Of course the CNN article is not going to give the

Posted on: March 24, 2021 at 18:10:16 CT

proper context of the argument (a motion to dismiss - in which the court must assume the well pled facts are true and decide if there is a legally cognizable claim as a matter of law) or fair description of the legal argument being made:


Read the whole thing, but on that particular point, here is a gist of the argument:

https://www.courthousenews.com/wp-content/uploads/2021/03/3-22-21-sidney-powell-defending-the-republic-motion-to-dismiss-dominion.pdf

"In short, the speech at issue here is not actionable. As political speech, it lies at the core of
First Amendment protection; such speech must be “uninhibited, robust, and wide-open.” N.Y.
Times Co., 376 U.S. at 270. Additionally, in light of all the circumstances surrounding the
statements, their context, and the availability of the facts on which the statements were based, it
was clear to reasonable persons that Powell’s claims were her opinions and legal theories on a
matter of utmost public concern. Those members of the public who were interested in the
controversy were free to, and did, review that evidence and reached their own conclusions—or
awaited resolution of the matter by the courts before making up their minds. Under these
circumstances, the statements are not actionable. Keohane, 882 P.2d at 1299; NBC Subsidiary, 879
P.2d at 11, 12; Milkovich, 497 U.S. at 20."


This prior passage of the brief sets forth what they contend to be the law (they argue Colorado law is controlling):

In Keohane, the Colorado Supreme Court identified a two-step inquiry to determine
whether a statement is protected. The first is whether the statement is “sufficiently factual to be
susceptible of being proved true or false.” Id. (quoting Milkovich, 497 U.S. at 20). The second is
whether “reasonable people” would conclude that the assertion is one of fact. Id. “The factors
9
Whether a statement involves a matter of public concern is a question of law to be resolved
on a case-by-case basis. Examination of Bd. Of Prof. Home Inspectors v. Int’l Ass’n of Certified
Home Inspectors, 221 U.S. Dist. LEXIS 25274, at *21 (D. Colo. Feb. 10, 2021).
Case 1:21-cv-00040-CJN Document 22-2 Filed 03/22/21 Page 31 of 54
22
relevant to the second inquiry 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.” Id.
(citing Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351, 1360 (Colo. 1983)).
Of particular importance in evaluating the actionability of a statement is whether the
underlying facts on which it is based have been disclosed. In NBC Subsidiary, decided the same
day as Keohane, the Colorado Supreme Court applied this test in determining that two broadcasts
stating that the plaintiff’s living-will package was a “scam,” and that plaintiff’s customers had
been “totally taken” were not actionable. 879 P.2d at 7-8. Discussing the United States Supreme
Court’s decision in Milkovich, the Colorado Supreme Court noted that the statements were based
on facts disclosed during the broadcasts. The Court thus concluded:
[Milkovich] unquestionably excludes from defamation liability not
only statements of rhetorical hyperbole – the type of speech at issue
in the Bressler-Letter Carriers-Falwell cases – but also statements
clearly recognizable as pure opinion because their factual premises
are revealed. Both type of assertions have an identical impact on
readers – neither reasonably appearing factual – and hence are
protected equally under the principles espoused in Milkovich.
Id. at 12 (brackets in original) (citing Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d
724, 731 n.13 (1st Cir. 1992)).

Edited by MUTGR at 18:16:28 on 03/24/21