Smartmatic and Fox News are each asking a New York judge to rule in their favor in the election systems company’s $2.7 billion defamation lawsuit against the network.
Smartmatic sued the network four years ago, claiming that its hosts and guests amplified claims that the company was involved in rigging the 2020 presidential election. Fox has maintained that its coverage of President Donald Trump‘s claim that the election was stolen from him was protected by the First Amendment.
Each side is asking the judge, David Cohen, to grant them summary judgment, or a ruling that would either avert a trial or render a decision on major claims before it goes to a jury.
In its filing on Wednesday, Smartmatic’s attorneys wrote that in the aftermath of the 2020 election, Fox News executives, alarmed at a drop in the ratings, did a “pivot” to win back the loyalty of their viewers by boosting claims that the election was fraudulent.
Smartmatic’s attorneys wrote, “Under the guise of ‘respecting the audience,’ and cynical justification of ‘newsworthiness,’ Fox News systematically promoted the inflammatory and false narrative that Smartmatic—smeared as a dirty Venezuelan company—had deployed software throughout the United States to steal votes from President Trump.”
Smartmatic also argued that they should be granted summary judgment on whether Fox engaged in “actual malice,” the high threshold that public figure plaintiffs have to clear for proving defamation claims.
“Hardly a person, if anyone, at Fox believed the claims they were broadcasting. Executives, producers, and hosts did not believe that widespread voter fraud had occurred,” the company’s attorneys wrote. “Their own fact-checking efforts disproved the accusation. They also believed guests appearing on their shows to discuss the accusation were nuts, crazy, and unreliable. In private, and in depositions, the Fox Defendants acknowledge that they never thought voting machines has rigged the 2020 election, but they promoted that message nonetheless during the publications to woo back their audience.”
Read Smartmatic’s summary judgment brief.
The Smartmatic filing in particular was heavily redacted, as both sides had entered into an agreement to keep specific discovery findings confidential. That is a contrast to a separate defamation lawsuit filed by Dominion Voting Systems against Fox. In the months leading up to that case’s 2023 trial date, a trove of discovery emails and other internal documents were made public, drawing headlines as it showed that major Fox figures had doubts over claims by Trump and his allies that the election was stolen from him. Just after a jury was selected, Fox settled the lawsuit with Dominion for $787.5 million.
Also named in Smartmatic’s lawsuit are Maria Bartiromo, Jeanine Pirro and Debi Dobbs, the administrator of the estate of Lou Dobbs, who died last year. Fox Corporation also is a defendant.
In its filing, Fox’s legal team argued that the Smartmatic case was much different than the Dominion lawsuit.
“Unlike Dominion, Smartmatic was a failing business without a significant presence in the United States entering the 2020 Presidential Election,” Fox’s legal team wrote. “Unlike Dominion, Smartmatic was mired in a decade of business failure due to inadequate technology, missing certifications, and involvement in multiple highly controversial elections. Unlike Dominion, Smartmatic was founded by Venezuelans and was embroiled in claims of fraud in Venezuelan and Filipino elections well before any controversy arose over the 2020 Presidential Election.”
In arguing that the company’s reputation was already tarnished, Fox noted that Smaertmatic’s co-founder and key leadership were under federal investigation and are now facing trial for bribery and money laundering.
Last year, a federal grand jury in Florida indicted Smartmatic executives on allegations related to a bribery scheme in the Philippines. Smartmatic said that the employees indicted were placed on leave. “No voter fraud has been alleged and Smartmatic is not indicted,” the company said at the time.
Fox attorneys also wrote that Smartmatic’s case was being “bankrolled by left-wing billionaire activist Reid Hoffman” and claimed that he was “unapologetically using this case to attempt to silence Fox News.”
Fox’s legal team also called Smartmatic’s damages claim “pure fiction.”
“In the weeks following the election, President Trump’s lawyers vigorously and publicly challenged the results, citing concerns about absentee ballots, mail-in voting, poll watchers, electronic voting machines, and more. While pursuing those challenges, two of the President’s lawyers made claims about Smartmatic and its Venezuelan origins. Smartmatic seized on those allegations as a financial lifeline. It manufactured a defamation lawsuit claiming to be a highly reputable company worth more than $2.7 billion and poised to win dozens of contracts in the U.S. and around the world.”
Fox also argued that Smartmatic had failed to show that its employees acted with “actual malice.”
The company’s attorney’s wrote, “The 192 statements that Smartmatic challenges must be evaluated independently, and many of the individual challenged statements are non-actionable because they do not satisfy an element of the defamation tort. But all of them fail because an examination of those statements in context confirms that a reasonable viewer would have understood the Fox News shows at issue to accurately convey what the President was claiming (and still claims) concerning the results of the 2020 Election. That is not defamatory.”
Fox is seeking a ruling affirming its counterclaim under New York’s anti-SLAPP law, which is designed to curb frivolous defamation lawsuits as a way to intimidate individuals and news outlets, among others.
J. Erik Connolly, attorney for Smartmatic, said in a statement, “Fox cannot justify its month-long smear campaign against Smartmatic. Everyone from the Murdochs to the show producers knew they were pushing baseless claims. So, Fox is piling new lies on top of its old ones to try to persuade shareholders that its financial exposure is less than the $780 million paid to Dominion. It is not. It is much more. Fox will be held accountable. Fox’s motion is a distraction, not a defense.”
Smartmatic settled defamation lawsuits it filed with Newsmax and One America News Network.
