Fox News filed another response to Smartmatic’s $2.7 billion defamation lawsuit, contending that its on-air personalities were protected by the First Amendment as they amplified President Donald Trump’s unfounded allegations of massive election fraud following the 2020 presidential election.
“Smartmatic strains to make this lawsuit seem like a garden-variety defamation suit rather than a glaring threat to core First Amendment freedoms,” the company’s legal team, led by Paul Clement of Kirkland & Ellis, said in a brief filed in New York Supreme Court. the legal team also is representing Fox Corp., the parent company of Fox News.
But Smartmatic claims that Fox News personalities and guests went beyond reporting, making more than 100 false statements about the company with the implication that it rigged the election results. Its work in 2020, however, was limited to Los Angeles County.
In its most recent brief, Fox News said, “Smartmatic may be frustrated that it became embroiled in a heated national controversy, but one cannot supply voting technology and expect to avoid the spotlight. Controversy comes with the territory. And it was the President’s allegations, not the press’s coverage of them, that put Smartmatic in the spotlight. Smartmatic’s effort to hold Fox responsible for ensuring that the public understood what the nation’s highest elected official was claiming (and what numerous government agencies were investigating) is a profound threat to the ‘uninhibited, robust, and wide-open’ debate that the First Amendment safeguards.”
Fox News’ lawyers also filed briefs on behalf of other defendants in the lawsuit, Maria Bartiromo, Jeanine Pirro and Lou Dobbs. In the aftermath of the election, the hosts each featured two of the most prolific purveyors of the election claims, Rudy Giuliani and Sidney Powell, attorneys for the Trump campaign who also were named in the Smartmatic lawsuit.
In its brief earlier this month, Smartmatic said that the Fox personalities “were not innocent bystanders and the disinformation generated during their interviews was no accident.”
“The Fox anchors knew what Giuliani and Powell would say on their shows, asked questions to elicit lies about Smartmatic, and endorsed Giuliani’s and Powell’s investigation,” Smartmatic said in its brief. “The Fox anchors added their own defamatory comments about Smartmatic for good measure. This was a scripted performance by the Fox anchors, Giuliani, and Powell to defame and disparage Smartmatic for personal gain.”
Fox News’ attorneys, however, contend that their hosts “repeatedly informed viewers that Smartmatic denied the allegations, pressed Giuliani and Powell to substantiate them, and aired skeptical coverage of them,” even if they were not “real-time counter interviews.”
In its lawsuit, Smartmatic zeroed in on some specific instances, including a Sunday Morning Futures program on November 15 in which Bartiromo interviewed Giuliani and she said, “One source says that the key point to understand is that the Smartmatic system has a backdoor that allows it to be [ ] or that allows the votes to be mirrored and monitored, allowing an intervening party a real-time understanding of how many votes will be needed to gain an electoral advantage.” She showed a graphic, explaining that it was “showing the states where they stopped counting, which I thought was also strange to stop counting in the middle of election night.”
In its reply, Fox News’ lawyers say that Bartiromo’s comment was an “accurate summary of allegations being made by the president and his legal team in connection with the president’s announcement of election-fraud investigations and litigation.”
“To the extent Bartiromo linked Smartmatic and Dominion in her voice-over of the Dominion graphic, she simply misspoke, later clarifying that the graphic referred only to Dominion voting machines,” the Fox News attorneys wrote.
Dobbs’ show was dropped by Fox Business and had its last show on February 5, the day after the Smartmatic lawsuit was filed.
Among other things, the Fox News attorneys defended one of his tweets, sent on November 14, in which he wrote, “Read all about Dominion and Smartmatic voting companies and you’ll soon understand how pervasive this Democrat electoral fraud is, and why there’s no way in the world the 2020 Presidential election was either free or fair.”
The Fox News lawyers said that the statement was one of “opinion, as indicated by hyperbolic political rhetoric, loose language, and Twitter medium.”
The network’s brief also contended that Smartmatic was engaging in a “fanciful theory” by claiming that its hosts aligned with Powell and Giuliani “to manufacture the allegations to ‘defame and disparage Smartmatic.'”
“Its complaint simply describes Fox programs, then tacks on conclusory allegations that the Fox hosts were ‘conspir[ing]’ with their guests, purporting to ‘discern’ that conclusion from the facts that hosts engaged in the common courtesy of ‘thank[ing]’ their guests and sometimes invited them back,” the brief stated.
Fox News also argued that Smartmatic has not shown “actual malice,” a legal threshold that public figures must show for a successful defamation claim.
“Its allegations largely boil down to accusations of mere ‘failure to investigate,’ a theory squarely foreclosed by Supreme Court precedent,” the Fox News attorneys said.
Fox News also is seeking dismissal based on New York’s anti-SLAPP law.
Smartmatic, however, claimed that it was not a public figure for the purposes of libel law.
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