Judge Rejects Fox News’ Motion To Dismiss Smartmatic Defamation Lawsuit

UPDATED, with Smartmatic statement: A New York judge rejected Fox News’ efforts to dismiss a $2.7 billion lawsuit filed by Smartmatic, which sued over the network’s amplification of unfounded claims that it rigged the 2020 presidential election.

Judge David Cohen also declined to dismiss Smartmatic’s claims against host Maria Bartiromo and former host Lou Dobbs. The judge did dismiss claims against another host, Jeanine Pirro, as well as attorney Sidney Powell, who was a guest multiple times in the aftermath of the vote. The judge also tossed out some of the Smartmatic claims against another guest, Rudy Giuliani, but is giving the company a chance to refile.

Smartmatic sued Fox News and other defendants in February, claiming that the network’s personalities pushed the narrative that the election was rigged in an effort to boost ratings.

“Even assuming that Fox News did not intentionally allow this false narrative to be broadcasted, there is a substantial basis for plaintiffs’ claim that, at a minimum, Fox News turned a blind eye to a litany of outrageous claims about plaintiffs, unprecedented in the history of American elections, so inherently improbable that it evinced a reckless disregard for the truth,” Cohen wrote in his 61-page opinion. (Read it here).

Fox News Media plans to appeal.

“While we are gratified that Judge Cohen dismissed Smartmatic’s claims against Jeanine Pirro at this early stage, we still plan to appeal the ruling immediately,” the company said in a statement. “We will also continue to litigate these baseless claims by filing a counterclaim for fees and costs under New York’s anti-SLAPP statute to prevent the full-blown assault on the First Amendment which stands in stark contrast to the highest tradition of American journalism.”

The network also is facing another defamation lawsuit from another company, Dominion Voting Systems, over post-2020 election claims. A Delaware judge in December declined to toss out that lawsuit.

In its lawsuit, Smartmatic cited 13 Fox News reports in which claims were made that the company was involved in rigging the vote. Those claims later were repeated in articles and social media posts.

Among other things, Smartmatic cited one of Dobbs’ tweets, from Nov. 14, 2020, in which he wrote, “[r]ead all about Dominion and [Smartmatic] voting companies and you’ll soon understand how pervasive this Democrat electoral fraud is, and why there is no way in the world the 2020 Presidential election was either free or fair.”

Fox News contended that it was merely reporting on a newsworthy event: The aftermath of a presidential election, and that they turned to Giuliani and Powell because they were representing Trump’s campaign. The network also noted that Smartmatic demanded, and got, a retraction, as an election security expert appeared on the Bartiromo, Dobbs and Pirro shows to say that there was no evidence that company software was used to alter votes.

Cohen, though, was unpersuaded.  He noted that on one of her shows, Bartiromo stated that “she learned from unnamed whistleblowers, one of whom was an IT specialist, that [Smartmatic] software had an ‘unusual patch’ which allowed it to change votes through a ‘back door.'” He wrote that Dobbs “stated on Fox News that a whistleblower told him that the rigging of the election was reminiscent of the 2013 Venezuelan election, in which [Smartmatic] software was used to change votes.”

“Given the questionable sources of much of this information, as well as the gravity and unprecedented nature of the claims against [Smartmatic], a jury could determine that these claims were fabricated or, at the very least, that there were reasons to doubt the sources of this information.” Cohen wrote.

The judge also wrote that there was a “substantial basis” for Smartmatic’s claim that the network acted with actual malice, or that it knew that the election rigging claims were false or that they acted with reckless disregard for the truth. For example, the judge wrote, Fox News asked Smartmatic on Nov. 17, 2020, if it had a response to a statement from federal officials that the election was “the most secure in American history.”

“Ironically, the statements of Tucker Carlson, perhaps the most popular Fox News host, militate most strongly in favor of a possible finding that there is a substantial basis that Fox News acted with actual malice,” Cohen wrote, noting that it was Carlson who stated Powell never substantiated her allegations of election rigging.

Cohen suggested that Bartiromo’s allegation that Smartmatic software converted votes for President Trump to votes for President Biden “could be found ‘so inherently improbable that only a reckless person would have put [it] in circulation.'”

One of Dobbs’s defenses was that, as he featured election rigging claims, he also informed his viewers of Smartmatic’s response, via emails his producer received on Nov. 16 and 17, 2020. But Cohen wrote that was insufficient for clearing Dobbs from liability and that, even after Smartmatic’s response, he continued to make the unsubstantiated allegations about Smartmatic. He also rejected the notion that Dobbs was merely stating his opinion, not fact.

Fox News dropped Dobbs’ show in February, a day after the Smartmatic lawsuit was filed.

Cohen did dismiss Pirro from the case, largely because she did not specifically allege that the 2020 election votes were stolen using Smartmatic software.

The claim against Powell was tossed out due to lack of jurisdiction in New York. Smartmatic is pursuing claims against Powell in Washington, D.C. as well.

The judge also dismissed a series of claims against Giuliani, having to do with product disparagement, “since they seek damages in connection with lost customers but plaintiffs fail to plead special damages with the requisite specificity.” But Cohen is giving Smartmatic time to refile “given the quantity and seemingly outrageous character of the accusations made by Giuliani.”

In a footnote, the judge also rejected one of Giuliani’s defenses. The former New York mayor had asserted that his statements had a basis in fact, via a declaration by an individual who claimed to have “intimate knowledge” of how Smartmatic software was designed to fix elections in Venezuela. An unredacted copy of the declaration was submitted for the judge’s inspection, but Cohen found that the claims were “vague, contradictory and conclusory.”

“The statements in the document are made ‘under penalty of perjury’ but the declarant neither swears nor affirms the truth of the same,” Cohen wrote.

Cohen scheduled a preliminary conference for May 18.

In a statement, Smartmatic’s attorney J. Eric Connolly said that the company “is very pleased that the court denied Fox’s motion and decided that the case should proceed to discovery. The defamatory statements by Fox News about Smartmatic caused catastrophic damage to its business and reputation in the United States and worldwide. This lawsuit will help to undo that damage.”