a. True the Vote’s public communications

The trial evidence shows that TTV issued a series of public statements—in written press releases or on podcasts hosted by Engelbrecht—that discussed ensuring ballot integrity, recruiting military veterans and former law enforcement officers as poll watchers, establishing a whistleblower fund for reports of fraud, and challenging more than 360,000 voters in Georgia under Section 230. See, e.g., PX 25; PX 26; PX 35; PX 37; PX 42.

The Court finds the recent Wohl summary judgment decision to be particularly persuasive in its analysis of TTV’s public communications, namely for its differences to the instant case. Wohl found undisputed evidence of voter intimidation under Section 11(b) when defendants made Robocalls to voters that warned of “several specific and foreboding consequences of voting by mail.” Wohl, 2023 WL 2403012, at *20. Here, rather than direct specific phone calls at voters, TTV issued large scale press releases and hosted a publicly available podcast both of which were accessible by anyone. Hence TTV’s actions were not directed at any particular voter. A direct call to a voter’s phone number communicating “specific and foreboding consequences” for voting is categorically differently from a public social media announcement or a podcast episode that did not mention any voters by name, identify personal information of any voter, or convey any adverse consequences for voting.

Moreover, none of the challenged voters who testified at trial indicated that they saw or heard TTV’s public communications.74 Nor had they been contacted by TTV or any of its representatives. Tr. 104:6–105:22 (Berson); Tr. 582:24–583:4 (Heredia); Tr. 464:5–465:24 (Stinetorf); Tr. 235:3–236:10 (Turner). Sure, a few voters testified that they had heard about the mass challenges in their counties through news reports. See, e.g., Tr. 95:21–96:23 (Berson). But there is no evidence that TTV reached out to these newspaper outlets, made any county-level specific attempts to broadcast the names of voters on its lists itself, or otherwise attempted to make the challenged voters’ names known. See Section (II)(C)(1)(c)(3) supra.75

Finally, the Court has First Amendment concerns about finding TTV’s announcements made in public social media forums to be illegal in this case.76 For sure, the First Amendment does not protect all speech. And relevantly, “[t]rue threats of violence, everyone agrees, lie outside the bounds of the First Amendment’s protection.” Counterman v. Colorado, 600 U.S. 66, 72 (2023).

Plaintiffs, however, have not shown Defendants’ statements are true threats because there is no evidence they were intended to be violent, or made with a mens rea of at least recklessness.77 While Plaintiffs submitted evidence of TTV’s recklessness in making the Section 230 challenges, they have submitted no similar evidence of recklessness in TTV’s public communications and social media posts.78 Thus, the First Amendment reinforces a conclusion that TTV is not liable under Section 11(b) for its public social media posts.