Exclusive: St. Louis Judge rules against The Gateway Pundit, clearing way for jury trial
A judge overseeing pre-trial proceedings in the defamation case by two Georgia poll workers against Jim Hoft, the publisher of the far-right website The Gateway Pundit, has cleared the way for a jury trial to proceed next year by handing the lawyers for the two women a pair of crucial victories.
St. Louis Circuit Judge Michael Stelzer dismissed a counterclaim July 24 that was filed by Hoft’s defense team in January alleging that the party truly defamed in the case was actually Hoft, through various public statements made by some of the women’s lawyer. Stelzer also dismissed a motion Hoft’s lawyers had filed in April to terminate the whole case on the grounds that it represented an attack on free speech. Both dismissals had been sought in motions by the two women’s lawyers that were the subject of a July 13 court hearing.
The first ruling closes off a strategy the defendants could have used to muddy the case and at the very least delay it. The second closes off a strategy to kill it.
At the heart of the case is the accusation by Ruby Freeman and her daughter Wandrea “Shaye” Moss that they were falsely – and repeatedly– accused by The Gateway Pundit of having helped rig the vote-counting in Georgia against Donald Trump in 2020. Death threats and other harassment against them followed.
In a separate case in federal court in Washington, D.C. Rudy Giuliani admitted this week that he had made “false” statements about the poll workers in his role representing former President Donald Trump. But Giuliani said he still thought he had legal defenses under the First Amendment.
High-powered Dowd Bennett represents poll workers
The Gateway Pundit is a far-right website owned and operated by St. Louisan Jim Hoft. His identical twin brother, Joe, of Florida, is a contributor to the site and also a defendant in the case.
Freeman and Moss are represented in the St. Louis case by a high-powered legal team made up of private law firms – including St. Louis’s Dowd Bennett – and nonprofit organizations, including United to Protect Democracy Inc., of Washington, D.C. and New York, and the Media Freedom & Information Access Clinic at the Yale Law School. The Gateway Pundit is represented by a St. Louis solo practitioner, John C. Burns, and by a Las Vegas lawyer, Marc Randazza, whose past clients have included Alex Jones, and one of Randazza’s partners.
In his ruling about the counterclaim, Stelzer listed all seven of the statements that The Gateway Pundit’s lawyers claimed had defamed Hoft. The statements were made in such places as the website of United to Protect Democracy, Twitter, and an NPR interview. Here is one example, a statement attributed to attorney Brittany Williams on the protectdemocracy.org website:
“Lies like those that The Gateway Pundit knowingly told about Ruby Freeman and Shaye Moss cannot be divorced from the devastation they leave behind – both for the targeted individuals and for our democracy itself.”
The lawyers for the two women argued that such statements simply echoed their pleadings in the case. So the counterclaim, they asserted, was really just an attempt to dismiss the case itself as a “malicious prosecution” against their clients, the two women.
The judge agreed. “The Court finds that while the Counterclaim purports to allege defamation, it is nonetheless in the nature of a claim for malicious prosecution,” he wrote.
Like climbing Mount Everest
Michael A. Kahn, a First Amendment expert who is senior counsel for the St. Louis law firm of Capes Sokol, commented that by invoking malicious prosecution, the judge was placing the counterclaim in a category that “is the legal equivalent of climbing Mount Everest.”
Kahn, who is not involved in the case, said: “For the Gateway Pundit to actually prevail on such a claim, it would have to first defeat the plaintiffs in this lawsuit and then prove that the plaintiffs: (a) had no reasonable basis for filing their lawsuit; and moreover, (b) had malicious intent in filing their lawsuit. As a matter of policy, lawsuits for malicious prosecuting have, in the words of the Missouri Supreme Court, ‘never been favorites of the law.’ So the Judge’s dismissal of that claim essentially sounds the death knell for any contention of libel by the Gateway Pundit.”
The other motion to dismiss that Stelzer granted related to an “anti-SLAPP” motion the Hofts’ lawyers filed in April. SLAPP stands for “strategic lawsuits against public participation.” Anti-SLAPP laws have been enacted in a number of states, including Missouri and – relevant to this case – Georgia, to protect against suits that seek to intimidate or silence critics by loading them up with expensive litigation. For example, Kahn noted, a news organization can use an anti-SLAPP statute to protect itself from the financial threat of a groundless defamation case brought by the wealthy subject of an investigative story.
The attorneys for the Hofts acknowledged, Stelzer noted, that the Missouri anti-SLAPP law doesn’t apply to their complaint because it applies only to statements made at a public hearing or public meeting, not what’s written on a website like The Gateway Pundit. But the defendants argued back in April that Georgia’s anti-SLAPP suit ought to be the one considered relevant, because the two women live in Georgia and “Georgia has the most significant relationship to this dispute.” And Georgia’s more expansive anti-SLAPP law, they argued, provides a “substantive right” to the kind of free expression The Gateway Pundit employed in writing about the women.
A substantive right is a right, like free speech, that is considered a legal entitlement. Substantive law is contrasted to “procedural law,” which relates to how the legal system operates.
The distinction is crucial because Missouri permits the application of another state’s substantive law in situations where there are conflicts, but not the substitution of another state’s procedural laws for its own. And Stelzer ruled that Georgia’s anti-SLAPP law is merely procedural. Quoting from one of several precedents to that effect, he wrote: “The [Georgia] anti-SLAPP statute ‘creates no substantive rights; it merely provides a procedural mechanism for vindicating existing rights.’”
So the Georgia law is irrelevant, he concluded, because Missouri follows its own procedural laws.
Kahn, for one, found the judge’s reasoning persuasive. Both his rulings concerning the counterclaim and the anti-SLAPP motion are “on solid grounds that will be extremely difficult to challenge on appeal,” he said.
The case was originally scheduled to be tried beginning next Feb. 19. Since then, however, there have been numerous delays relating to disputes over pre-trial discovery and motions like the ones Stelzer just ruled on. His rulings eliminate the last major hurdles; meanwhile, recent recommendations by a court-appointed special master will expedite the taking of depositions and the production of information requested by the plaintiffs. But both sides agree that the trial date will need to be pushed back. The new date has not yet been set.
Paul Wagman is a former Post-Dispatch reporter and FleishmanHillard executive who is now an independent reporter, editor and communications consultant.