filing Reports on the Whistleblower Affidavit;” and
(3) “Statements Q and R: Reports on the Ramsland Report[.]” Id. at 35-42.
471
See Def. Mot. at 14, 22, 80. The “Whistleblower Affidavit” allegedly contains statements from an anonymous
source that “‘Dominion and Smartmatic did business together,’ that ‘Smartmatic software is in the DNA of every
vote tabulating company’s software and system,’ including Dominion’s software, and that what happened in the
2020 election was ‘eerily reminiscent of what happened with Smartmatic software electronically changing votes in
the 2013 presidential election in Venezuela.’” Id.
472
Def. Opp’n at 41-42.

68
i. The Whistleblower Affidavit

Newsmax claims that Statements B, C, D, E, F, G, H, I, J, and L are fair reports of the

Whistleblower Affidavit. 473

Dominion argues that under Colorado’s fair report privilege law, the Statements are not

protected for two reasons. 474 First, “[t]he ‘early reports’ … are not fair reports” because the

Whistleblower Affidavit “had not been filed in any proceeding at the time[.]’” 475 Second, “post-

filing” of the Whistleblower Affidavit, “Newsmax’s broadcasts were neither fair nor accurate

reports of the [Whistleblower] Affidavit’s contents.” 476

An affidavit is not part of an ongoing proceeding until it is filed in court.477 The

Whistleblower Affidavit was first filed in Wood v. Raffensperger on November 17, 2020. 478

Statements B, C, D, E, F, G, and H were made before November 17, 2020. 479

Accordingly, these Statements were not reporting on any ongoing proceeding and are therefore

not protected by the fair report privilege. 480

473
See id. at 35-41; Def. Mot., Ex. 89.
474
Pl. Reply Br. at 28-41.
475
Id. at 30-32. Dominion rejects Newsmax’s theory that “the Affidavit itself is privileged because it reports on the
official actions of a government. Id. at 32-36 (citing RESTATEMENT (SECOND) OF TORTS § 611 cmt. d (1977)
(describing the fair report privilege as protecting “the report of any official proceeding, or any action taken by any
officers or agency of the government of the United States, or of any State or of any of its subdivisions.” (emphasis
added)).
476
Id. at 37-38.
477
See Salem Media, ¶ 95 (holding that an affidavit cannot support the fair report privilege until it is part of an
ongoing judicial proceeding).
478
See Def. Mot., Exs. 89, 235, 236; see also Wood v. Raffensperger, No. 20-cv-4651 (N.D. Ga.).
479
See Def. Opp’n at 35-39 (classifying those Statements as “early reports” of the Whistleblower Affidavit);
Compl., Exs. 12-18.
480
Contrary to Newsmax’s assertion, no facts support the argument that the Whistleblower was part of an ongoing
proceeding in a foreign jurisdiction, namely Venezuela, when the challenged statements were made. See Pl. Opp’n
at 34-35.

69
Statements I, J, and L were all made after November 17, 2020. 481 These Statements,

however, are still unprotected because they go beyond merely reporting on the Whistleblower

Affidavit—they affirmatively represented its truth. 482

Therefore, the Court concludes that none of the Statements allegedly reporting on the

Whistleblower Affidavit are protected by the fair report privilege.

ii. The Ramsland Report

Newsmax argues that Statements Q and R are protected “because they fairly report” on

the Ramsland Report. 483 There is no dispute that Statements Q and R were made after the

Ramsland Report became part of an ongoing judicial proceeding. 484 Rather, Dominion contends

that the fair report privilege does not apply because Statements Q and R exceeded the Ramsland

Report’s claims “and falsely stated those claims as fact.” 485

The Court finds that fair report privilege does not apply to Statement R because Mr.

Kelly repeatedly suggested that the contents of the Ramsland Report were true. 486

Statement Q does not explicitly identify the Ramsland Report; rather, it references a

“two-week long forensic audit” “in one county in Michigan.” 487 Mr. Morris describes that report

481
See Compl., Exs. 19-20 (Statement I made on November 19, 2020), Ex. 21 (Statement J made on November 19,
2020), Ex. 23 (Statement L made on November 21, 2020). Though these Statements were made after the
Whistleblower Affidavit was filed, the Wood case did not substantively progress until at least November 20, 2020,
when the court entered an order denying an emergency TRO. See Def. Mot., Ex. 235 at 10-19. This independently
prevents application of the fair reporting privilege to Statements I and J. See Quigley, 327 F.3d at 1062.
482
See Compl., Ex. 19 at 3:12-14 (“[Powell] says it proves all the research that our investigative unit here on
Stinchfield has been uncovering.”), Ex. 20 at 2:16-23 (“Today the campaign, as we said, dropped a bomb on the left
detailing some of the evidence they have been able to compile so far, and it is damning.” (emphasis added)).
483
Def. Opp’n at 42.
484
Compare Def. Mot., Ex. 90 (Ramsland Report) with Ex. 234 (docket of Michigan case in which the Ramsland
Report was filed).
485
Pl. Reply Br. at 38.
486
See Compl., Ex. 29 at 2:10-18 (“So sir, your report I think was shocking. I thought it was very, very important,
and you lay out in great detail all of the weirdness and the issues, and you’ve got the technical expertise and it makes
perfect sense.”), 4:1-5 (“It is amazing. Yeah. 68 percent I think was the error rate, which was obviously ludicrous.
By the way, the Dominion CEO, as you know, is denying everything….”), 5:4-13 (“There’s absolutely no way this
was confined to one county.”), 6:4-8 (“It’s so troubling to me that people are discounting this, but I don’t think you
can steal something this big and get away with it.”) (all emphasis added).
487
Compl., Ex. 28 at 3:19-23.

70
as providing “evidence” which “prove[d]” there was “actual intervention in the vote count …

through Dominion software….” 488 Thus, the fair report privilege does not protect Statement Q

because Mr. Morris represented that the Ramsland Report’s allegations were true. Additionally,

Statement Q exceeded the Ramsland Report by stating it “showed that the results that originally

said that Biden won it with 63 percent were wrong, and Trump won it by 61 percent.” 489

Therefore, the fair report privilege does not insulate Newsmax from liability as to any of

the Statements.

2. The Incremental Harm Doctrine Does Not Protect Any Statement

At the outset, the Court notes that caselaw is mixed regarding whether Colorado

recognizes the incremental harm doctrine. 490 If the incremental harm doctrine exists under

Colorado law, it operates as an addition to the fair report privilege. 491

To the extent that any Statement goes beyond the underlying document on which it is

allegedly a fair report, Newsmax argues that the incremental harm doctrine bars any liability. 492

Newsmax contends that such comments fall within the incremental harm doctrine because

“additional damage from them would be ‘nominal or nonexistent.’” 493

488
Id. at 3:15-25.
489
Id. at 3:15-23; see Def. Mot., Ex. 90 (containing no assertion that Trump won Antrim County with 61% of the
vote).
490
See Tonnessen, 5 P.3d at 965-66 (applying the incremental harm doctrine). But see Bustos v. A & E Television
Networks, 646 F.3d 762, 765-66 (10th Cir. 2011) (suggesting Colorado law does not recognize the incremental harm
doctrine); Anderson v. Colorado Mountain News Media Co., 2019 WL 3321843, at *8 (D. Colo. May 20, 2019)
(same).
491
Tonnessen, 5 P.3d at 965-66. Accordingly, the incremental harm doctrine provides no protection to a statement
uncovered by the fair report privilege. Id. Where the incremental harm doctrine applies, it protects statements that
“imply the same view and are simply an outgrowth” of otherwise privileged statements. Id. at 966. The doctrine
only absolves liability from harms “determined to be nominal or nonexistent” when compared to the underlying
privileged statements. Id. at 965 (internal quotes omitted).
492
Def. Opp’n at 35-42 (citing Tonnessen, 5 P.3d at 965).
493
Id.

71
Dominion raises doubts as to whether Colorado law recognizes the incremental harm

doctrine. 494 Dominion contends that if the doctrine exists, it only applies “where a challenged

statements and a privileged statement are identical, and are expressly attributed to the same

speaker[.]” 495 Dominion posits that even under Newsmax’s interpretation of the incremental

harm doctrine, the Statements are unprotected because they “were not similar” and “went beyond

the purportedly privileged statements.” 496

While Newsmax dismisses Dominion’s position that Colorado law does not recognize the

incremental harm doctrine, 497 it maintains that Colorado’s “material falsehood” requirement

nevertheless provides the same protection. 498

The Court finds that if the incremental harm doctrine exists under Colorado law, 499 it

only applies as an extension of the fair report privilege. 500 Because the fair report privilege is

inapplicable here, the incremental harm doctrine also does not apply. 501

Therefore, the Court GRANTS Dominion’s Motion concerning Newsmax’s fair report

privilege and incremental harm defenses.

F. NEWSMAX IS NOT ENTITLED TO SUMMARY JUDGMENT ON DAMAGES

Newsmax stylizes Dominion’s damages claim as “conten[ding] that hundreds of state and

local officials participating in procurement decisions sided against Dominion because they had

494
See Pl. Opp’n at 60-61 (citing Masson v. New Yorker Mag., Inc., 501 U.S. 496, 523 (1991) (rejecting “any
suggestion that the incremental harm doctrine is compelled as a matter of First Amendment protection for speech.”);
Bustos, 646 F.3d at 765.
495
Id. (emphasis in original) (citing Tonnessen, 5 P.3d at 965-66).
496
Id. at 63-68 (applying Dominion’s view of the fair report and incremental harm doctrines to the “purportedly
privileged statements.”).
497
Def. Reply Br. at 28-29 (citing Pl. Opp’n at 60).
498
Id. (quoting Tonnessen, 5 P.3d at 966).
499
See Bustos, 646 F.3d at 765-66 (suggesting that Colorado law does not recognize the incremental harm doctrine);
see also Colorado Mountain News Media Co., 2019 WL 3321843, at *8 (same).
500
See Tonnessen, 5 P.3d at 965-66.
501
See id.

72
been swayed by Newsmax’s challenged broadcasts.” 502 Newsmax argues that “zero evidence …

support that contention.” 503 Accordingly, Newsmax advances four arguments to support its

position that Dominion cannot prove damages caused by Newsmax: (i) the “presumption of

regularity” applies; (ii) Dominion’s damages are speculative and contradicted by evidence; (iii)

Dominion attributed the same damages to others; and (iv) Dominion cannot recover lost

enterprise value damages. 504 The Court finds that none of these arguments show that Dominion

is legally barred from recovering damages or that there is no factual dispute regarding damages.

Newsmax first argues that Dominion’s damages claim does not overcome Colorado’s

“strong presumption of regularity in the conduct of government affairs[.]” 505 Newsmax contends

that the “presumption of regularity” requires the Court to assume the government officials that

refused to hire Dominion acted in “good faith.” 506 Not so. Rather, Colorado law recognizes “a

presumption of regularity and validity.” 507 Under that presumption, “‘in the absence of evidence

to the contrary, courts presume that [government actors] [] properly discharged their official

duties.’” 508 The presumption is “an adjunct and a supplement to the idea that the manner and

extent of the reading and considering of the evidence of the deciding officials of an

administrative agency cannot be probed[.]” 509 Hence, the presumption of regularity is not a

blanket rule, but a burden-heightening mechanism only used when courts are hesitant to question

the prior rulings of an adjudicative body.

502
Def. Mot. at 98.
503
Id.
504
Id. at 98-118.
505
Id. at 99-103. Newsmax argues that presumption “attach[es] to the conduct of government officials in procuring
election equipment and services.” Id. at 101.
506
Id.
507
Leonard v. Board of Directors, Prowers County Hosp. Dist., 673 P.2d 1019, 1022 (Colo. App. 1983) (citing
Public Utilities Commission v. District Court In and For Arapahoe County, 431 P.2d 773 (Colo. 1967)).
508
Jensen v. City and County of Denver, 806 P.2d 381, 386 (Colo. 1991) (quoting United States v. Chemical
Foundation, 272 U.S. 1, 14-15 (1926)).
509
Public Utilities Commission, 431 P.2d at 468-69.

73
Accordingly, Colorado courts apply the presumption in two situations: (1) when an

appellate court reviews a trial court’s decision; 510 and (2) when a litigant directly challenges the

actions of an administrative body 511 or government official. 512 Newsmax cites no case where a

Colorado court applied the presumption of regularity as a device to invalidate a damage claim in

a suit between private litigants. Dominion will have to prove its damages, 513 but the

presumption of regularity does not heighten the standard. Therefore, the presumption of

regularity provides no basis for granting Newsmax’s Motion regarding damages.

Newsmax’s second argument—Dominion impermissibly attributed the same damages to

Fox—is unsuited for resolution at summary judgment. Newsmax provides no precedential

support for the proposition that a party cannot allege two separate defendants caused similar

harm. 514 To prevail on its defamation claim, Dominion “must establish … ‘damages … caused

by [Newsmax’s] publication.’” 515 At trial, Newsmax may present evidence that Dominion

attributed similar harms to both Fox and Newsmax. Whether that evidence proves that

Newsmax did not damage Dominion is a question for the jury, 516 not the Court at summary

judgment.

510
See, e.g., LePage v. People, 2014 CO 13, ¶ 15 (“According to the presumption of regularity, appellate courts
presume that the trial judge did not commit error absent affirmative evidence otherwise.”).
511
See, e.g., Leonard, 673 P.2d at 1022 (citing Colorado Civil Rights Commission v. Colorado, 488 P.2d 83 (Colo.
1971)); Public Utilities Commission, 431 P.2d at 468-69; Jensen, 806 P.2d at 386.
512
See, e.g., People ex rel. Foley v. Montez, 110 P. 639, 643 (Colo. 1910).
513
Anderson, ¶ 13 (“When the defamatory statement involves a matter of public concern … [t]he plaintiff must
establish actual damages, even if the statement is defamatory per se.”).
514
See generally Def. Mot. at 114-16; Def. Reply Br. at 50-57. “Dominion claimed only that Fox was a ‘substantial’
factor in its damages, not that it was the only cause of its damages.” Pl. Opp’n at 118 (citing Pl. Mot., Exs. 25, 388).
515
Jogan Health, LLC, ¶ 21 (quoting Lawson, ¶ 15).
516
See Garhart ex rel. Tinsman v. Columbia/Healthone, L.L.C., 95 P.3d 571, 586 (Colo. 2004) (en banc)
(“Proximate cause is a question for the jury.”); see also Lipson v. Anesthesia Services, P.A., 790 A.2d 1261, 1290
(Del. Super. Oct. 3, 2001) (“Generally, the issues of causation and damages are left for the jury.”).

74
Similarly, Newsmax’s third argument—Dominion’s damages are “speculative”—does

not warrant summary judgment. As the Court recognized in Fox, “damage issue[s] [are] …

intensely factual.” 517

Newsmax’s final argument is that Dominion impermissibly seeks recovery of both lost

profit and lost enterprise value damages. 518 Dominion does not dispute that lost enterprise value

and lost profits are mutually exclusive damage theories. 519 Rather, the parties’ dispute focuses

on whether lost enterprise value damages are barred because Dominion’s business was not

destroyed.

While no Colorado court has squarely addressed this issue, “[c]ircuit courts, district

courts, and scholars have concluded that diminution of value is an appropriate measure of

damages where a business is completely destroyed.” 520 That characterization is consistent with

Colorado precedent, which awards “diminished value” damages when the harmed entity “will

never have the same value that it had before the incident.” 521 Therefore, caselaw suggests that a

party can only recover lost enterprise value damages when its business is permanently impaired.

Whether Dominion’s business was permanently impaired is a factual question. Newsmax

proffers evidence showing Dominion’s business is growing, 522 and Dominion cites evidence

suggesting its business reputation has been permanently harmed. 523 Accordingly, Newsmax is

not entitled to summary judgment on Dominion’s lost enterprise value damages claim.

517
US Dominion, Inc., 293 A.3d at 1055.
518
See Def. Mot. at 116-18.
519
See Pl. Opp’n at 118-21; see also Forsyth v. Associated Grocers of Colorado, Inc., 724 P.2d 1360, 1365 (Colo.
App. 1986) (noting that allowing both lost profits and lost enterprise value damages “would lead to an improper
double recovery.”). Dominion maintains that it “lost-profit damages are an alternative to Dominion’s list-enterprise-
value damages.” Pl. Opp’n at 120.
520
Opal Labs Inc. v. Sprinklr, Inc., 2021 WL 7159869, at *2 (D. Or. Nov. 8, 2021).
521
Airborne, Inc. v. Denver Air Center, Inc., 832 P.2d 1086, 1092 (Colo. App. 1992).
522
See Def. Mot., Ex. 141 ¶¶ 21-26, (Exs. 2-3); Ex. 142.
523
Def. Mot., Ex. 142 at 122-218.

75
The parties also dispute whether Dominion must prove that the Statements were a

“substantial factor” or a “but-for” cause of the alleged harm. 524 While Colorado courts have not

directly addressed the issue, three sources of existing authority suggest that a defamation plaintiff

need only prove the challenged remarks were a “substantial factor” of the alleged damages.

First, Colorado’s defamation jury instructions state that “[w]hether the plaintiff’s

damages were cause, in part, by third persons who published on the same subject, before or

about the same time as the defendant published,” does not abrogate liability. 525 Rather, the jury

can consider that a third-party contributed to same alleged harm “only to the extent that [it]

justif[ies] a reduction in the amount of damages to be awarded.” 526

Second, the Second Restatement of Torts, upon which Colorado courts regularly rely, 527

endorses the “substantial factor” causation test in defamation cases. 528 Specifically, the

524
See Def. Mot. at 113-15 (arguing that Dominion must show “but-for” causation); Def. Reply Br. at 51-52 (same);
Pl. Opp’n at 114 (arguing that Dominion must prove the Statements were a “substantial factor” in bringing about the
alleged harm).
525
Colo. Jury Instr., Civ. 22:26(2) (2025). Similarly, the late addition of Newsmax Broadcasting, LLC as a co-
defendant does not compel entry of summary judgment in Newsmax’s favor concerning damages. No Colorado
court has squarely addressed whether joint and several liability is permissible in defamation cases. Yet, the Supreme
Court of Colorado has long held that “[n]o law is better settled than that each publication of a libel is a separate and
independent claim[.]” Lininger, 226 P.2d at 812. Moreover, persuasive authority provides that “whenever two or
more persons cooperate in the publication of a libel, all are responsible for the resultant damages, and the victim can
sue them either jointly or severally.” 50 AM. JUR. 2D Libel and Slander § 358. As discussed, both Newsmax Media,
Inc. and Newsmax Broadcasting, LLC are responsible for publishing the Statements. Accordingly, the Court will
not hold that Dominion is precluded from suing both Newsmax entities for damages arising out of the Statements’
publication, such that summary judgment on damages is warranted in favor of Newsmax.
526
Colo. Jury Instr., Civ. 22:26 (2025). Newsmax’s reliance on jury instruction 9:20 is inapposite. First, while
Newsmax cites jury instruction 9:20, it quotes jury instruction 9:18. Second, Chapter 9 of Colorado’s civil jury
instructions deals with “Negligence – General Concepts,” and Chapter 22 applies to “Defamation” cases
specifically. See generally Colo. Jury Instr., Civ. 9 (2025); Colo. Jury Instr., Civ. 22 (2025). Finally, while jury
instruction 9:18 “applies a ‘but-for’ causation test” in cases “when only one cause is alleged,” jury instruction 9:20
explicitly endorses a “substantial factor” test in cases with “concurrent causes.” See Colo. Jury Instr., Civ. 9:18 n.3
(2025); see also Colo. Jury Instr., Civ. 9:20 (2025) (citing Calkins v. Albi, 431 P.2d 17, 20 (1967)).
527
See generally Colo. Jury Instr., Civ. 9 (2025) (repeatedly citing to RESTATEMENT (SECOND) OF TORTS); Colo.
Jury Instr., Civ. 22 (2025) (same).
528
See RESTATEMENT (SECOND) OF TORTS § 613 cmt. e (“When damages are claimed for special harm caused by the
defamatory publication, the plaintiff has the burden of proving that the special harm was legally caused by the
defamatory publication. (See § 622A).”); id. § 622A cmt. b (“For the defamation to be a legal cause of the special
harm, it is necessary that it be a substantial factor in bringing about the harm. In the ordinary case, this means that
the defamation must be a necessary antecedent of the harm, which would not have occurred without it…. It is not

76
Restatement provides that “[w]hen two or more persons make defamatory statements to a third

person, and each statement is found to have had a substantial influence upon his mind that has

induced him to take some action causing special harm to the plaintiff, each of the defamers may

be liable for the special harm.” 529

Third, the sparse caselaw confirms that “[d]efamatory remarks are a proximate cause of

special harm suffered by the person defamed if the remarks were a substantial factor in bringing

about the harm.” 530

Accordingly, to prevail on its defamation claim under Colorado law, Dominion will have

to prove that the Statements were a “substantial factor” in causing its alleged harm.

In sum, the parties proffer sufficient evidence to support their respective positions on

damages. 531 This conflicting evidence shows that there is a genuine factual issue concerning

Dominion’s damages. 532 Therefore, the Court DENIES Newsmax’s Motion concerning

damages.

necessary, however, that the defamation be the sole cause of the special harm, so long as it has played a substantial
part in bringing it about.” (emphasis added)).
529
Id. (“This is true even though it appears that any one statement would have been sufficient in itself to induce the
particular action.”).
530
Roberts v. Bucher, 584 P.2d 97, 99 (Colo. App. 1978), rev’d on other ground, 595 P.2d 239 (1979); see
Churchey v. Adolph Coors Co., 759 P.2d 1336, 1344-45 (Colo. 1988) (endorsing liability for both original
publishers and defendants that republish defamatory statements); see also Coomer v. Lindell, 2024 WL 3989534, at
*6 (D. Colo. Aug. 29, 2024) (holding an argument that “[plaintiff] cannot show actual damages on his defamation
claim because—due to other individuals and entities spreading the same allegedly defamatory message … any
damages … are [] not fairly traceable to, Defendants’ conduct,” did not compel summary judgment. Rather the
court held “[t]he fact that a party and a nonparty defamed Plaintiff in the same way, allegedly causing or
contributing to similar harm around the same time, does not mean that the nonparty is ‘at fault’ for the party's
statements within the contemplation of Colorado law.”).
531
See, e.g., Def. Mot., Ex. 140 ¶¶ 579-80 (supporting Newsmax’s position on damages); Ex. 142 at 90 (same); Ex.
171 at 100:24-101:5, 109:11 (same); Ex. 175 at 124:5-133:23 (same); Ex. 182 at 72:17-73:8 (same); Ex. 201 at
194:17-196:5, 250:13-252:5 (same); Ex. 208 at 56:17-57:5, 160:16-161:4 (same). But see, e.g., Pl. Mot., Ex. 385 at
31-121 (supporting Dominion’s position on damages); Ex. 386 at 116:9-117:15 (same); Ex. 387 at 145:10-150:15
(same); Ex. 388 at 314:2-10 (same) Pl. Opp’n Appendix F (same).
532
See In re Straight Path Communications Inc. Consolidated Stockholder Litigation, 2022 WL 484420, at *14
(Del. Ch. Feb. 17, 2022).

77
G. NEWSMAX IS NOT ENTITLED TO SUMMARY JUDGMENT ON PUNITIVE DAMAGES

Colorado statute authorizes “exemplary damages” if “the injury complained of is

attended by circumstances of fraud, malice, or willful and wanton conduct[.]” 533 Colorado

defines “willful and wanton conduct” as “conduct purposefully committed which the actor must

have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or

of the rights and safety of others, particularly the plaintiff.” 534 To recover punitive damages, a

plaintiff must “pro[ve] beyond a reasonable doubt that [the defendant] engaged in willful and

wanton conduct.” 535 Yet, “[w]hether conduct was willful and wanton must generally be

determined at trial.” 536

Dominion claims that it is entitled to punitive damages based on Newsmax’s willful and

wanton conduct. 537 Newsmax argues that Dominion’s punitive damage claim fails as a matter of

law. 538 The parties dispute whether Newsmax bases its opposition to punitive damages in

current caselaw. 539 Dominion also criticizes Newsmax for improperly “invoke[ing] the ‘beyond

a reasonable doubt’ standard” at summary judgment. 540

533
COLO. REV. STAT. § 13-21-102(1)(a).
534
COLO. REV. STAT. § 13-21-102(1)(b).
535
Thompson v. Ford Motor Company, 2025 WL 370431, at *8 (D. Colo. Feb. 3, 2025) (applying Colorado law).
Exemplary damages “do not present a separate, distinct cause of action, but rather, depend on an underlying claim
for actual damages.” Litterer v. Vail Summit Resorts, Inc., 2025 WL 353306, at *7 (Colo. App. Jan. 30, 2025)
(internal quotes omitted).
536
Carothers v. Archuleta County Sheriff, 159 P.3d 647, 650 (Colo. App. 2006); see Speer v. Kourlis, 935 P.2d 43,
47 (Colo. App. 1996) (“Accordingly, the first issue to be determined is whether plaintiffs’ conduct was willful and
deliberate, and resolution of this issue is a question of fact.” (emphasis added)).
537
Pl. Opp’n at 121-25.
538
Def. Mot. at 118-21.
539
Dominion asserts that Newsmax “omits the statutory definition of ‘willful and wanton conduct’ from its brief,”
and instead relies on “a case interpreting ‘an earlier version of this statute, one that [] did not include the term willful
and wanton conduct or the statutory definition of this term’ now codified[.]” Pl. Opp’n at 121-22 (quoting Cook v.
Rockwell Int’l Corp., 564 F. Supp. 2d 1189, 1209 (D. Colo. 2008), rev’d on other grounds, 618 F.3d 1127 (10th Cir.
2010)); see COLO. REV. STAT. § 13-21-102(1)(a)-(b) (providing the requirements for punitive damages under
Colorado law). Newsmax rejects the proposition that it relies on obsolete caselaw and nevertheless maintains there
is no “meaningful difference between [the previous case’s] definition of ‘wanton and reckless’ conduct and section
13-21-102(1)(b)’s definition of ‘willful and wanton’ conduct.” Def. Reply Br. at 60 n.19.
540
Pl. Opp’n at 123 (citing Sender v. Mann, 423 F. Supp. 2d 1155, 1181 (D. Colo. 2006)).

78
Beyond these legal arguments, Newsmax contends that the facts do not show Dominion

is entitled to punitive damages for four reasons. 541 First, “Newsmax repeatedly invited

Dominion on the air to respond to the Trump Legal Team’s claims,” therefore Newsmax did not

act purposefully or recklessly. 542 Second, Newsmax accurately “reported what it knew of

Dominion’s position.” 543 Third, Newsmax “gave viewers both sides of the story” by giving

“airtime to many guests who countered the Trump Legal Team’s claims.” 544 Finally, Newsmax

notes that it “published a clarification that no evidence was offered that Dominion manipulated

votes in the 2020 election.” 545

In response, Dominion contends that these assertions “at most creates a factual dispute as

to whether [Newsmax’s] conduct was ‘willful or wanton,’” such that summary judgment is

improper. 546

The Court concludes that Newsmax is not entitled to summary judgment on Dominion’s

punitive damages claim. Reasonable jurors could differ on whether Newsmax engaged in willful

and wanton conduct. 547 Therefore, summary judgment on the punitive damages issue is

improper, and the Court DENIES Newsmax’s Motion regarding punitive damages.

H. SUMMARY JUDGMENT IS NOT WARRANTED ON NEWSMAX’S SETOFF CLAIM

Colorado recognizes three versions of a damage setoff. First, the “amount statute” offsets

a damage claim “by the amount by which [the claimant] … has been … wholly or partially

indemnified or compensated for his loss.” 548 Newsmax does not invoke the amount statute, nor

541
Def. Mot. at 119-21.
542
Id. at 119.
543
Id. at 120.
544
Id. at 120-21.
545
Id. at 121.
546
Pl. Opp’n at 124-25.
547
Pl. Mot., Ex. 79 at 176:4-180:24; Ex. 82 at 222:11-223:22; Ex. 90 at 217:23-218:10, 245:24-250:18, 291:9-16;
Exs. 225-227; Ex. 229; Ex. 232; Exs. 235-236; Ex. 389; Ex. 390.
548
COLO. REV. STAT. § 13-21-111.6.

79
could it given that the amount statute does not apply to settlements made to avoid the risk of

liability at trial. 549

Second, the “percentage statute” reduces a party’s “aggregate claim against [one party] to

the extent of any degree or percentage of fault or negligence attributable … to the tortfeasor to

whom the release or covenant not to sue is given.” 550 Accordingly, the percentage statute applies

“only when more than one person is responsible for the injuries suffered by the plaintiff.” 551 The

Supreme Court of Colorado has held that the percentage statute “alone applies to settlement

agreements entered into to avoid exposure to liability at trial.” 552

Third, if neither statute applies, then Colorado employs “common law setoff rules.” 553

Procedurally, the parties dispute whether Newsmax’s setoff position is based on the

percentage statute or common law. Newsmax’s Answer cites the percentage statute, not the

common law setoff. 554 After Newsmax filed its Answer, the District Court for the District of

Colorado issued a decision holding that the percentage statute does not apply “in the context of a

defamation action where the nonparties at are alleged to have separately defamed the plaintiff by

publishing similar or identical statements.” 555 Recognizing this, Newsmax’s briefing argues that

549
Smith v. Zufelt, 880 P.2d 1178, 1183-85 (Colo. 1994) (en banc).
550
COLO. REV. STAT. § 13-50.5-105.
551
Marso v. Homeowners Realty, Inc., 2018 COA 15M, ¶ 17.
552
Smith, 880 P.2d at 1183.
553
Marso, ¶ 28. Contrary to Dominion’s assertion, the common law setoff is not limited to vicarious liability cases.
See Briargate at Seventeenth Avenue Owners Association v. Nelson, 2021 COA 78M, ¶¶ 45-52 (citing United States
v. Munsey Tr. Co. of Wash., D.C., 332 U.S. 234, 239 (1947)).
554
See Answer (asserting a setoff defense based on “Colo. Rev. Stat. § 13-50.5-105,” not common law).
555
Lindell, 2024 WL 3989524, at *13 (D. Colo. Aug. 29, 2024). The court stated that a contrary result “would seem
to contradict the basic theory of designating a nonparty at fault under Colorado—that it contributed to the same
injury as the named defendant.” Id. (emphasis in original) (citing Redden v. SCI Colo. Funeral Servs., Inc., 38 P.3d
75, 81 (Colo. 2001) (“[A] non-party designation is reserved for individuals or entities who might themselves be at
fault and therefore liable for the injury at issue.”) (emphasis added)). Therefore, the percentage statute did not apply
because “[t]he fact that a party and a nonparty defamed Plaintiff in the same way, allegedly causing or contributing
to similar harm around the same time, does not mean that the nonparty is ‘at fault’ for the party’s statements within
the contemplation of Colorado law. Each has affected a different, albeit similar, injury.” Id. Thus, the district
court’s holding was premised on the two alleged defamers causing different injuries, which is a question of fact. Id.

80
it is entitled to a setoff under Colorado common law rather than the percentage statute. 556 In

response, Dominion asserts that Newsmax is procedurally barred from seeking a common law

setoff. 557

Generally, “failure to timely assert an affirmative defense constitutes waiver[.]” 558 Yet,

“Delaware public policy favors deciding cases on the merits rather than technicalities.” 559 Based

on that policy, the Court will not reject Newsmax’s common law setoff argument based on a

pleading technicality, especially because at the time of filing the Answer, the Court had not

issued its choice of law decision. Dominion’s briefing fully responded the to the common law

setoff issue and articulated no undue prejudice arising from Newsmax’s original pleading. 560

Additionally, Newsmax’s Answer asserted a setoff defense based on N.Y. Civil Rights Law §

76, 561 which largely mirrors Colorado’s common law setoff rule. 562 Therefore, Dominion had

sufficient notice of the substance of Colorado’s common law setoff rule, such that rejecting

Newsmax’s common law setoff claim on procedural grounds is not warranted.

556
See Def. Reply Br. at 62-67.
557
Pl. Opp’n at 127 (citing Brennan v. Severance, 2014 WL 4954031, at *2 (Del. Com. Pl. Oct. 3, 2014) (holding an
affirmative defense must be pled or it is waived); Soicher v. State Farm Mut. Auto. Ins. Co., 2015 COA 46, ¶ 21
(“courts have refused to construe an asserted defense as raising a different, unasserted defense, even when the
evidence supporting the two defenses was overlapping.”)).
558
McDougall v. Air Products & Chemicals, Inc., 2005 WL 2155230, at *7 (Del. Super. Aug. 31, 2005).
559
Long v. Jennings, 2021 WL 2134854, at *1 (Del. Super. May 25, 2021).
560
See generally Pl. Opp’n at 125-30.
561
See Answer. At the time Newsmax filed its Answer, the Court had not yet issued its choice of law ruling.
562
Compare N.Y. CIV. RIGHTS LAW § 76 (“At the trial of any civil action for libel, the defendant may prove, for
consideration by the jury in fixing the amount of the verdict, that the plaintiff has already recovered damages, or has
received, or agreed to receive, compensation in respect of a libel or libels of a similar purport or effect as the libel
for which such action has been brought. In consolidated actions based on libels of similar purport or effect the jury
shall assess the whole amount of the plaintiff’s damages in one sum, but a separate verdict shall be taken for or
against each defendant and the jury shall apportion the amount of damages among the defendants against whom it
found a verdict.”), with Marso, ¶¶ 26-28 (citing RESTATEMENT (SECOND) OF TORTS § 885(3) for the common law
setoff rule), and RESTATEMENT (SECOND) OF TORTS § 885(3) (“A payment by any person made in compensation of
a claim for a harm for which others are liable as tortfeasors diminishes the claim against the tortfeasors, at least to
the extent of the payment made, whether or not the person making the payment is liable to the injured person and
whether or not it is so agreed at the time of payment or the payment is made before or after judgment.”).

81
Substantively, Newsmax contends that the Court should offset any damages from the Fox

Settlement because Dominion sued Fox for the same harm allegedly caused by Newsmax. 563

Newsmax maintains that “[i]t is irrelevant that Newsmax and Fox [were] accused of different

legal injuries,” because “Dominion claims that both are responsible for the same harm.” 564

In response, Dominion insists that the Colorado common law setoff does not apply

because it only operates in cases of “vicarious liability.” 565 Additionally, Dominion asserts that

“[a]llowing Newsmax to set off any award of compensatory damages by amounts paid for

release of claims seeking both compensatory and punitive damages” would be a windfall. 566

While the Court finds that Newsmax may pursue a Colorado common law setoff defense,

the Court will not grant summary judgment to Newsmax on the issue. Colorado’s common law

setoff only applies if the previous settlement compensated the plaintiff for the same harm. 567 As

discussed, a genuine factual issue exists regarding if Dominion seeks damages from Newsmax

for harms caused by Fox. Thus, the Court cannot resolve whether Newsmax is entitled to a

setoff from the Fox Settlement at summary judgment.

Therefore, the Court DENIES Newsmax’s Motion regarding the setoff issue.

VI. CONCLUSION

For the reasons stated above, the Newsmax motion is DENIED.

563
Def. Mot. at 121-25 (citing Marso, ¶¶ 42-43). While Colorado has two statutory setoff schemes, Newsmax
asserts that neither applies. Therefore, “‘the common law setoff rule remains in force … to preclude windfall
recover[y].’” Id. (quoting Marso, ¶ 29). Dominion agrees that “Colorado’s amount and percentage [setoff] statutes
do not apply[.]” Pl. Opp’n at 130-31.
564
Id. at 123.
565
Pl. Opp’n at 126-28 (citing Marso, ¶¶ 31-33).
566
Id. at 129-30.
567
See RESTATEMENT (SECOND) OF TORTS § 885(3) (“A payment by any person made in compensation of a claim
for a harm for which others are liable as tortfeasors diminishes the claim against the tortfeasors, at least to the extent
of the payment made[.]”).

82
For the reasons stated above, the Dominion Motion is GRANTED on the issues of: (i)

whether the Statements are per se defamatory; (ii) falsity with respect to Dominion and the

Election; (iii) whether Statements B through S were published by Newsmax; and (iv)

Newsmax’s fair report privilege and incremental harm defenses. Otherwise, the Dominion

Motion is DENIED.

IT IS SO ORDERED

April 9, 2025
Wilmington, Delaware
/s/ Eric M. Davis
Eric M. Davis, Judge

cc: File&ServeXpress

83
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

US DOMINION, INC., DOMINION )
VOTING SYSTEMS, INC., and )
DOMINION VOTING SYSTEMS )
CORPORATION, ) C.A. No.: N21C-08-063 EMD
)
Plaintiffs, )
)
v. )
)
NEWSMAX MEDIA, INC., and )
NEWSMAX BROADCASTING, LLC, )
)
Defendants. )

APPENDIX

84
I. STANDARD OF REVIEW

As stated in the Decision, the Court finds that all the Statements are defamatory per se

because they each suggest that Dominion engaged in criminal activity by aiding election fraud.

Thus, the Court finds that it is irrelevant whether the Statements assert opinions under Colorado

law. 568 Even if the opinion inquiry were relevant, the Court alternatively finds that all the

Statements are nonetheless actionable because none assert pure opinions.

“Defamation is a communication that holds an individual up to contempt or ridicule

thereby causing him to incur injury or damage.” 569 The First Amendment protects statements of

pure opinion, “rhetorical hyperbole,” and statements that are either not “verifiable” (i.e., capable

of being proven true or false), or cannot reasonably be interpreted as stating actual facts. 570

Keohane v. Stewart suggests that Colorado recognizes the doctrine of “mixed

opinion.” 571 Under this doctrine, defamation liability may attach “when a negative

characterization of a person is coupled with a clear but false implication that the author is privy

to facts about the person that are unknown to the general reader.” 572

Colorado applies a two-part test to determine whether a statement is actionable as

defamation. 573 “The first inquiry is whether the statement is ‘sufficiently factual to be

susceptible of being proved true or false.’” 574 The second inquiry is “whether reasonable people

would conclude that the assertion is one of fact.” 575 “The factors relevant to the second inquiry

568
See Keohane, 882 P.2d at 1304 (finding that under Colorado law, “accusations of criminal activity, ‘even in the
form of opinion, are not constitutionally protected.’”)
569
Id. at 1297.
570
See, e.g., Milkovich v. Lorain J. Co., 497 U.S. 1 (1990); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767,
777-78 (1986); Gertz v. Robert Welch, Inc., 418 U.S. 340-41 (1974).
571
See Keohane, 882 P.2d at 1303; see also US Dominion, Inc., 293 A.3d at 1061 (“A mixed opinion ‘implies that it
is based on facts which justify the opinion but are unknown to those reading or hearing it.’” (citation omitted)).
572
Id.
573
See id. at 1299.
574
Id. (quoting Milkovich, 497 U.S. at 21).
575
Id.

85
are: (1) how the assertion is phrased; (2) the context of the entire statement; and (3) the

circumstances surrounding the assertion, including the medium through which the information is

disseminated and the audience to whom the statement is directed.” 576

The fact that a statement is “prefaced” by phrases such as “I think,” “I believe,” or “in my

opinion” is not dispositive of whether the statement is pure opinion. 577 However, such language

“may provide the reasonable listener with grounds to discount that which follows.” 578 “Although

a particular comment might appear on its face to be a statement of fact, when considered in

context it may otherwise be revealed to be mere rhetorical hyperbole, not intended to be

understood in its literal sense.” 579

In Keohane, the Supreme Court of Colorado found that a letter written about a judge in

the editorial section of a newspaper, “when viewed in the context of the letter as a whole,” could

not “reasonably be interpreted as stating actual facts” about the judge. 580 The Keohane court

determined that “much of the letter is couched in terms of speculation and conjecture. … i.e.,

‘makes you wonder,’ ‘it appears,’ and ‘it [is] obvious.’” 581 The Keohane court also found that

“considering the letter in the wider social context in which it appeared, a reasonable reader could

not have taken Campbell’s letter as actual assertions of fact, but would regard her statements as

one citizen’s suspicions and conjecture concerning well-publicized public events.” 582

Newsmax argues that ten Statements are “protected opinion” and thus are not actionable

as defamation: Statements A, B, C, D, F, L, M, N, R, and S. 583

576
Id.
577
See Anderson, ¶ 35; see also Lawson, ¶ 30.
578
Burns v. McGraw-Hill Broad. Co., 659 P.2d 1351, 1360 (Colo. 1983).
579
Brooks v. Paige, 773 P.2d 1098, 1100 (Colo. App. 1988).
580
Keohane, 882 P.2d at 1300.
581
Id.
582
Id. at 1301.
583
See Def. Mot. at 88.

86
II. THE STATEMENTS

A. STATEMENT A

1. Excerpt from Dominion

Statement A is a social media post on Twitter, now called X, posted by Ms. Robinson on

November 10, 2020. 584 Another individual published a post that stated: “Little tidbit:

Smartmatic is the electronic voting systems company that has been used in Venezuela since

2004. Its name is synonymous with fraud for most Venezuelans. Since 2009, Smartmatic has

been a subsidiary of Dominion.” 585

Ms. Robinson replied to that individual’s post, stating: “All crooked roads lead to

Dominion Voting Systems.” 586

2. Omitted Context Offered by Newsmax

Newsmax offers no additional context regarding Statement A.

3. Statement A Asserts Facts

Newsmax argues that Ms. Robinson’s Twitter post cannot be construed as a statement of

fact because “courts often have held that ‘crook’ and ‘crooked’ are non-actionable opinion and

hyperbole.” 587 Also, Newsmax argues that the “medium on which [Ms.] Robinson expressed her

commentary—social media—also suggests that her comment was one of opinion not fact.” 588

The Court finds that Statement A meets both elements of Colorado’s two-part test to

determine whether a statement is actionable as defamation. Ms. Robinson’s post stating that “All

crooked roads lead to Dominion Voting Systems” itself may be considered an opinion because it

584
See Compl. ¶ 248(a).
585
Id.
586
Id.
587
Def. Mot. at 88-89.
588
Id. at 89.

87
contains “rhetorical hyperbole” and is not susceptible of being proved true or false; however,

because Ms. Robinson directly quoted another individual’s post and added her own commentary,

context requires that the two posts must be read together.

The repost itself could be seen by a reasonable viewer as confirmation of the facts

asserted in the post. The Statement, however, goes further—by adding her own commentary in

agreement, Ms. Robinson undoubtedly asserts that the post contains facts: Smartmatic has been

used in Venezuela since 2004, Smartmatic is synonymous with fraud for most Venezuelans, and

Smartmatic has been a subsidiary of Dominion since 2009. These statements are capable of

being proven true or false.

As such, the Court finds that Statement A asserts facts and is not a protected opinion.

B. STATEMENT B

Statement B is a from an episode of Greg Kelly Reports on November 16, 2020. 589 The

segment was titled on the screen as “DEMOCRACY OR ‘DOMINION.’” 590

1. Excerpt from Dominion

Kelly: … I think this country, this planet, could be in for the awakening of the
millennium, something that we haven’t seen in thousands of years, as this election,
the truth is finally told. … Folks, I think we will be in for the shock of our lifetime
this is going to be wild; and the evidence is slowly emerging. Yes, I would like to
have seen it yesterday; but the President has some very, very smart lawyers. One
of my favorites, Sidney Powell. She helped Michael Flynn beat the travesty of a
case that was lodged against him. She’s a former federal prosecutor. And you tell
me, does she – seem like she’s speaking the truth? She spoke to Maria Bartiromo
over the weekend.

Powell: President Trump won by not just hundreds of thousands of votes, but by
millions of votes, that were shifted by the software that was designed expressly for
that purpose. … It was exported internationally for profit by the people that are
behind Smartmatic and Dominion. They did this on purpose. It was calculated.
They’ve done it before. We have evidence from 2016 in California. We have so
much evidence, I feel like it’s coming in through a fire hose.

589
See Compl. ¶ 248(b).
590
Id.

88
Kelly: I believe her, and I don’t believe the critics and the naysayers.

Kelly: … talking about Dominion. This company, the software; there are a lot of
concerns. And what she’s saying, I’m believing. Big problems, vulnerabilities,
votes that can be switched. It happened before in South Carolina. And Sidney
Powell is right. 591

2. Omitted Context Offered by Newsmax

Newsmax asserts that in the Powell Fox Interview, Ms. Powell was specifically

referencing the Whistleblower Affidavit as a “sworn affidavit” filed in a Georgia lawsuit. 592

After playing clips of Ms. Powell’s Fox Interview, Mr. Kelly showed the audience a copy

of a letter signed by Democratic senators Amy Klobuchar and Elizabeth Warren, among others,

dated December 6, 2019. 593 Newsmax contends that the letter “named Dominion” and expressed

concern about “secretive and ‘trouble-plagued companies’” that left voting systems “across the

country ‘prone to security problems.’” 594

Newsmax also offers that Mr. Kelly’s comment that “Sidney Powell is right” is

“improperly isolated in the Complaint. In fact, it was immediately preceded in the broadcast

with his statement that ‘Democrats have raised grave concerns’….” 595

3. Statement B Asserts Facts

Newsmax argues that Mr. Kelly’s “commentary constitutes non-actionable hyperbole or

opinion. It is no secret that Mr. Kelly’s show is an opinion-based show—he repeatedly reminds

viewers of this. … And his viewers know they are not watching a straight news show.” 596

591
Id.
592
See Def. Mot. at 14, 22, 80.
593
See id. at 21-22, 54.
594
Id.
595
Id. at 90.
596
Id.

89
Newsmax also maintains that Mr. Kelly “makes claims that cannot be shown as verifiably

false, such as ‘I believe her, and I don’t believe the critics…’; and he employs conjecture, such

as ‘[f]olks I think we will be in for the shock of our lifetime. This is going to be wild.’” 597

Further, Newsmax argues that when Mr. Kelly’s statement of “Sidney Powell is right” is

viewed in context, “it is clear that [Mr.] Kelly was expressing his opinion based on the disclosed

true facts, including the concerns about Dominion’s voting machines raised by Democratic

Senators Warren and Klobuchar in their December 2019 letter.” 598

Finally, Newsmax cites Abbas v. Foreign Policy Grp., LLC, a case from the United States

Court of Appeals for the District of Columbia Circuit, to argue that questions cannot be

actionable as defamation. 599 Not so. Keohane makes clear, “A question, like a statement of

belief or opinion, though not phrased in the form of a declaration of fact, may imply the

existence of a false and defamatory fact.” 600

The Court finds that Statement B meets both elements of Colorado’s two-part test to

determine whether a statement is actionable as defamation.

Although Mr. Kelly uses language like “I think” and “I believe,” such phrases are not

dispositive of whether the Statement is pure opinion. The Court must also consider the

Statement’s context to determine whether the Statement is “mere rhetorical hyperbole, not

intended to be understood in its literal sense.”

Mr. Kelly’s statements alone, without the context of Ms. Powell’s clips, may be

considered opinions because these statements contain “rhetorical hyperbole” and are not

susceptible of being proved true or false; however, by playing clips of Ms. Powell and adding his

597
Id.
598
Id.
599
Id. (citing Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1339 (D.C. Cir. 2015)).
600
Keohane, 882 P.2d at 1302.

90
own commentary in agreement (“Sidney Powell is right”), context requires that Mr. Kelly’s

statements be read together with Ms. Powell’s.

By agreeing with Ms. Powell, Mr. Kelly implies that Ms. Powell’s claims are based on

facts that are capable of being proven true or false: President Trump won the Election by

millions of votes, Dominion purposely shifted votes, Dominion was designed expressly for the

purpose of shifting votes, and evidence from 2016 in California shows that Dominion has shifted

votes before. Context indicates that Mr. Kelly intended these statements to be understood in a

literal sense, not as mere rhetorical hyperbole. A reasonable viewer would understand that Mr.

Kelly is asserting facts regarding Dominion, not his subjective opinion.

Mr. Kelly also adds his own assertions of fact about Dominion: Dominion has “big

problems and vulnerabilities,” Dominion can switch votes, and Dominion has switched votes

before in South Carolina. Again, these statements are capable of being proven true or false and a

reasonable viewer would conclude that these statements are factual.

As such, the Court finds that Statement B asserts facts and is not a protected opinion.

C. STATEMENT C

Statement C is from a later segment of the same episode of Greg Kelly Reports on

November 16, 2020, where Mr. Morris appeared as a live on-air guest. 601

1. Excerpt from Dominion

Morris: … I believe that this election was absolutely stolen.

Kelly: … I agree with you, by the way.

Morris: … You asked me if I was confident that it had been stolen. I certainly am,
and I think we have to fight and fight and fight to get the truth out here about
Dominion and about the recounts…. 602

601
See Compl. ¶ 248(c).
602
Id.

91
2. Omitted Context Offered by Newsmax

Mr. Morris began his segment by voicing “numerous concerns” about the Election,

including that “vote counts jumped astronomically” for former President Biden in Michigan

while President Trump’s did not, and that several counties in Wisconsin had “ballooning

turnouts, 20% higher than normal.” 603 Mr. Morris then stated, “I believe that this election was

absolutely stolen.” 604 Mr. Kelly responded, “I agree with you, by the way.” 605

Mr. Kelly later asked Mr. Morris, “Are you confident that this thing can be fixed?” 606

Mr. Morris responded, “It’s very possible that Biden will be the next President. You asked me if

I was confident that it had been stolen. I certainly am. And I think that we have to fight, and

fight, and fight to get the truth out there. About Dominion and about the recounts….” 607 Mr.

Morris then pressed viewers to “contact [congressmembers] by phone or by email demanding a

fair recount.” 608

3. Statement C Asserts Facts

Newsmax argues that “both [Messrs.] Morris’ and Kelly’s comments are pure opinion

because [Mr.] Morris disclosed the basis for his views (with which [Mr.] Kelly agreed).” 609

Also, “[Mr.] Kelly’s comment that he ‘agree[s] with’ [Mr.] Morris immediately followed [Mr.]

Morris opining that the election was stolen, well before [Mr.] Morris even mentioned

Dominion.” 610

603
Def. Mot. at 91.
604
Id.
605
Id.
606
Id. at 22, 55.
607
Id.
608
Id. at 91.
609
Id.
610
Id.

92
The Court finds that Statement C meets both elements of Colorado’s two-part test to

determine whether a statement is actionable as defamation.

Although Dominion is not mentioned by name until later in the Statement, a reasonable

viewer would understand that, in context of the entire statement, Mr. Morris was asserting that

the election was stolen by Dominion. In other words, Mr. Morris’ later statement tied Dominion

into the statements that immediately preceded it.

Also, in context, Mr. Morris asking viewers to demand a fair recount leads the reasonable

viewer to draw the same conclusion as Mr. Morris—that a recount is necessary because

Dominion stole the Election.

As such, the Court finds that Statement C asserts facts and is not a protected opinion.

D. STATEMENT D

Statement D is from an episode of National Report on November 16, 2020. 611

1. Excerpt from Dominion

Powell: We’re fixing to overturn the results of the election in multiple states. And
President Trump won by, not just hundreds of thousands of votes, but by millions
of votes, that were shifted by this software that was designed expressly for that
purpose. We have sworn witness testimony of why the software was designed; it
was designed to rig elections.

…

Rechenberg: And Joe, I’ll go back to you then, too, because it wasn’t just the
observers staying out of the counting area, it was also this Dominion voting service,
this – this technology here. What have you researched about that, and what’s the
Trump legal team doing in regards to Dominion?

DiGenova: Well, the bottom line about Dominion is – is that it is a suspect
company. … It has an origin in Venezuela with friends of Hugo Chavez. The
company that runs it now has the counting done overseas in Germany and
Barcelona. 612

611
See Compl. ¶ 248(d).
612
Id.

93
2. Omitted Context Offered by Newsmax

The segment began with a “live update from Logan Ratick, a Newsmax correspondent in

Washington,” who played a clip from the Powell Fox Interview, as quoted in full above. 613

Newsmax asserts that in the Powell Fox Interview, Ms. Powell specifically referenced the

Whistleblower Affidavit. 614

Newsmax also offers that “[Ms.] Rechenberg’s question did not immediately follow the

Powell clip quoted by Dominion; the two are in fact separated by four transcript pages.” 615

3. Statement D Asserts Facts

Newsmax asserts that Statement D is not an assertion of fact because “[Ms.] Rechenberg

was merely asking a barebone question—what is the Trump legal team doing in regards to

Dominion?—without injecting any factual statements or insinuations.” 616

The Court finds that Statement D meets both elements of Colorado’s two-part test to

determine whether a statement is actionable as defamation.

Similarly to Statement B, airing the Powell clip implies to a reasonable viewer that Ms.

Powell’s claims are based on facts that are capable of being proven true or false: President

Trump won the Election by millions of votes, Dominion purposely shifted votes, Dominion

software was designed expressly for the purpose of shifting votes, and President Trump’s legal

team has sworn witness testimony verifying that Dominion was designed to rig elections.

Ms. Rechenberg’s subsequent statement also asserts a fact—“it wasn’t just the observers

staying out of the counting area, it was also this Dominion voting service.” This statement uses

613
See Def. Mot. at 22-23.
614
Id.
615
Def. Opp’n at 25.
616
Def. Mot. at 92.

94
conclusory language to assert a claim that is capable of being proven true or false. The context

also creates an inference to a reasonable viewer that the assertion is factual.

While a portion of Mr. diGenova’s statement includes language implying that he was

asserting his own opinion that Dominion is a “suspect company,” the notion is negated by the

rest of his statement which asserts facts that are capable of being proven true or false: Dominion

has origins in Venezuela with friends of Hugo Chavez, and Dominion’s vote counting is

completed overseas in Germany and Barcelona. A reasonable viewer would conclude that these

assertions are factual, especially after airing the Powell clip which concerned similar claims

about Dominion.

As such, the Court finds that Statement D asserts facts and is not a protected opinion.

E. STATEMENT E

Statement E is from an episode of American Agenda on November 17, 2020, where Mr.

Morris appeared as a live on-air guest. 617

1. Excerpt from Dominion

Childers: … you know, everyone saw the statement that came out allegedly from
the DHS that said this was the safest election ever, I think, in the history of
elections. But what people did not know, I didn’t realize, is sitting on that board of
the Department of Homeland Security, Cybersecurity and Infrastructure Security
Agency, was, in fact, Dominion and Smartmatic.

Morris: Right, that’s true. And also remember, Dominion is a – kind of a shell
company. The real owners, the real motivators of Dominion are the Chinese
Communist Party and two Chavez supporters in Venezuela, who shortly after
Chavez seized power, invented the Dominion Voting System as a method of
stealing elections in Venezuela. And as a result, they were kicked out of Venezuela,
Argentina, and a whole host of other countries….

Sellers: … By the way, folks, you can get Dick’s up-to-the-minute news by going
to DickMorris.com, subscribing free. 618

617
See Compl. ¶ 248(e).
618
Id.

95
2. Omitted Context Offered by Newsmax

Newsmax asserts that “early in” this episode, [Ms.] Robinson “reported on the

Whistleblower Affidavit.” 619 Mr. Morris merely “repeated the [Whistleblower] Affidavit’s

central claim, stating that Dominion’s voting system was created in Venezuela to steal

elections.” 620

Newsmax also contends that Mr. Morris declared his portion of the Statement about

Dominion “unprompted.” 621

3. Statement E Asserts Facts

Newsmax does not argue that Statement E is a protected opinion. Regardless, the Court

will examine the Statement to determine whether it asserts a fact or opinion.

The Court finds that Statement E meets both elements of Colorado’s two-part test to

determine whether a statement is actionable as defamation.

Ms. Childers’ statement advances that Dominion, “in fact,” sits on the board of the

Department of Homeland Security, Cybersecurity and Infrastructure Security Agency. A

reasonable viewer would view this statement as factual, and it is also capable of being proven

true or false.

Morris confirms Ms. Childers’ assertion by stating, “Right, that’s true.” A reasonable

viewer would see this statement as a verification of the preceding claim about Dominion.

Morris then expresses factual assertions about Dominion that are capable of being proven

true or false: Dominion is a shell company, the real owners and motivators of Dominion are the

Chinese Communist Party and two Chavez supporters in Venezuela who invented the Dominion

619
Def. Mot. at 82.
620
Id.
621
Id. at 57.

96
Voting System as a method of stealing elections in Venezuela, and Dominion was kicked out of

Venezuela, Argentina, and other countries. A reasonable viewer would conclude that these

statements are factual, and that the events actually occurred.

As such, the Court finds that Statement E asserts facts and is not a protected opinion.

F. STATEMENT F

Statement F is from an episode of National Report on November 17, 2020, where Mr.

Byrne appeared as a live on-air guest. 622

1. Excerpt from Dominion

Rechenberg: If you don’t mind, kind of break down how you’re connected to this
Dominion machine voting system and why you have some concerns about it.

Byrne: This election was hacked. This election was hacked. The outcome has been
rigged. I was a – I did not vote for Trump. I’m a libertarian – small “L” libertarian
– never voted Republican or Democrat for President in my life. I’m saying this
election was rigged. I’m a CEO who built a $2 billion tech company. I was – I
don’t mean to sound like I’m beating my chest. I was national entrepreneur of the
year, you go back a decade, for building a $2 billion tech company, Overstock. I
know what I’m talking about. I’m – yeah, I’m also a Ph.D. from Stanford and a
Marshall scholar [inaudible]. I’m putting all that credibility on the line. This
election was hacked, the outcome was rigged and should be completely ignored or
discounted, I mean, through the court system. The courts should throw it out.

Rechenberg: Right. You sound like Trump’s legal team right now, so we’re all on
the same page. You sound like what their claims are as well, and clearly you have
the experience and the expertise in regards to maybe shedding some light on how
you know that to be true, yeah.

Byrne: Okay. Here’s how I know that. I’m backing – I have the data incidentally.
I have the data, the electronics, everything. … This is how it came about. In 2018,
the Dallas election had irregularities. The Texas state government hired a[n] elite
cyber security company to go in and study what had happened in 2018, and they
reverse engineered it. And when you reverse engineer something, that’s when you
take the final product and you sorta get a bunch of people to study it and – they
break it apart and figure out how you built it so they can go copy it. These guys
reverse engineered the 2018 Dallas irregularities which turned out to be a hack.
Dominion – Dominion ran it. It was Dominion’s technology that ran it. … I’m
putting my – I was a Marshall scholar, a Ph.D. from Stanford. I built a $2 billion

622
See Compl. ¶ 248(f).

97
company. I’m putting it all on the line. This entire election was hacked. It’s far
easier to have hacked this than a PayPal or your Venmo account.

Rechenberg: Sure. I mean, we’ve seen hacks on major social media outlets before
in this year alone. My mind goes to Twitter. Are you in touch with the Trump
campaign, and would you advise when they are pursuing these lawsuits specifically
about Dominion, that they would bring on board someone who would be able to
prove that they could, in fact, change votes for Donald Trump to Joe Biden? Would
that be provable in court if you brought on the right person?

Byrne: Absolutely provable. We have the data. We have the data. You do not
have to worry. The only question is how quickly can the process intake versus how
quickly the goons are trying to shut down the process so they can seal this all in
cement. Now, I’m saying this again. I did not vote for Mr. Trump. I respect him.
He got elected President. He’s – so this isn’t a Trump supporter coming out and
saying this. I’m a tech CEO, national entrepreneur of the year for building a tech
company, if you go back about – Ernst and Young about 10 years ago. I know what
I’m talking about, and this thing is child’s play to have beaten. It’s embarrassing.
And Trump is actually correct, his campaign is correct.

Rechenberg: Have they reached out to you?

Byrne: I’m one step ahead of the sheriffs myself because of the fact that I’ve come
out about some things, so I don’t work for them, anything like that. I’m not a donor
to them, but I’ve been using my own resources to unscramble this and I’m trying
to feed it into the system. Yes, the system is taking it in. They have their other
sources, but we have all the goods, they’re absolutely correct.

Rechenberg: And do you believe it was millions of votes that were again flipped
from Donald Trump to Joe Biden?

Byrne: Well, the main event is not the total number of millions. It was not
widespread deep. It was narrow and deep. It was very strategic.

Rechenberg: In select states, you’re saying?

Byrne: Select counties. … Five counties that really matter. And they realized if
you hack these five – well, they’re very – a small number of places, if you defeated
the election, you could flip the states, and you could flip the – from that, you can
flip the electoral college. And how it was done – I mean, people can see this in
news, they already know, if you think about this. Doesn’t it seem a little odd that
Mr. Biden was behind in states, you know, 800 – 600,000 votes, and then he has
this come from behind victory and wins by 14,000?

Rechenberg: I know. That’s what so many people are asking. That is what a lot of
people are asking.

98
Byrne: 800,000. 623

2. Omitted Context Offered by Newsmax

Newsmax asserts that “early in” this episode, Ms. Robinson “reported on the

Whistleblower Affidavit.” 624 Newsmax contends that Mr. Byrne “echoed” the Whistleblower

Affidavit’s claims. 625

3. Statement F Asserts Facts

Newsmax maintains that “[Ms.] Rechenberg was clearly asking questions—not making

statements of fact. She was probing Byrne for information or asking his views on different

matters.” 626 Newsmax argues, “Asking a guest to state what they believe (even if their belief

may be controversial) or what support they have for their allegations is what journalists

‘routinely and necessarily’ do—they ‘ask questions in order to obtain information.’” 627

Newsmax also contends:

[Mr.] Byrne’s comments claim the “election was rigged,” but not by Dominion.
Instead, he contends that Dominion’s systems can be “hacked” and speculates that
unidentified persons could have hacked voting systems in the “[f]ive counties that
really matter” to “flip the Electoral College.” … [N]o reasonable viewer would
understand [Mr.] Byrne to have made the nonsensical claim that Dominion hacked
itself. 628

The Court finds that Statement F meets both elements of Colorado’s two-part test to

determine whether a statement is actionable as defamation.

In response to a question from Ms. Rechenberg specifically mentioning Dominion, Mr.

Byrne stated that the Election was hacked, and the outcome was rigged. In context, a reasonable

623
Id.
624
Def. Mot. at 82.
625
Id.
626
Id.
627
Id. (citing Abbas, 783 F.3d at 1339).
628
Def. Opp’n at 27.

99
viewer would find that by answering a question about Dominion, Mr. Byrne is asserting that

Dominion hacked and rigged the Election. Also, this statement is capable of being proven true or

false.

Ms. Rechenberg affirmed Mr. Byrne’s preceding statement by stating, “Right. … we’re

all on the same page.” This statement implies to a reasonable viewer that Ms. Rechenberg

accepts Mr. Byrne’s claims about Dominion as factual.

Ms. Rechenberg then asked how Morris knew these claims to be true, which a reasonable

viewer would see as verification of the preceding claims. Mr. Byrne responded with factual

assertions that he “has the data” to support his conclusion that Dominion hacked and rigged the

Election, and further that Dominion previously caused irregularities in a 2018 Dallas election.

These claims are capable of being proven true or false, and a reasonable viewer would find these

assertions as factual.

Ms. Rechenberg then asked Mr. Byrne if a voting fraud claim against Dominion would be

provable in court, and Mr. Byrne responded conclusively, “Absolutely provable. We have the

data. You do not have to worry.” This statement implies facts, unknown to the viewer, exist to

justify Mr. Byrne’s claims. This would lead the reasonable viewer to come to the same

conclusion as Mr. Byrne—that Dominion hacked and rigged the election.

Finally, following a question from Ms. Rechenberg about “vote flipping,” Mr. Byrne

stated that between 600,000 and 800,000 votes were “flipped” in at least five counties. When

considered in context with the preceding statements about Dominion, a reasonable viewer would

understand that Mr. Byrne is implying that Dominion “flipped” between 600,000 and 800,000

votes in five counties. Again, this assertion is capable of being proven true or false.

As such, the Court finds that Statement F asserts facts and is not a protected opinion.

100
G. STATEMENT G

Statement G is from an episode of Greg Kelly Reports on November 17, 2020, where Ms.

Powell appeared as a live on-air guest. 629

1. Excerpt from Dominion

Powell: … we know Dominion has a long history of rigging elections. That’s what
it was created to do to begin with. … We’ve got increasingly mounting evidence of
significant fraud across multiple states that cast in the question the validity of the
elections in every swing state; including Nevada and Arizona and Michigan,
Wisconsin, Georgia. And it went beyond that, too.

Kelly: You know regarding Dominion …

Powell: And worse than that, it had a backdoor so it could be manipulated by
anyone who could access it through that backdoor. And that was a deliberate
feature the affidavit of the young military officer we provided yesterday to the
public explains how it was created for that very purpose, so … Hugo Chavez would
never lose another election. And he did not after that software was created. He
won every single election. And then they exported it to Argentina, and other
countries in South America, and then they brought it here. And they – it’s a foreign
company no matter how you look at it. So they’ve already violated the President’s
order against foreign interference in our elections. Our votes were actually
eventually counted in Barcelona, Spain or Frankfurt, Germany on foreign servers.
It’s absolutely stunning. And what’s really stunning is the effort that is being
mounted against getting the truth out on this. But you have to realize that every
tech company, every media company, every social media company, scads of
globalist corporations have been doing business in countries with these dictators
that have been installed through this rigged election system for decades. The
corruption is actually worldwide [inaudible] going to upset a countless number of
elections across this country and – and around the world.

Kelly: All right.

Powell: So we need to do that to get rid of the corruption.

Kelly: It does make a lot of sense now…

Powell: … We can – got the evidence from the word – the own mouths of the guy
who founded the company. I haven't even had a chance to get that out to the public
yet, but they admit – the founder of the company admits, he can change a million
votes no problem at all.

629
See Compl. ¶ 248(g).

101
Kelly: The founder of Dominion admitted a long time ago? Recently to you? Can
– tell us more, please.

Powell: Publicly. I will – I will tweet out the video later, and I’ll tag you in it.

Kelly: Please do. @GregKellyUSA if you don’t mind….

…

Powell: … I think we’ll find he had at least 80 million votes. The only reason the
glitches happened in the system was because he was so – he had so far many more
votes than they had calculated in advance, their algorithms wouldn’t perform the
functions they had originally performed or were set to perform. They couldn’t
make up the vote count he had gotten so many hundreds of thousands more than
they planned. So that’s when they had to stop the counting and come up with a way
to back fill the votes or destroy votes for Trump while they fabricated votes for
Biden.

Kelly: Sidney Powell, who is a former federal prosecutor, by the way, spent ten
years working for the government. Good luck. And by the way, very quickly, you
have evidence, it’s coming in fast. There is a reason for not making public, correct?
I mean, you’re going to have a hostile media picking it apart, possibly trying to
destroy your case before you can even make it; is that part of your thinking? Very
briefly, if you don’t mind.

…

Kelly: Well, millions are praying for you and with you. And find her on Twitter,
the least we can do. SidneyPowell1. @SidneyPowell1, the numeral one. We
appreciate it so much. Good luck, and please stay safe. 630

2. Omitted Context Offered by Newsmax

The segment began with Mr. Kelly reading a Twitter post from Ms. Ellis which stated:

“BREAKING: This evening, the county board of canvassers in Wayne County, MI refused to

certify the election results. If the state board follows suit, the Republican legislator will select

the electors. Huge win for [Trump].” 631

630
Id.
631
Def. Mot. at 60.

102
Mr. Kelly then asked Ms. Powell about the “situation in Michigan.” 632 Ms. Powell

responded, as quoted in full above, “We know that Dominion has a long history of rigging

elections. That’s what it was created to do to begin with….” Ms. Powell then “specifically

cit[ed]” the Whistleblower Affidavit by stating, as quoted in full above, “We’ve got increasingly

mounting evidence of significant fraud across multiple states….” 633

Mr. Kelly then showed the audience a “Dominion contract with Santa Clara County, CA,

that included a provision stating that staff could ‘adjust tally based on review of the scanned

ballot images.’” 634 Ms. Powell then stated, as quoted in full above, “And worse than that, it had

a backdoor so it could be manipulated by anyone who could access it through that backdoor….”

Later in the episode, “[Mr.] Kelly cited the October 2020 PBS report documenting

vulnerabilities in Dominion voting machines. It stated that ‘election security experts … have

uncovered several troubling issues’ including vulnerabilities and serious bugs that could make

candidates ‘disappear[] from screens.’” 635

3. Statement G Asserts Facts

Newsmax does not argue that Statement G is a protected opinion. Regardless, the Court

will examine the Statement to determine whether it asserts a fact or opinion.

The Court finds that Statement G meets both elements of Colorado’s two-part test to

determine whether a statement is actionable as defamation.

Throughout the Statement, Ms. Powell asserts of fact about Dominion—we know

Dominion has a long history of rigging elections and that’s what it was created to do to begin

with, there is increasingly mounting evidence of significant fraud across multiple states, there

632
Id.
633
Id. at 82.
634
Id. at 25, 61.
635
Id. at 26, 62.

103
was a backdoor into the Dominion systems that would allow someone to flip votes, Dominion

was created for the purpose of ensuring that Hugo Chavez would never lose another election, and

Dominion counted the Election’s votes in Barcelona, Spain or Frankfurt, Germany on foreign

servers. A reasonable viewer would conclude that these statements are factual and are capable of

being proven true or false.

Mr. Kelly’s statement in agreement, “[i]t does make a lot of sense now,” would be seen

by a reasonable viewer as confirmation of the claims previously asserted by Ms. Powell.

As such, the Court finds that Statement G asserts facts and is not a protected opinion.

H. STATEMENT H

Statement H is from an episode of Wake Up America on November 17, 2020, where Ms.

Robinson appeared live. 636

1. Excerpt from Dominion

Robinson: … [I]n the last 24 hours, [Powell] has released a very long detailed
whistleblower statement that she says is by a high-ranking military official with
firsthand knowledge of Dominion Voting Systems, and how they can be misused.
In the statement, the whistleblower describes the evolution of Dominion Voting
machines and Smartmatic software. Smartmatic software is what was used by
Hugo Chavez and his successor to fix elections in Venezuela. This whistleblower
said that the software was – was developed in conjunction with Chavez in order to
appease his desires to manipulate the vote in Venezuela in a way that could not be
detected. The whistleblower go to – went on to describe in detail his firsthand
experience watching the votes being manipulated in Venezuela in their 2013
presidential elections. He goes on to say that the Smartmatic software is – that all
the vote tabulating machines, including Dominion Voting machines, uses a
derivative or a descendant of Smartmatic software, saying that it’s in the DNA of
every software program used by every voting machine. In the statement he says
quote: “The fact that the voting machine displays a voting result that the voter
intends and then prints out a paper ballot which reflects that change does not matter.
It is the software that counts the digitized vote and reports the results. The software
itself is the one that changes the information electronically to the result that the
operator of the software and vote counting system intends to produce that counts.”
He says that he came forward because he’s concerned about what he’s seeing in the
2020 presidential election saying, quote: “The circumstances and events are eerily

636
See Compl. ¶ 248(h).

104
reminiscent of what happened with Smartmatic software electronically changing
votes in the 2013 presidential election in Venezuela.” He describes what he saw
on election night in five key, battleground states using Dominion Voting Systems,
that includes Georgia, where the vote count was stopped and went offline for
several hours when President Trump was ahead in the vote; when they came back
online, later in the wee hours of the morning, then Joe Biden had taken the lead
significantly. 637

2. Omitted Context Offered by Newsmax

Newsmax asserts that Ms. Robinson merely offered a “live, on-air recitation and

summary of the Whistleblower Affidavit, which was filed in court that day.” 638

3. Statement H Asserts Facts

Newsmax does not argue that Statement H is a protected opinion. Regardless, the Court

will examine the Statement to determine whether it asserts a fact or opinion.

The Court finds that Statement H meets both elements of Colorado’s two-part test to

determine whether a statement is actionable as defamation. Although Ms. Robinson uses

language like “the whistleblower describes” and “he says,” a reasonable viewer would

understand that Ms. Robinson was asserting that these statements are facts about Dominion, not

her opinions. Also, these claims are capable of being proven true or false.

Also, Ms. Robinson prefaced the segment by noting that, according to Ms. Powell, the

statements are from a “high-ranking military official with firsthand knowledge of Dominion

Voting Systems, and how they can be misused,” indicating the authenticity of the claims to

viewers.

As such, the Court finds that Statement H asserts facts and is not a protected opinion.

637
Id.
638
Def. Mot. at 62.

105
I. STATEMENT I

Statement I is from an episode of Stinchfield on November 19, 2020. 639

1. Excerpt from Dominion

Powell: … votes from President Trump and flipped them to President Biden; which
we might never uncovered had the votes for President Trump not been so
overwhelming in so many of these states that it broke the algorithm that have been
plugged into the system, and that’s what caused them to have to shut down.

Stinchfield: This is unbelievable. That’s President Trump’s attorney, Sidney
Powell, laying out evidence that a corrupt algorithm in the Dominion Voting
System starts switching votes from President Trump to Biden on election night, and
it’s such a massive scale it crashes the system. That’s when we see the [inaudible]
them all stop counting. This is why multiple states stopped counting ballots in the
middle of the night, she says. But she also says the states, what they did afterwards,
was absolutely shocking.

Powell: That’s when they came in the back door with all the mail-in – mail-in
ballots, many of which they had actually fabricated. Some were on pristine paper
with identically matching perfect circled dots for Mr. Biden; others were shoved in,
in batches. They’re always put in a certain number of batches, and people would
rerun the same batch. This corresponds to our statistical evidence that shows
incredible spikes in the vote counts at particular times.

Stinchfield: So she says the algorithm was designed to crash allowing these states
to shut down and usher in thousands of fake ballots for Biden. It all makes sense
now, if this is true, right? And she says it proves all the research that our
investigative unit here on Stinchfield has been uncovering….

…

Stinchfield: … The bottom line is, the media is going to ignore all this anyway. Not
us though. That’s Jenna Ellis, of course, ripping into the media naysayers who been
hounding the president’s campaign for proof of widespread voter fraud. Today the
campaign, as we said, dropped a bomb on the left detailing some of the evidence
they have been able to compile so far and it is damning…. 640

639
See Compl. ¶ 248(i).
640
Id.

106
2. Omitted Context Offered by Newsmax

Newsmax contends that at the beginning of the episode, Mr. Stinchfield described Ms.

Powell’s claims as “being backed by ‘sworn witness affidavits.’” 641

3. Statement I Asserts Facts and Mixed Opinions

Newsmax does not argue that Statement I is a protected opinion. Regardless, the Court

will examine the Statement to determine whether it asserts a fact or opinion.

The Court finds that Statement I meets both elements of Colorado’s two-part test to

determine whether a statement is actionable as defamation.

Similarly to Statements B and D, airing the Powell clips implies to a reasonable viewer

that Ms. Powell’s claims are based on facts that are capable of being proven true or false:

Dominion flipped so many votes from President Trump to former President Biden that it broke

the system, and Dominion’s algorithm was designed to crash to allow for states to enter fake

votes for Biden.

Mr. Stinchfield’s statements following the Powell clips are mixed opinions because Mr.

Stinchfield implies that Ms. Powell’s assertions justify his opinions—“it all makes sense now, if

this is true, right?” and “it proves all the research that our investigative unit here on Stinchfield

has been uncovering.” Colorado recognizes that mixed opinions may be actionable as

defamation.

After playing the clip of Ms. Ellis, Mr. Stinchfield asserts that the Trump campaign

“dropped a bomb on the left detailing some of the evidence they have been able to compile so far

and it is damning.” Although the statements “dropped a bomb” and “it is damning” may be

considered “rhetorical hyperbole,” the context of the statement shows that Mr. Stinchfield was

641
Def. Opp’n at 40.

107
referring to the preceding assertions about Dominion’s role in the Election. This would lead a

reasonable viewer to conclude, as a fact, that the Trump campaign has evidence of Dominion

committing election fraud. This claim is capable of being true or false.

As such, the Court finds that Statement I asserts facts and mixed opinions, and is not a

protected opinion.

J. STATEMENT J

Statement J is from the Chris Salcedo Show on November 19, 2020, where Mr.

Stinchfield appeared as a live on-air guest. 642

1. Excerpt from Dominion

Stinchfield: … but I think if you’re going to prove fraud, the electronic pathway to
that is the way you’re going to have to do it, and it may be the most simple way to
do it. We’ve been on the forefront on our show Stinchfield of going into the
Dominion Voting Systems….

Salcedo: … Stinchfield has been very good on the forefront of exploring the
Dominion Voting Machines, Salcedo Show has been exploring and trying to sound
the alarm bells for – for months now, about how our votes are tabulated outside the
country. Rudy Giuliani spoke on this today. And – and just listen to him lay this
out. I – my jaw dropped because it was – A, it was validation from what we’ve
been reporting. And B, to hear Rudy Giuliani talking about it was just amazing.
Listen.

Giuliani: … you should be more astounded by the fact that our votes are counted in
Germany and in Spain by a company owned by affiliates of Chavez and Maduro….

Salcedo: … number two – I mean, the fact they were able to lay out that case, Grant,
was just – jaw dropping to me.

Stinchfield: … we saw, Chris that these votes had gone through a server in
Frankfurt, Germany. I know there was a lot of talk about what happened to these
servers in Frankfurt, Germany; what’s confirmed and what’s not. But what I can
tell you is the people that I’ve talked to absolutely proved that votes were going
from certain states through this server. And lo and behold, we put up the IP address
of that Frankfurt server, the next day, after Stinchfield aired that, the server was
taken offline, Chris. You can't even find it anymore. 643

642
See Compl. ¶ 248(j).
643
Id.

108
2. Omitted Context Offered by Newsmax

Newsmax asserts that “immediately following” the Press Conference, Mr. Salcedo and

Mr. Stinchfield had a “‘live and not scripted’ discussion around whether Trump could prove

fraud.” 644 Newsmax also claims that “this episode was basically ad-libbed, after expected guest

Lin Wood cancelled and Stinchfield was brought in as a last-minute replacement.” 645

Newsmax also offers that at the end of Mr. Stinchfield’s first at-issue Statement, Mr.

Stinchfield stated that his show “has been covering the story about Dominion and Smartmatic

and that ‘investigators’ appearing on his show claimed it ‘certainly is possible that these systems

can be hacked and even used to switch votes.’” 646

3. Statement J Asserts Facts and Mixed Opinions

Newsmax does not argue that Statement J is a protected opinion. Regardless, the Court

will examine the Statement to determine whether it asserts a fact or opinion.

The Court finds that Statement J meets both elements of Colorado’s two-part test to

determine whether a statement is actionable as defamation.

Mr. Salcedo asserts that Dominion tabulated the Election votes “outside the country,”

then states that Mr. Giuliani “spoke on this today”—“this” meaning where Dominion counts its

votes—and then played a clip of Mr. Giuliani stating that “our votes are counted in Germany and

in Spain by a company owned by affiliates of Chavez and Maduro.” While the Giuliani clip does

not mention Dominion by name, the context of the statement shows that Mr. Salcedo offered the

clip to Newsmax viewers to bolster his claim that Dominion (“a company owned by affiliates of

644
Def. Mot. at 28, 67.
645
Id. at 67-68.
646
Id. at 67.

109
Chavez and Maduro”) tabulated the Election votes outside the country (“in Germany and

Spain”). These claims are capable of being proven true or false.

A portion of Statement J includes language implying that Mr. Salcedo was asserting his

own opinion that the case is “jaw dropping” to him; however, the notion is negated by the rest of

his statement which asserts facts.

Mr. Stinchfield asserted as a fact that “these votes”—in context, Dominion’s votes—went

through a server in Germany, and that “people” he has talked to “absolutely proved” his claim.

This statement implies Mr. Stinchfield is privy to facts, unknown to the viewer, which justify

Mr. Stinchfield’s claims. This would lead the reasonable viewer to come to the same conclusion

as Mr. Stinchfield—that Dominion’s votes went through a server in Germany. This claim is

capable of being proven true or false.

As such, the Court finds that Statement J asserts facts and mixed opinions, and is not a

protected opinion.

K. STATEMENT K

Statement K is from an episode of The Howie Carr Show on November 20, 2020, where

Ms. Powell appeared via telephone as a live on-air guest. 647

1. Excerpt Offered by Dominion

Powell: … a lot of evidence of fraud is going to be coming out next week. I’ve got
just more than I can say grace over right now coming in every day. It only gets
worse and worse. This was very widespread. Very deliberate. Very well-
funded….

…

Powell: Yeah, we have a lot of extremely solid evidence. It’s beyond impressive
and absolutely terrifying….

…

647
See Compl. ¶ 248(k).

110
Carr: So how many fraudulent votes do you think that Joe Biden had on his side …
of the slate?

Powell: Probably at least ten million.

Carr: Ten million fraudulent votes?

…

Carr: So did – did most of these votes disappear for the President and appear for
Joe Biden in the – in those states that are still being fought over or – or did this go
on – how many states did this go on in?

Powell: I think the – well, there are several ways that they did this. One was an
algorithm that I believe they ran nationwide, but I can’t say that for sure yet,
because we haven’t had the time to run the data nationwide. But that would
typically be the way it would be done. And certainly make it less apparent that it
had been done in any one place if they ran the algorithm consistently across the
country. So, for example, they can dial it – literally dial it – to every time there was
a vote for Trump or – that it be weighted at 0.75, and every vote for Biden be
weighted at 1.25. … So I don’t think any state was safe from it, despite the best
efforts of some not to use the Dominion Voting Systems which were clearly
fraudulently created and sold.

…

Powell: … and then the other thing they did, where they had the real problem, was
Trump won so overwhelmingly in all the states that had to cut off their machines,
that they had to cut off their machines for hours to go in and backfill additional
votes and move things around even more to make sure that Biden won. … We found
… pristine ballots with only a computer-made dot for Biden, and all of them were
alike. They could just stick those in the machine in batches and run them through
repeatedly and count, you know, hundreds of thousands of votes that way. There’s
a drag-and-drop feature to take Trump votes and put them in a trash can or assign
them to a third-party candidate or move them from a third-party candidate to Biden.
I mean, I think they did absolutely everything. And we also have information that
one of the high people in Dominion Voting Systems went to Detroit to operate the
system himself there that night at the – the Detroit center.

…

Carr: Let me ask about this guy Eric Coomer. He’s – I think he – he works for
Dominion, he’s – he’s Berkeley, California University of California grad. He’s the
one who was allegedly – there’s a – he was on a conference call or something, a
Zoom, with – with Antifa and he said, supposedly: Don't worry about Trump, I’ve

111
already – I’ve already made sure he’s going to lose the election. … Is that true, for
– for starters … ?

Powell: Yes.

Carr: It’s true? You have that … ?

Powell: It’s true. Yeah, we – we have an affidavit to that effect and we have … I
think we have a copy of the call.

…

Powell: And also Dominion has shuttered up both of their offices in Canada where
they shared an office floor with a George Soros entity. … And they have moved
their office in Denver. And, of course, I’m sure there was a lot of document
shredding and things, quote, “lost,” end quote, in that process. You know, the FBI
should have moved on all of this immediately; all of the voting machines should
have already been impounded. The software should have been secured and
examined….

…

Powell: … in the meantime we will be producing additional evidence to help the
public understand the breadth and depth of this international, frankly criminal
conduct; and it will also reflect substantial foreign interference in our election.

Carr: Sidney Powell … Including China, correct?

Powell: Yeah. China, Iran, Serbia, Lichtenstein. Multiple places. 648

2. Omitted Context Offered by Newsmax

Newsmax offers no additional context regarding Statement K.

3. Statement K Asserts Facts

Newsmax does not argue that Statement K is a protected opinion. Regardless, the Court

will examine the Statement to determine whether it asserts a fact or opinion.

The Court finds that Statement K meets both elements of Colorado’s two-part test to

determine whether a statement is actionable as defamation.

648
Id.

112
Ms. Powell initially makes assertions about voting fraud generally without naming

Dominion. After stating that the Trump legal team has a “lot of extremely solid evidence” of

voting fraud, that former President Biden had “at least ten million” fraudulent votes, and that

“they” ran an algorithm nationwide to “dial” the machines to give more weight to former

President Biden votes, Ms. Powell then stated that “I don't think any state was safe from it,

despite the best efforts of some not to use the Dominion Voting Systems which were clearly

fraudulently created and sold.” When considering the last statement in context, a reasonable

viewer would conclude that Ms. Powell was referring to Dominion in her preceding statements.

Also, these claims are capable of being proven true or false.

Ms. Powell also makes an assertion of fact that a Dominion employee, Mr. Coomer, said

that he had “made sure [Trump was] going to lose the election.” Ms. Powell states that the

Trump legal team has an “affidavit” verifying this claim, indicating the authenticity of the claims

to viewers. This statement is capable of being proven true or false, and a reasonable viewer

would conclude this statement to be factual.

Ms. Powell also asserts that Dominion “shuttered up both of their offices in Canada

where they shared an office floor with a George Soros entity” and moved to Colorado. Ms.

Powell then expresses, “of course, I’m sure, there was a lot of document shredding and things,

quote, ‘lost,’ end quote, in that process.” This assertion alone may seem like an opinion, but

when read in context with the rest of the Statement, a reasonable viewer would conclude that Ms.

Powell was asserting this information as a fact.

Finally, Ms. Powell states that Trump’s legal team will be producing evidence of

“international, frankly criminal conduct; and it will also reflect substantial foreign interference in

our election” by China, Iran, Serbia, Lichtenstein, and others. These claims are capable of being

113
proven true or false. Also, when considering the context of the conversation about Dominion

immediately preceding this claim, a reasonable viewer would conclude that Powell is asserting

claims about Dominion’s “international” “criminal conduct” and “substantial foreign

interference.”

As such, the Court finds that Statement K asserts facts and is not a protected opinion.

L. STATEMENT L

Statement L is from an episode of The Count on November 21, 2020, where Ms. Powell

appeared via telephone as a live on-air guest. 649

1. Excerpt from Dominion

Schmitt: If you want to shut the media up, and they say that you guys have nothing
– when will you have some of the stuff that’s – that’s this hardcore evidence in
paper and writing?

Powell: Well, frankly, the affidavits we’ve already introduced are hardcore
evidence. They’re first-hand testimony of witnesses who saw how and why the
system was created and how it worked to accomplish the objective for Hugo
Chavez. … We’ve got all kinds of different evidence. And then we’ve the statistical
and mathematical evidence that’s absolutely irrefutable. … And we’ve got other
testimonial evidence that appears to be coming in now to indicate the Democrats
literally added 35,000 votes to every Democratic candidate to begin with.

…

Powell: … frankly, with everything we’ve got, these should be criminal
prosecutions at a – at a significant level for fraud and conspiracy to defraud …
provable beyond a reasonable doubt. There are hundreds of thousands of people in
our criminal system right now in prison who were convicted on far less evidence
of guilt than we have here.

…

Powell: … and they can see it. Everybody saw it on election night. They saw votes
being subtracted from President Trump and appearing on the Biden side of the
scale. And that’s exactly what this Dominion System was designed to do. And we
have … eyewitness testimony to its entire creation for that very purpose.

649
See Compl. ¶ 248(l).

114
…

Schmitt: If this happened, how big of a conspiracy – how many people would have
had to been in on something like this?

Powell: Oh gosh. Probably thousands, including the people running the machines
at each of the polls and polling centers. We know, for example, that one of the
higher ups of Dominion went to Detroit the night of the election to – to handle
things himself. And we also have evidence that there were any number of VPN
lines open to the Internet for foreign actors to be meddling in it.

…

Powell: … our key – our witness from Venezuela who saw it all created and how it
worked, said that he knew as soon as the machines were turned off in those key
states, it was because we the people in voting Trump – and voting for Trump in a
landslide election, had essentially broken the algorithm that had been
preprogrammed into the machine….

…

Powell: … Georgia’s probably going to be the first state I am going to blow up, and
– and [Georgia governor] Mr. Kemp and the Secretary of State need to go with it,
because they’re in on the Dominion scam with their last-minute purchase or award
of a contract to Dominion of $100 million. The State Bureau of Investigation for
Georgia ought to be looking into financial benefits received by Mr. Kemp and …
the Secretary of State’s family about that time. And another benefit, Dominion was
created to award, is what I would call, election insurance. That’s why Hugo Chavez
had it created in the first place.

…

Powell: … And it looks like it – thirty-five thousand votes were added to every
democratic candidate. 650

2. Omitted Context Offered by Newsmax

Prior to Ms. Powell stating that there “should be criminal prosecutions … for fraud,” Mr.

Schmitt asked whether Ms. Powell thought she had “irrefutable evidence.” 651

650
Id.
651
Def. Mot. at 30.

115
Newsmax asserts that “after hearing everything,” Mr. Schmitt stated, “everything you’re

alleging frankly, is nuts.” 652

3. Statement L Asserts Facts and Mixed Opinions

Newsmax does not dispute that Ms. Powell’s statements are statements of fact. For the

same reasons as stated above regarding Ms. Powell’s previous guest appearances, a reasonable

viewer would understand that Ms. Powell is asserting provable facts regarding Dominion.

Newsmax instead argues that Mr. Schmitt’s questions were not statements of fact; rather,

Mr. Schmitt was “merely asking [Ms.] Powell questions germane to the credibility of [Ms.]

Powell’s statements.” 653 “For instance, he asked her when she will have ‘hardcore evidence’ to

support her statements. He was also testing the credibility of her claims when he inquired as to

how big of a ‘conspiracy’ there would need to be to accomplish what [Ms.] Powell was asserting

regarding electronically changing votes.” 654 Newsmax argues that Mr. Schmitt was “doing what

journalists ‘routinely and necessarily’ do—they ‘ask questions in order to obtain

information.’” 655

The Court finds that Statement L meets both elements of Colorado’s two-part test to

determine whether a statement is actionable as defamation.

After watching the video of Statement L and considering its context, the Court finds that

Mr. Schmitt’s questions to Ms. Powell do not express opinion or rhetoric hyperbole. Rather, a

reasonable viewer would conclude that Mr. Schmitt asked his questions to verify Ms. Powell’s

assertions of facts, not to express his opinion. Throughout the interview, Mr. Schmitt and co-

652
Id.
653
Id. at 93.
654
Id.
655
Id. (citing Abbas, 783 F.3d at 1339).

116
host Mark Halperin repeatedly ask Ms. Powell to produce evidence unknown to the audience to

verify the truth of her claims about Dominion.

As such, the Court finds that Statement L asserts facts and is not a protected opinion.

M. STATEMENT M

Statement M is from an episode of The Benny Report on November 23, 2020. 656

1. Excerpt Offered by Dominion

Johnson: Finally, we get to Dominion Voting Systems. … Their voting systems are
used in Venezuela. And their votes are counted off of American soil; if that tells
you anything…. 657

2. Omitted Context Offered by Newsmax

Newsmax contends that toward the end of Mr. Johnson’s “9-minute-long opening

monologue on the election controversy,” Mr. Johnson offered “commentary on Dominion and

the value of paper ballots.” 658

Newsmax also provides that during his monologue, Mr. Johnson stated that Dominion’s

voting system “is about as trustworthy as Ilhan Omar’s marriage certificates.” 659

Further, Newsmax adds that Mr. Johnson concluded his monologue by stating that

Dominion is a Canadian company, and that the Canadian Election Board is “laughing at us” for

using electronic voting. 660

656
See Compl. ¶ 248(m).
657
Id.
658
Def. Mot. at 70.
659
Id. at 94.
660
Id.

117
3. Statement M Asserts Facts

Newsmax argues, “While [Mr. Johnson’s] claims may derive from statements by [] [Ms.]

Powell and other members of the Trump Legal Team, [Mr.] Johnson did not repeat their

accusations about Dominion being involved in any election fraud.” 661

Newsmax also contends that Mr. Johnson’s commentary is “non-actionable hyperbole or

opinion. The Benny Report is an opinion-based show, and that is especially true of Mr.

Johnson’s opinionated opening monologue.” 662

Further, Newsmax claims that Mr. Johnson’s comments are “excerpted from an over-the-

top rant against electronic voting that begins with his unchallenged quip that Dominion’s

systems are ‘about as trustworthy as Ilhan Omar’s marriage certificates.’ … [Mr.] Johnson’s

commentary expresses his opinion about electronic voting and is not a defamatory statement of

fact.” 663

The Court finds that Statement M meets both elements of Colorado’s two-part test to

determine whether a statement is actionable as defamation.

Although Newsmax offers additional context showing that Mr. Johnson uttered a

sentence of “rhetoric hyperbole,” this does not negate the rest of the Statement where Mr.

Johnson did assert facts about Dominion—that Dominion’s voting systems “are used in

Venezuela” and Dominion’s votes “are counted off of American soil.” These statements are

capable of being proven true or false, and a reasonable viewer would conclude that Mr.

Johnson’s assertions were factual.

As such, the Court finds that Statement M asserts facts and is not a protected opinion.

661
Id. at 93-94.
662
Id. at 94.
663
Id.

118
N. STATEMENT N

Statement N is from an episode of Greg Kelly Reports on December 7, 2020, where Ms.

Powell appeared as a live on-air guest. 664

1. Excerpt from Dominion

Kelly: Gosh, we’re pulling for you. As you know, this is an opinion show and
we’re on your side. How are you holding up, first of all?

…

Kelly: You’re still focused primarily on the Dominion Voting machines and the
issues on a technical basis, correct?

Powell: … yes, we focused also on the systematic problem with the Dominion
machines. We have an expert who has identified that the votes for Biden was 5%
overall greater wherever there were Dominion machines than any of the other votes.
That is essentially the amount of votes that it can flip and brag about being able to
flip. We know from … one of our witnesses that these machines were created in
Venezuela, and the entire process was started there to make sure Mr. Chavez won
every election. And then, of course, the Wall Street Journal, I think, today featured
Venezuela’s rigged election for Maduro. This is the same technology. The same
equipment. It came out of Venezuela to be used here. I would imagine our three-
letter agencies have a role in it. We’re essentially fighting the entire globalist elite
power structure that wants to control the world for their own financial benefit….

Kelly: You know, two years ago, I would have said that sounds crazy; but after all
that’s happened, I think you’re absolutely right. I think this is the way the world
works. By the way, I do want to ask you about the servers overseas. Dominion
reportedly has all kinds of internet connections and – for whatever reason they were
counting the votes in places like Spain and Germany. You have seen the reports,
maybe you know firsthand that – you know, some of these servers may or may not
have been seized. Overseas equipment of Dominion taken possession of by forces
friendly to the United States. Do you know anything about that?

Powell: … The Dominion system should never have been allowed in this country.
They are internationally known. Our votes were counted in Frankfurt, Germany,
and altered in Barcelona, Spain, and other places. We simply cannot allow that as
the United States of America. 665

664
See Compl. ¶ 248(n).
665
Id.

119
2. Omitted Context Offered by Newsmax

Newsmax offers that right before Mr. Kelly stated, “I think you’re absolutely right,” Ms.

Powell stated, “And frankly, that includes a lot of American corporations that have international

interests and want to do business with China, have made back deals with the Chinese, and untold

numbers of politicians who have done the same thing.” 666

3. Statement N Asserts Facts

Newsmax does not dispute that Ms. Powell’s statements represent facts. For the same

reasons discussed above, a reasonable viewer would understand that Powell is asserting facts

capable of being proven true or false regarding Dominion.

Rather, Newsmax argues that Mr. Kelly’s questions to Ms. Powell—including whether

Ms. Powell was “still primarily focused on Dominion voting machines” and whether any

“overseas equipment of Dominion” had been seized “by forces friendly to the United States”—

are not actionable because “a genuine effort to obtain information cannot be defamatory.” 667

Newsmax also asserts that Mr. Kelly’s statement that Ms. Powell was “absolutely right”

did not concern Dominion because it immediately followed the following statement by Ms.

Powell:

We’re essentially fighting the entire globalist elite power structure that wants
control of the world for their own financial benefit. And frankly, that includes a lot
of American corporations that have international interests and want to do business
with China, have made back deals with the Chinese, and untold numbers of
politicians who have done the same thing. 668

666
Def. Mot. at 95-96.
667
Id. (citing Abbas, 783 F.3d at 1339 (quoting 1 SACK ON DEFAMATION § 2:4.8)).
668
Id. at 95-96.

120
Even when considering Newsmax’s additional context and arguments, the Court finds

that Statement N meets both elements of Colorado’s two-part test to determine whether a

statement is actionable as defamation.

When viewed in context, a reasonable viewer would conclude that Mr. Kelly’s statements

validate Ms. Powell’s claims about Dominion. Mr. Kelly’s initial statement, “[a]s you know,

this is an opinion show and we’re on your side,” does not negate the rest of the Statement

containing factual assertions about Dominion.

Although Mr. Kelly uses language like “I think,” such language is not dispositive of

whether the Statement is one of pure opinion. The Court must also consider the Statement’s

context to determine whether the Statement is “mere rhetorical hyperbole, not intended to be

understood in its literal sense.” In context, a reasonable viewer would conclude that Mr. Kelly’s

statements offer an endorsement of Ms. Powell’s claims in a literal sense. Also, unlike in

Keohane, none of Mr. Kelly’s statements contain speculation or conjecture about Powell’s

claims concerning Dominion.

As such, the Court finds that Statement N asserts facts and is not a protected opinion.

O. STATEMENT O

Statement O is from an episode of John Bachman Now on December 14, 2020, where Mr.

Morris appeared as a live on-air guest. 669

1. Excerpt from Dominion

Morris: … Bear in mind, Dominion was invented by people working for Hugo
Chavez, the Venezuelan dictator after he, quote, “lost” an election. And he then
decided to, quote, “win” the election by fixing the voting machines. And he
expressly had them designed – it’s written in the specs – that this should be so votes
can be altered and not be traced. … And secondly, they’re about to do the same
damn thing on January 5th in Georgia with the same machines and the same result,
and the Senate is at risk this time.

669
See Compl. ¶ 248(o).

121
Bachman: … but fundamentally, nothing has really changed in that state for voters
who are going to the polls … today. 670

2. Omitted Context Offered by Newsmax

Newsmax provides that prior to Dominion’s offered excerpt, Mr. Bachman mentioned

that Trump’s attorneys had a “lack of evidence” in a recent Wisconsin election lawsuit, then

asked Mr. Morris, “Why did that happen?” 671 Mr. Morris responded, “I have no idea,” then Mr.

Morris “blurted out” the Statement. 672

Newsmax also offers that Dominion omitted the first part of Mr. Bachman’s statement,

that there is a “task force watching over for election fraud[,] … fundamentally, nothing has really

changed in that state for voters who are going to the polls today.” 673

3. Statement O Asserts Facts

Newsmax does not argue that Statement O is a protected opinion. Regardless, the Court

will examine the Statement to determine whether it asserts a fact or opinion.

Even when considering Newsmax’s offered omitted context, the Court finds that

Statement O meets both elements of Colorado’s two-part test to determine whether a statement is

actionable as defamation.

Mr. Morris asserts that Dominion was invented by people who worked for Hugo Chavez

to ensure that he would win Venezuelan elections, and that it is “written in the specs” that

Dominion can alter votes and not be traced. This claim is capable of being proven true or false,

and a reasonable viewer would conclude that Mr. Morris was asserting this statement as a fact.

670
Id.
671
Def. Mot. at 33.
672
Id.
673
Def. Opp’n at 30.

122
Mr. Morris then claims that “they”—in context, Dominion—are about to do the “same

thing”—in context, alter votes—with the “same machines” and the “same result” in Georgia’s

senate election. Again, this claim is capable of being proven true or false, and a reasonable

viewer would conclude that Mr. Morris was asserting this statement as a fact.

Mr. Bachman responded in agreement about Mr. Morris’ claims, which would be seen by

a reasonable viewer as confirmation of the facts asserted by Mr. Morris.

As such, the Court finds that Statement O asserts facts and is not a protected opinion.

P. STATEMENT P

Statement P is from an episode of Stinchfield on December 17, 2020, where Mr. Lindell

appeared as a live on-air guest. 674

1. Excerpt from Dominion

Stinchfield: I want to bring in a guy now, who I know agrees with me … Mike
Lindell … So look, Fox News, we all know, has problems. We know it’s
responsible for bringing a lot of viewers to Newsmax…

…

Lindell: … But I will say this, it’s a blessing, because at 11:15, when they realized
that the – all of algorithms broke in all those Dominion machines, that Donald
Trump was going to win the presidency anyway, in spite of all the cheating, so they
had to stop everything in the middle of the night, and then backfill votes and
stop…. 675

2. Omitted Context Offered by Newsmax

“After [Mr.] Stinchfield—in a portion omitted by Dominion—asked [Mr.] Lindell about

Fox News, [Mr.] Lindell began to discuss Fox’s election night coverage, referring to Fox as

674
See Compl. ¶ 248(p).
675
Id.

123
‘they’—for example, ‘they don’t call Florida for the president when it was impossible for Biden

to win Florida.’” 676

Newsmax asserts that Mr. Lindell then “blurted out,” “unbidden,” his portion of the

Statement. 677 Newsmax also claims that Dominion “misquotes” the Statement and offers the

following transcription:

But I will say this, it’s a blessing, because at 11:15 when they realized that the all
the algorithms broke and all those Dominion machines that Donald Trump was
going to win the presidency anyway, in spite of all the cheating, so they had to stop
everything in the middle of the night and then backfill votes and stuff. 678

Newsmax continues, “Although Dominion omits it, [Mr.] Lindell then continued to

discuss Fox, beginning, ‘And I put Fox right up there with….’” 679

Newsmax adds that “shortly after [Mr.] Lindell’s outburst,” Mr. Stinchfield stated, “You

know, you brought up Dominion. I’ve tried to reach out to them six, seven times. They’ve never

called me back or returned my emails.” 680

3. Statement P Asserts Facts and Mixed Opinions

Newsmax does not argue that Statement P is a protected opinion. Regardless, the Court

will examine the Statement to determine whether it asserts a fact or opinion.

The Court finds that Statement P meets both elements of Colorado’s two-part test to

determine whether a statement is actionable as defamation.

Mr. Stinchfield’s comment is a mixed opinion because it implies that there are facts,

unknown to the viewer, which justify his impending statements—I know Lindell agrees with me,

and we know Fox News is responsible for bringing a lot of viewers to Newsmax.

676
Def. Opp’n at 31.
677
Def. Mot. at 34, 73.
678
Def. Opp’n at 31.
679
Id.
680
Def. Mot. at 34.

124
In context, when Mr. Lindell said “they,” he was referring to Dominion—when

Dominion realized that its “algorithms broke,” Dominion stopped the vote count and “backfilled”

the votes. These statements are capable of being proven true or false, and a reasonable viewer

would conclude that Lindell was asserting these statements as facts.

As such, the Court finds that Statement P asserts facts and mixed opinions and is not a

protected opinion.

Q. STATEMENT Q

Statement Q is from an episode of American Agenda on December 18, 2020, where Mr.

Morris appeared as a live on-air guest. 681

1. Excerpt from Dominion

Morris: … This is actual intervention in the vote count. This is through Dominion
software and Smartmatic. And the accusation here is that the vote count itself was
altered and flipped through that software. You know, it’s been proven in one
county in Michigan…. 682

2. Omitted Context Offered by Newsmax

Newsmax claims that in the “middle of a conversation about foreign interference, [Mr.]

Morris changed the topic” and “exclaimed” the Statement. 683

Newsmax also offers that Mr. Morris followed up the Statement by stating that the

“initial results” in Antrim County, Michigan, held that former President Biden “won it with 63

percent” but later that “Trump won it by 61 percent.” 684

681
See Compl. ¶ 248(q).
682
Id.
683
Def. Mot. at 34, 74.
684
Id. at 34-35.

125
3. Statement Q Asserts Facts

Newsmax does not argue that Statement Q is a protected opinion. Regardless, the Court

will examine the Statement to determine whether it asserts a fact or opinion.

Even when considering Newsmax’s offered context, the Court finds that Statement Q

meets both elements of Colorado’s two-part test to determine whether a statement is actionable

as defamation.

In context, Mr. Morris is implying that Dominion committed an “actual intervention” in

the Election’s vote count, and further that the “accusation” that Dominion’s software “altered

and flipped” the vote count had been “proven” in Antrim County, Michigan. These claims are

capable of being proven true or false, and a reasonable viewer would conclude that Mr. Morris

was asserting these statements as facts.

As such, the Court finds that Statement Q asserts facts and is not a protected opinion.

R. STATEMENT R

Statement R is from an episode of Greg Kelly Reports on December 18, 2020, where Mr.

Ramsland appeared as a live on-air guest. 685

1. Excerpt from Dominion

Kelly: That’s Russell Ramsland, election technology and security expert, speaking
before the election, and all of his concerns unfortunately came true. Russell
Ramsland wrote the very important report on the craziness that happened in Antrim
County, Michigan. Russell, welcome back to Newsmax. How are you tonight?

Ramsland: Good to be here.

Kelly: Thanks so much. So sir, your report, I think, was shocking. I thought it was
very, very important, and you lay out in great detail all of the weirdness and the
issues, and you’ve got the technical expertise and it made perfect sense….

Ramsland: … [T]he logs, had they been able to be published, show very clearly that
the RCV algorithm was enacted, it shows very clearly that the error messages were

685
See Compl. ¶ 248(r).

126
massive, it shows very clearly that races were flipped. Now, most of the important
races that were flipped were down ballot. The most important race was a marijuana,
proposal….

Kelly: It is amazing. Yeah. 68 percent I think was the error rate, which is obviously
ludicrous….

…

Kelly: I want to show the initial tally from Antrim County. It has Joe Biden up
with a pretty comfortable lead, and then things switched. Let’s go ahead to the next
one. By November 21st Donald Trump had the lead, and I guess we were lucky to
catch this. And you, I think, made the point in the report that it could not have just
been Antrim County. Antrim County, if this were to happen there, Dominion
voting system is used in what, 48 counties, all 48 of Michigan. There’s absolutely
no way this was confined to one county.

Ramsland: Correct….

Kelly: It’s so troubling to me that people are discounting this, but I don’t think you
can steal something this big and get away with it…. 686

2. Omitted Context Offered by Newsmax

“In a portion omitted by Dominion,” Mr. Ramsland “explains that the software makes it

‘easy’ ‘to change votes’ and that ‘you can easily change the audit trail so that later you cannot

even forensically go back and find out the votes that were changed.’” 687

Newsmax also offers additional context to Mr. Kelly’s statement: “It is amazing. Yeah.

68 percent I think was the error rate, which is obviously ludicrous. By the way, the Dominion

CEO, as you know, is denying everything….” 688 Mr. Kelly then played a clip of Mr. Poulos’

December 15, 2020, Michigan Senate testimony where he stated in relevant part, “There are no

switched or deleted votes involving Dominion machines.” 689

686
Id.
687
Def. Opp’n at 33.
688
See Def. Mot. at 35, 96.
689
Id. at 96.

127
After watching the Poulos clip, Mr. Ramsland stated, “I guess [Mr. Poulos] needs to read

Chapter 11.0 in his own user’s manual … because he’s dead wrong.” 690

3. Statement R Asserts Facts

Newsmax does not dispute that Mr. Ramsland’s statements are ones of fact. The Court

finds that Mr. Ramsland’s statements are capable of being proven true or false and a reasonable

viewer would conclude that Mr. Ramsland was asserting facts.

Rather, Newsmax argues that Mr. Kelly’s comments about the Ramsland Report are all

subjective opinions that are not verifiably true or false. 691 Newsmax states:

In context, it is clear that [Mr.] Kelly was acting as a typical opinion journalist. He
allowed his guest ([Mr.] Ramsland) to present his information, and then [Mr.] Kelly
aired footage of [Mr. Poulos] denying the allegations about Dominion. [Mr.] Kelly
then interspersed his own opinions, including that the error rate alleged in [Mr.]
Ramsland’s report was “obviously ludicrous” and that “we were lucky to catch this”
regarding the vote-flip in Antrim County. He phrased comments in the conditional:
“if this were to happen there, ….” This signifies that [Mr.] Kelly is conveying his
belief or conjecture as opposed to stating fact. … Similarly, the language “[i]t’s so
troubling to me” and “I don’t think you can steal something this big and get away
with it” signifies that he was expressing personal opinions and beliefs, not making
statements of fact. 692

Even considering Newsmax’s offered context, the Court finds that Statement R meets

both elements of Colorado’s two-part test to determine whether a statement is actionable as

defamation.

Mr. Kelly introduces Mr. Ramsland by stating that Mr. Kelly agrees with the Ramsland

Report’s assertions about Dominion—“all of his concerns” about alleged vote-flipping in Antrim

County, Michigan, “unfortunately came true.” Not only are these claims capable of being

proven true or false, but a reasonable viewer would conclude that they are factual.

690
Id.
691
See id.
692
Id. at 96-97 (emphasis supplied).

128
Although Mr. Kelly uses language like “I think,” such language is not dispositive of

whether the Statement is one of pure opinion. The Court must also consider the Statement’s

context to determine whether the Statement is “mere rhetorical hyperbole, not intended to be

understood in its literal sense.” In context, a reasonable viewer would conclude that Mr. Kelly’s

statements about the Ramsland Report offer an endorsement of Mr. Ramsland’s claims in a

literal sense. Also, unlike in Keohane, none of Mr. Kelly’s statements contain speculation or

conjecture about Mr. Ramsland’s claims concerning Dominion.

As such, the Court finds that Statement R asserts facts and is not a protected opinion.

S. STATEMENT S

Statement S is from an episode of Greg Kelly Reports on December 21, 2020, where Mr.

Lindell appeared as a live on-air guest. 693

1. Excerpt from Dominion

Gorka: But now the election’s fine because their guy “won.” So, don’t investigate
anything. Nothing. … Well, we’re not going to ignore it here, because we fight for
the truth and we believe that this is still the greatest nation on God’s earth and
nobody gets to steal it from us. … One man who decided, he’s not a politician, he
doesn’t work for the president, but he’s still fighting for him and for the cause of
truth, is a man that makes my show, for example, America First on Salem Radio
possible. The great Mike Lindell…. He’s fighting for America. … Mike Lindell,
what’s going on?

Lindell: Well, I believe in this president, but – and I’ll tell you what, nobody realizes
… what America we had on election night at 11:15. You know, you talked about
all this fraud, doctoring – the biggest fraud is the Dominion machines. And at 11:15
on election night our great president –

(Talking simultaneously.)

Gorka: Mike, I don’t want to discuss. Mike. Mike. We’re not going to get into the
minutia and the details…. 694

693
See Compl. ¶ 248(s).
694
Id.

129
2. Omitted Context Offered by Newsmax

Newsmax contends that prior to Mr. Lindell appearing as a guest, Mr. Gorka “played a

short clip of testimony from a congressional hearing on December 16 where Jesse Binnall, an

attorney, testified about mail-in voting fraud and stated that in Nevada ‘[o]ver 42,000 people

voted more than once. At least 1,500 dead people are recorded as voting,’ and ‘[m]ore than

19,000 people voted even though they didn’t live in Nevada.’” 695

Before Mr. Lindell started his Statement, Mr. Gorka asked Mr. Lindell, “Why are you

fighting the legal battle for election transparency?” 696

Newsmax asserts that Dominion “splices multiple comments into one paragraph, but …

[Mr.] Gorka’s commentary was actually interspersed over two spaces of transcript. … The parts

that Dominion edited out of the paragraph provide context and show that [Mr.] Gorka’s

commentary is all protected opinion.” 697 Newsmax offers the following additional context:

[Mr.] Gorka’s sarcastic remark that the election is fine and “don’t investigate
anything,” when viewed with the portions that Dominion omitted as the Court must
do, was [Mr.] Gorka lamenting on how Robert Mueller spent $40 million of
taxpayer funds to investigate the “so-called Russian collusion with no evidence at
the end of it after 20 months of investigation,” … but there was no investigation of
the 2020 election irregularities. In [Mr.] Gorka’s comment that “we’re not going
to ignore it,” the “it” refers to the various election irregularities that [Mr.] Gorka
just cited. 698

3. Statement S Asserts Facts and Mixed Opinions

Newsmax argues that Mr. Gorka’s statements prior to introducing Mr. Lindell do not

concern Dominion, are not susceptible of being proven true or false, and contain statements that

are “merely hyperbole.” 699 Also, Newsmax asserts that Mr. Lindell’s portion of the Statement

695
Def. Mot. at 36.
696
Id.
697
Id. at 97.
698
Id. at 97-98.
699
Id.

130
cannot be attributed to Mr. Gorka, because when Lindell brought up Dominion, Mr. Gorka “cut

him off.” 700

The Court finds that Statement S meets both elements of Colorado’s two-part test to

determine whether a statement is actionable as defamation.

Mr. Gorka’s statement is a mixed opinion because implies that there are facts, unknown

to the viewer, which justify his opinions about the “truth” of the Election, and further that Mr.

Lindell is “fighting” for that “truth.”

Mr. Lindell’s statement asserts a fact capable of being proven true or false, and a

reasonable viewer would conclude that the statement is factual, especially because it occurred in

the context of answering a question about why Mr. Lindell is “fighting the legal battle for

election transparency.”

As such, the Court finds that Statement S asserts facts and mixed opinions and is not a

protected opinion.

700
Id. at 98.

131