Ex-Dominion exec prevails in another defamation appeal | Courts

For the second time in under a month, a former executive for Denver-based Dominion Voting Systems has moved forward in his efforts to hold liable those who amplified unproven allegations that he, personally, rigged the 2020 presidential election against Donald Trump.

Last year, a federal trial judge agreed Eric Coomer, the director of product strategy and security for Dominion, was likely to prevail on his claims that Oklahoma podcaster Clayton Thomas “Clay” Clark and his “Thrivetime Show” had defamed him repeatedly.

On Tuesday, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit rejected the defendants’ appeal, clarifying for the first time that Colorado’s state law protecting speech rights does not provide the type of immunity in federal defamation cases that is immediately appealable.

Coomer has initiated multiple defamation suits based on allegations made against him by conservative Colorado podcaster Joe Oltmann. Days after the presidential election, Oltmann claimed he had recently listened in on an “antifa” conference call — a reference to anti-fascist ideology.

On the alleged call, an unnamed participant referenced “Eric … the Dominion guy.” Oltmann claimed “Eric” said, “Don’t worry about the election, Trump is not gonna win. I made f-ing sure of that.”

Oltmann then conducted his own “investigation” by Googling the terms “Eric,” “Dominion,” and “Colorado.” Based on limited other information found online, he concluded Coomer was the one who allegedly made the comments of election rigging. Oltmann repeated his story publicly, including on other conservative outlets, even after the Cybersecurity & Infrastructure Security Agency found “no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.”

Earlier this month, the state’s Court of Appeals ruled Coomer’s defamation claims could move forward in state court against the Trump campaign and others who played a role in spreading the incendiary, unverified allegations, “whether for entertainment purposes or to bolster their claims of election irregularities more generally.”

Separately, Coomer sued Clark after Oltmann appeared on his Thrivetime Show in December 2020, in an episode entitled “Exposing the Treasonous Eric Coomer.” 

“Remember this,” Clark told listeners, “the director of strategy and security at Dominion Voting Systems is in fact a member of the America-hating antifa group.”

Clark subsequently embarked on a “ReAwaken America Tour,” which continued to promote Oltmann’s unverified account. Coomer referenced several screenshots of social media posts that called for his death or execution, including a message from Oltmann that said, “Eric we are watching you,” along with a picture of Coomer’s house.

Coomer claimed Clark and Thrivetime were liable for defamation and intentional infliction of emotional distress, both for calling him a traitor and for endorsing the comments of Oltmann, who is not part of the suit.

The defendants moved to dismiss under Colorado’s anti-SLAPP law, which stands for “strategic lawsuits against public participation.” The legislature enacted the law in 2019 to provide judges a means to quickly dispense with litigation that stems from a defendant’s First Amendment rights, specifically to speech and to petition the government.

Last year, U.S. District Court Senior Judge William J. Martínez refused to dismiss the case, finding Coomer had submitted “compelling evidence” that he would likely prevail.

“This includes evidence tending to show not only that the election fraud as alleged by Oltmann was technically impossible, but also that the claim of Dr. Coomer’s involvement in the September conference call was supported by fabricated evidence,” Martínez added.

Although Colorado’s anti-SLAPP law gives parties the ability to appeal directly to the state Court of Appeals, Coomer argued the 10th Circuit could not immediately hear the defendants’ federal interlocutory appeal — meaning one that occurs before a case is final. Among other things, an interloctory appeal needs to resolve “important questions separate from the merits.”

The defendants maintained Martínez’s decision was not about the merits. They likened the anti-SLAPP statute to the concept of qualified immunity, where government officials are shielded from lawsuits unless they violate a person’s clear legal rights. Colorado’s anti-SLAPP law, they contended, also provides immunity. Therefore, as with appeals in qualified immunity cases, federal courts can immediately hear anti-SLAPP decisions on appeal.

During oral arguments in January, the 10th Circuit panel was doubtful.

“Generally, immunity is totally separate from the merits. It’s, ‘I can’t be sued because I’m a government employee.’ Or ‘I’m a judge, so you can’t sue me’,” said Judge Harris L Hartz. “Those have nothing to do with the merits. The judge may have totally screwed up. But you can’t sue the judge.”

The appellate panel, recognizing other circuit courts around the country endorsed the defendants’ position, nonetheless declined to find Colorado’s anti-SLAPP law provides the type of immunity that enables immediate appeals. Instead, courts make an “early assessment about the merits” of defamation cases.

“Orders denying anti-SLAPP special motions to dismiss necessarily involve fact weighing and thus cannot be completely separate from the merits,” wrote Judge Gregory A. Phillips in the April 23 opinion.

First Amendment attorney Tom Kelley agreed the concept of qualified immunity was not equivalent to an anti-SLAPP motion, but also acknowledged other federal circuits have said otherwise when interpreting different states’ anti-SLAPP laws.

“There’s always an interest in uniformity,” he said. “Would the Supreme Court take (the case) to make the law uniform in that area? I’d say, unlikely.”

The case is Coomer v. Make Your Life Epic LLC. et al.