Lawyers for San Diego-based One America News are denouncing a Denver judge in the course of appealing adverse rulings to the Colorado Court of Appeals.
In mid-May, District Judge Marie Avery Moses refused to dismiss a libel lawsuit against OAN’s parent, Herring Networks, and one of its reporters by Eric Coomer, a former Dominion Voting Systems executive.
Coomer alleges that Donald Trump allies, and OAN and OAN reporter Chanel Rion, falsely claimed that Coomer tried to rig the 2020 election for Joe Biden.
On Tuesday, the far-right outlet facing billion-dollar lawsuits said Judge Moses made a number of rulings that should be overturned.
Herring lawyers had asked her to throw out the case on First Amendment grounds, using Colorado’s anti-SLAPP law meant to protect media outlets from financial ruin.
But Moses said the Coomer case would go to trial, arguing: “There is no constitutional value in false statements of fact or the deliberate spread of dangerous and inflammatory political disinformation designed to sow distrust in democratic institutions.”
In a brief shared with a D.C. federal court, Herring lawyers Richard A. Westfall of Denver and Blaine C. Kimrey of Chicago said the Moses ruling wasn’t surprising “because it is the culmination of a pattern of bias and unfair prejudice in favor of [Coomer] that began from the moment Judge Moses took over this case.”
OAN wants the state Court of Appeals to order Moses to recuse herself — a request it also made previously.
“Judge Moses also improperly and unfairly sanctioned OAN and Rion because they raised numerous good faith evidentiary objections,” says the Herring appeal.
On a day when OAN said it would soon begin repeated airings of the debunked movie “2,000 Mules” by La Jolla’s Dinesh D’Souza, the Herring lawyers doubled down on election denialism.
“While the District Court believes [the 2020 election] to be a settled issue, many prominent political figures do not,” says the Herring brief.
“For example, news outlets have repeatedly [covered] the fact that many GOP primary winners believe the election was stolen from President Trump. … Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, recently told the January 6 committee that she still believes the election was stolen from President Trump.”
The brief added: “It is well known that a majority of House Republicans voted to challenge the Electoral College. … Thus, it was unreasonable for the District Court to conclude
OAN and Rion should have known, just days after the election, that these claims were allegedly false.”
(In yet another case — Smartmatic’s suit against Herring Networks — federal Judge Carl J. Nichols set a schedule of deadlines stretching for two years. “The Court intends to discuss a potential date for the final pretrial conference and potential trial dates at the status conference scheduled for May 15, 2024 at 10:00 a.m.,” he wrote Tuesday.)
In the Colorado appeal, OAN summarized “numerous reversible errors” by the judge — appointed to the court in 2021 by Democratic Gov. Jared Polis.
“In denying OAN’s and Rion’s anti-SLAPP motion, the District Court was focused on preconceived narratives of what happened in the national spotlight in the final months of 2020,” said the brief.
But none of that has any relevance to determining whether Coomer can present clear and convincing admissible evidence that OAN and Rion defamed him. The District Court, at Coomer’s urging, apparently wanted to make this case about something more, attempting to draw tenuous connections to the events of January 6, 2021, and the so-called “Big Lie” while advancing an unsupported narrative that the 15 defendants sued by Coomer worked in concert to carry out a conspiracy.
But at least with respect to OAN and Rion, the reality is that this case comes down to just three statements in a 12-day span alleged in the Complaint, none of which accuses Coomer of rigging voting machines or stealing the election. The District Court should have looked at those three statements and evaluated whether Coomer had presented clear and convincing admissible evidence that he could prevail on his claims related to those statements.
Because the District Court did not do that, its Order should be overturned.
OAN lawyers called Coomer an “admitted liar and Trump hater who denounced before the presidential election in 2020 anyone at his former employer who supported Trump.”
An OAN special called “Dominion-izing the Vote” quotes Coomer as saying: “Trump is not gonna win. I made f-ing sure of that.”
That remark was made by conservative media figure Joe Oltmann, who said he infiltrated an antifa conference call in which Coomer made the remark.
“Conservative media outlets including One American News Network publicized Oltmann’s claims, which Trump-associated lawyers like Rudy Giuliani and Powell pushed in post-election news conferences to sow doubt about the integrity of the election,” said The Colorado Sun.
One of Coomer’s lawyers described Oltmann’s claims as “a fraud narrative looking for a target — it was a calculated falsehood, it was not a mistake.”
Judge Moses in May also ruled that Coomer is a private figure — making it easier for him to win a defamation suit than were he deemed a public figure.
OAN wants that ruling reversed as well, calling it “mind-boggling that the District Court concluded — in summary fashion — that Coomer is not, at minimum, a limited purpose public
And Herring lawyers disputed Coomer’s contention that he was harmed by OAN reporting.
“In a single paragraph, based on no meaningful evidence, the District Court
summarily concluded that Coomer had been damaged,” their brief says.
“Coomer made conclusory assertions that (1) he can no longer perform his
prior duties for Dominion, (2) he has sought medical treatment for anxiety and
depression, and (3) his career in election services is ‘effectively over,’ causing him
to lose out on future earnings.”
But OAN called these statements “entirely unsupported and speculative. … Coomer presented no evidence that the end of his career at Dominion and in election services has anything to do with the statements about the antifa call.”
OAN says Coomer also provided no details on his “alleged medical treatment for depression and anxiety” anything “that would support a finding that he actually received medical
treatment and that his alleged condition actually had any connection to the
statements at issue here.”
Herring Networks and co-defendant Rion also are asking the Colorado appeal court to allow it to exceed its 9,500-word limit, saying “this brief comprises 18,826 words.”
Also Tuesday, Media Matters reported what it called “OAN’s commitment to airing ‘2000 Mules’ incessantly before the midterms.”
On October 4, OAN host Dan BallBall announced that OAN had acquired “the exclusive debut television rights” to the D’Souza film, with “multiple encore presentations all the way until Election Day, November 8,” said the media watchdog.
“In his interview which followed, Ball suggested that he connected D’Souza to OAN owner Robert Herring to get ‘this important film on our network so millions can see it,’ adding, ‘Everybody needs to see this; left, right, indifferent.’”
OAN’s potential audience has shrunken considerably, however.
Herring Networks continues to sue AT&T for dropping OAN from DirecTV’s channel lineup. A series of motions in that breach-of-contract case will be heard Jan. 13, 2023, by Superior Court Judge John S. Meyer.
Of more immediate concern for OAN: Its website went down about 10 p.m. Tuesday.
“Error establishing a database connection,” says oann.com.