by Jason Hancock, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]

April 17, 2023

They didn’t know it at the time, but Dec. 3, 2020, was the start of a nightmare for Wandrea Moss and her mother, Ruby Freeman.

Both were election workers in Atlanta, and that was the day Rudy Giuliani — ex-New York mayor and adviser to former President Donald Trump — testified to a state Senate committee that Georgia election officials had counted illegal ballots to steal the presidency for Joe Biden.

The allegations were quickly debunked by government officials and the media, but they still reverberated through right-wing media outlets.

Later that day, the Gateway Pundit, a St. Louis-based site run by brothers Jim and James Hoft, identified Freeman as one of the election workers accused of producing and counting 18,000 hidden, fraudulent ballots from a suitcase.

“What’s Up, Ruby,” the site’s headline read that day. “BREAKING: Crooked Operative Filmed Pulling Out Suitcases of Ballots in Georgia IS IDENTIFIED.”

A month after the initial allegations, Trump himself singled out Freeman by name in a call with Georgia officials pressing them to alter the state’s election results. The Gateway Pundit bragged in an article about the call that the site was “first to identify” Freeman and Moss in the “suitcase fraud scandal that was caught on tape and went viral online.”

The former president’s supporters went on the attack.

Freeman and Moss say they were almost immediately bombarded with threats of violence, many tinged with racial slurs. Under advice from the FBI, Freeman says she had to flee her home. On Jan. 6, 2021 — the day of the insurrection at the U.S. Capitol — Freeman said her home was surrounded by Trump supporters shouting through bullhorns.

Moss says strangers tried to get into her grandmother’s home to make a “citizen’s arrest.”

Gateway Pundit would go on to publish numerous stories about Freeman and Moss, with headlines like: “WHERE’S BILL BARR? — We Got Your Voter Fraud AG Barr — It’s On Video and They Attempted to Steal Georgia with It! — HOW ABOUT A FEW ARRESTS?”

“It’s turned my life upside down,” Moss testified last year to the House committee investigating the Jan. 6 attack on the U.S. Capitol.

Freeman and Moss say the Hofts never responded to a letter demanding they retract and take down the stories. So in December 2021, the women filed a lawsuit in St. Louis Circuit Court against The Gateway Pundit for defamation and emotional distress.

It’s scheduled for a jury trial on May 9.

The lawsuit against The Gateway Pundit is one of a smattering of defamation claims across the country against media companies and other figures accused of peddling misinformation about the 2020 election.

The most high profile is headed to trial this week, when Fox News will try to convince a jury it should not have to shell out $1.6 billion to Dominion Voting Systems, which alleges the cable news giant damaged its reputation by promoting phony claims that it rigged the 2020 presidential election by flipping millions of votes from Trump to Biden.

The judge in the case has already ruled that jurors will be instructed that those claims are false.

While the potentially landmark defamation case against Fox has drawn national attention, the lawsuit against The Gateway Pundit has quietly chugged towards trial without nearly as much attention. Most of the coverage of the case has appeared in the Gateway Journalism Review.

Yet both cases could have long-lasting consequences, said Daxton Stewart, a journalism professor specializing in media law at Texas Christian University.

“You’re dealing with publishers trafficking in conspiracy theories, ones they know or should know to be entirely bogus,” Stewart said. “They’re making factual statements that are demonstrably false, and that causes real harm to people.”

For their part, the Hofts deny that they ever knowingly fabricated or disseminated blatantly false stories about Freeman or Moss. And in January, the brothers filed a countersuit claiming they were in fact the ones who were being defamed.

The Hofts “believed (and still believe) that the 2020 election did not reflect the will of the voters,” the counterclaim states.

‘Actual malice’

In the nearly two decades since its founding, The Gateway Pundit has spread debunked conspiracies on a wide range of topics, from the 2018 Parkland school shooting to former President Barack Obama’s birth certificate. It’s helped proliferate lies about the brutal attack on former House Speaker Nancy Pelosi’s husband and made false claims about U.S. aid money sent to Ukraine.

But its biggest focus in recent years has been promulgating lies about election fraud.

Jim Hoft was banned from Twitter last year after repeatedly promoting falsehoods about the 2020 presidential election, though he was reinstated after Elon Musk purchased the social media company.

The Missouri attorney general’s office last year added Hoft as a co-plaintiff in its lawsuit alleging the federal government colluded with social media companies to suppress freedom of speech.

In their response to the defamation lawsuit, the Hofts argued that any stories published by The Gateway Pundit regarding Freeman and Moss were “either statements of opinion based on disclosed facts or statements of rhetorical hyperbole that no reasonable reader is likely to interpret as a literal statement of fact.”

Rhetorical hyperbole, the Hoft’s response states, “cannot form the basis of defamation and related tort claims.” The plaintiffs are “limited purpose public figures,” the Hoft’s argue, and thus must prove actual malice to claim defamation.

The Hoft’s are referring to the legal standard set in a 1964 U.S. Supreme Court decision in the case of New York Times v. Sullivan that found public officials must establish actual malice — or reckless disregard of the truth — before recovering defamation damages.

That’s a high bar to clear, said Samantha Barbas, a professor of law at the University of Buffalo who has written a book on the history of New York Times v. Sullivan. If Moss and Freeman were considered to be private figures, Barbas said, they would only have to show that the statements made by The Gateway Pundit were made with carelessness or negligence.

“However,” she said, “the courts have interpreted public figure broadly, so that someone who responds to a defamatory allegation could potentially be considered a public figure, since they ‘put themselves in the spotlight’ when they responded to the accusation.”

Does reputation matter?

Stewart said The Gateway Pundit may have an advantage in fending off defamation charges that Fox News does not.

While Fox has been decried as biased in favor of Republicans, and has peddled its share of debunked conspiracy theories, it is still largely considered a news operation.

While Gateway Pundit thrived under Trump — it was even granted White House press credentials — it has always existed largely in the fringes of the right-wing media ecosphere.

“You have these conspiracy theorists who try to have it both ways,” Stewart said. “They try to traffic in things they know are false or not plausible, whether it’s a vaccine denial, or you know, election fraud or space aliens. So they use that like plausible deniability. But they also want to be seen as credible.”

In a defamation lawsuit, Stewart said, “would a jury think that they are capable of making a credible statement?”

Barbas, however, said The Gateway Pundit’s reputation shouldn’t matter.

“The question is, what did the publisher know about the facts at the time the statement was published?” she said. “If the publisher continues to repeat false statements after finding out that they are false, that is an example of reckless disregard.”

Moss and Freeman’s lawsuit seeks compensatory and punitive damages, as well as legal costs. It also asks a judge to declare that the statements published by the website are false and to order the false and defamatory statements removed from any website or social media accounts the Hofts control.

Among the attorneys representing the Georgia election workers is John Danforth, former Republican U.S. Senator from Missouri.

The women have also sued Giuliani, who was deposed in that case last month, and the right-wing cable news channel One America News Network, which settled last year and agreed to say on air that there was “no widespread voter fraud by election workers” in Georgia in 2020 and that Moss and Freeman “did not engage in ballot fraud or criminal misconduct.”

In their counterclaim, the Hofts argue the defamation lawsuit against them is solely intended to drive The Gateway Pundit out of business.  The Hofts are represented by the Las Vegas law firm of Marc Randazza, who in the past has represented numerous far-right figures, including Alex Jones of InfoWars and Andrew Anglin of the neo-Nazi website the Daily Stormer.

“It is a form of political lawfare,” the Hofts’ counterclaim states, “and lacks legal

merit.”

This story first appeared in States Newsroom sibling site Missouri Independent.

Georgia Recorder is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor John McCosh for questions: info@georgiarecorder.com. Follow Georgia Recorder on Facebook and Twitter.