Election Senate Runoff

A worker passes a Dominion Voting ballot scanner while setting up a polling location at an elementary school in Gwinnett County, Ga., outside of Atlanta on Jan. 4, 2021, in advance of two Senate runoff elections. 

A federal judge has refused to dismiss a defamation lawsuit brought by a former Dominion Voting Systems executive against an Oklahoma podcaster who spread unproven statements about election-rigging in the wake of the 2020 presidential race.

Eric Coomer, the former director of product security and strategy for voting technology supplier Dominion, sued Clayton Thomas "Clay" Clark and his "Thrivetime Show" podcast for promoting the rumor that Coomer allegedly confessed to ensuring former President Donald Trump would not win reelection. Those assertions of "treasonous behavior" resulted in death threats against Coomer, who lives in Colorado.

On Tuesday, U.S. District Court Senior Judge William J. Martínez denied the defendants' motion to dismiss the lawsuit. Clark and Thrivetime argued they had "every reason to believe" the dubious allegations about Coomer, and the lawsuit could not survive because it stemmed from their protected First Amendment activity. But the judge found "no real dispute" that some of the defendants' comments about Coomer amounted to defamation.

"Plaintiff has presented evidence that Defendants, for a period of at least a year, repeatedly accused Dr. Coomer (or amplified others’ accusations) of the crimes of election fraud and treason, that they did so in reckless disregard of the truth, and that they persisted in these accusations even after a point in time when they reasonably should have known of the death threats Plaintiff had received," Martínez wrote in a March 7 order.

Following Trump's 2020 loss, Denver-based Dominion was ensnared in allegations that it was involved in a conspiracy to rig the election. The company fought back against its accusers, recently describing in a lawsuit against Fox News that network employees privately deemed the allegations "bs."

Coomer has also filed multiple lawsuits against conservative personalities for conspiracy theories implicating him.

The litigation pending before Martínez centers around Colorado podcaster Joe Oltmann, who has openly talked about hanging politicians and "traitors." Oltmann appeared on the 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," a reference to anti-fascist ideology.

Oltmann told Clark about allegedly listening in on an "antifa" conference call in which Coomer was present and purportedly said, "Trump is not gonna win. I made f----ing sure of that. Hahahaha."

"You have these people like Eric Coomer that are attempting to overthrow what appears to be the will of the people by switching the votes," Clark responded. He added that Oltmann was "exposing the truth" and Coomer "actually said that."

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

Coomer then sued Clark and Thrivetime 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.

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"After more than fifteen years as a respected professional at the top of his field, Dr. Coomer’s reputation has been irreparably tarnished," Coomer's attorneys wrote. "He can no longer work in the elections industry on account of the unwarranted distrust inspired by defendants’ lies, and instead now endures frequent credible death threats and the burden of being made the face of an imagined criminal conspiracy of unprecedented scope in American history."

Clark and Thrivetime moved to dismiss the lawsuit 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.

Clark and Thrivetime argued the allegedly false statements were either "substantially true," not directed at Coomer or were otherwise opinions. They also repeatedly called Coomer a "liar."

MartĂ­nez initially agreed with the defendants that their comments and those of Oltmann implicated the First Amendment, as they pertained to the presidential election and were not aimed solely at Coomer as a private citizen.

However, he believed Coomer would likely succeed in proving his overall allegations that Cark and Thrivetime promoted false statements about him maliciously.

"Defendants repeatedly invited Oltmann onto the ThriveTime Show podcast and to Tour events, and Defendants themselves knowingly published statements suggesting Dr. Coomer committed the crimes of election fraud and treason," Martínez wrote.

The defendants also appeared to act recklessly, Martínez continued, by bringing Oltmann onto the podcast to make his accusations after he insinuated on social media that he was surveilling Coomer's house.

"Plaintiff has submitted evidence to show that he has endured credible fear for his own life and the lives of his family, in addition to suffering significant anxiety and depression," decided Martínez.

Attorneys for the defendants said they look forward to "further defending our clients’ fundamental rights of free expression." Lawyers for Coomer did not respond. 

Previously, a state judge in Denver denied an anti-SLAPP motion in another defamation lawsuit brought by Coomer. The allegations similarly center around the attempts to tie Coomer to the purported "antifa" phone call, which the judge deemed likely false. Oltmann is one of the defendants.

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

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