Fox News personalities Maria Bartiromo, Lou Dobbs and Jeanine Pirro contend that they were well within the bounds of First Amendment protection as they covered ultimately false claims that Smartmatic rigged the election results against Donald Trump.
“Smartmatic’s 285-page, $2.7 billion complaint is not just meritless; it is a legal shakedown designed to chill speech and punish reporting on issues that cut to the heart of our democracy,” Bartiromo’s attorneys wrote in her response to the election systems company’s lawsuit.
Bartiromo, Dobbs and Pirro, who were named as defendants in Smartmatic’s lawsuit filed last week, join their employers Fox Corp. and Fox News in filing motions to dismiss. Two other defendants are named in the Smartmatic lawsuit, Rudy Giuliani and Sidney Powell, who have been guests on Fox News shows.
Smartmatic claims in a 285-page lawsuit that its reputation was “irreparably harmed” when some of the news personalities and guests targeted the company as responsible for rigging election results.
In their lawsuit, Smartmatic accuses the defendants, disappointed that Joe Biden and Kamala Harris won the election, of inventing the story of the company’s involvement in election fraud. Smartmatic identified 13 Fox News segments from November and December, in which on-air personalities and guests implied or stated the company “had stolen the 2020 U.S. election,” according to their complaint.
In their briefs filed on Friday, the Fox News figures call for dismissal of the Smartmatic lawsuit based on the First Amendment and New York’s anti-SLAPP law, which is designed to prevent the stifling of speech via litigation threats. They make arguments similar to those that Fox News made earlier this week. They are all represented by the same firm representing the network, Kirkland & Ellis, including Paul Clement, who was solicitor general under George W. Bush.
Bartiromo interviewed Trump on Nov. 29, in what was his first interview since the election. In their lawsuit, Smartmatic contends that she “joined Mr. Giuliani and Ms. Powell in claiming that Smartmatic had stolen the 2020 U.S. election from President Trump. Ms. Bartiromo joining the conspiracy would help her obtain more exclusive interviews with President Trump (in and out of office) as well as individuals and companies who supported President Trump. Indeed, Ms. Bartiromo’s decision to join the conspiracy paid off.” Smartmatic noted that Bartiromo was among the news personalities tapped to rotate as one of the opinion hosts on the show Fox News Primetime.
In Bartiromo’s case, her attorneys argue that Smartmatic’s lawsuit “acknowledges that Bartiromo pressed the President’s lawyers for evidence, repeatedly reminded viewers that the President’s lawyers needed to back up their claims with proof, and interviewed guests who were skeptical or dismissive of the claims the President and his legal team were pressing.”
Bartiromo’s attorneys contend that Smartmatic failed to allege that she engaged in actual malice, an ingredient for proving defamation claims. They wrote that the “theory of actual malice is a non-starter under settled First Amendment precedent, which squarely holds that even in the context of news reporting, the ‘failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard.'”
Dobbs’ show, Lou Dobbs Tonight, was dropped from the Fox Business lineup last week, one day after Smartmatic filed its lawsuit.
In his brief, his attorneys said that Dobbs “informed viewers that Smartmatic had denied some of the allegations against it and often asked his guests if they could substantiate their claims.”
Smartmatic claimed that Dobbs, a staunch defender of Trump’s, made his own false statements about the company. They argued that in his own statements, he “took the initiative and contributed additional falsehoods to the narrative by telling people that Smartmatic and Dominion [another voting systems company] sent votes out of the country so the voting is not auditable. He had no evidence of this assertion, and Secretaries of State had stated the opposite, but that was another aspect of the false narrative that Defendants ultimately wanted to spread.”
In Dobbs’s brief, attorneys defended his statements as those made on “an opinion show where Dobbs frequently offers stimulating opinion and commentary on partisan politics.” They wrote that “a reasonable viewer would understand that Dobbs was not stating actual facts about Smartmatic, but at most offering his opinion that the partisan and heavily disputed allegations made by Giuliani, Powell, and the President’s allies might have merit and should be taken seriously.
“Dobbs himself indicated in many instances that he was offering only an opinion on the need to thoroughly investigate the allegations; for example, after listening to Powell, Dobbs opined that it ‘almost seems like … probable cause for a complete and thorough investigation.'”
The attorneys added that the “vast majority of Dobbs’ challenged statements are constitutionally protected opinions, not statements that are provably false.”
In Pirro’s case, her attorneys noted that Smartmatic is challenging two segments on her show, one an interview with Powell and the other a “monologue” on claims that Powell and Giuliani made in a November press conference. “A reasonable viewer of either program would have understood that the information Pirro was imparting was the fact that the President, Giuliani, and Powell were making certain allegations—not that those allegations were necessarily true,” the brief stated.
The Bartiromo, Dobbs and Pirro briefs also noted that Fox News ran a segment on their shows featuring Eddie Perez, an election security expert, in which he fact-checked and refuted claims made on the network. The segment was run after Smartmatic fired off a legal threat to the network, asking for a retraction.
In the motions to dismiss, the attorneys also accused Smartmatic of filing their lawsuit to make up for financial losses.
“Smartmatic’s headline-seeking, multi-billion-dollar lawsuit thus should be seen—and rejected—for what it is: an unconstitutional attempt by a money-losing company (Smartmatic reported $17 million in losses on just $144 million in revenue in 2019) to try to fill its coffers at the expense of our constitutional traditions,” they wrote.
Smartmatic’s lead attorney, J. Eric Connolly of Benesch Friedlander Coplan & Aronoff LLP, said in a statement, “Smartmatic is confident in its case and looks forward to briefing these issues for the Court.”
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