Ted JohnsonTue, 9 February 2021, 3:11 am
Fox News is seeking a dismissal of Smartmatic’s $2.7 billion defamation lawsuit, arguing that it was providing First Amendment protected newsworthy information in featuring President Donald Trump’s surrogates and their false claims that the voting systems company was involved in election fraud.
The network and its parent company, Fox Corp., argued in a motion to dismiss (read it here) that Smartmatic may have a defamation case against Trump’s surrogates if they “fabricated evidence or told lies with actual malice,” but not against “the media that covered their allegations and allowed them to try to substantiate them.”
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“When a sitting President and his surrogates claim that an election was rigged, the public has a right to know what they are claiming, full stop,” the network stated in its motion. “When a sitting President and his surrogates bring lawsuits challenging the results of an election, the public has a right to know the substance of their claims and what evidence backs them up, full stop. In that context, interviewing the President’s lawyers is fully protected First Amendment activity, whether those lawyers can substantiate their claims or not. Here, Fox was providing precisely that kind of newsworthy information — typically allowing the President’s surrogates to explain their allegations and evidence themselves.”
They added, “Providing a forum for newsworthy individuals to make claims that can be tested in the crucible of robust debate is too important to allow suits against the media, rather than against those making the claims.”
The motion to dismiss was filed on behalf of Fox Corp. and Fox News, but not the other defendants named in the Smartmatic lawsuit. They include three Fox News Media personalities, Lou Dobbs, Maria Bartiromo and Jeanine Pirro, and two Trump surrogates who were guests on their shows, Rudy Giuliani and Sidney Powell.
On Friday, the day after the Smartmatic lawsuit was filed, Fox News confirmed that it had canceled Dobbs’s Fox Business show, Lou Dobbs Tonight.
Smartmatic sued Fox Corp. and Fox News on Thursday, contending in a 285-page lawsuit that its reputation was the network and “irreparably harmed” when some of its 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.
Smartmatic’s claims are not just about what news guests told on-air hosts, but what some of those Fox News figures said themselves.
Among other things, Smartmatic pointed to a Nov. 12 show where Dobbs falsely claimed that Smartmatic and Dominion, another voting systems company, sent servers out of the country. Dobbs said, “And, by the way, the states, as you well know now, they have no ability to audit meaningfully the votes that are cast because the servers are somewhere else and are considered proprietary and they won’t touch them. It won’t permit them being touched.”
But in its motion to dismiss, Fox News said that Bartiromo, Dobbs, Pirro and other figures “repeatedly informed viewers” that Smartmatic had denied its technology was involved in election manipulation, and asked Giuliani, Powell and other Trump surrogates whether they could substantiate the claims.
The network said in its motion that “to the extent hosts themselves described the allegations that the President, Giuliani, and Powell were making, they did so in the context of asking guests to comment on them. That, of course, cannot be grounds for defamation, as the press could not cover a public controversy if it could be sued just for repeating a third party’s potentially defamatory allegations when asking others to react to, comment on, or prove or disprove them.”
Smartmatic, Fox News said in the filing, “simply points to instances in which hosts offered the kind of colorful commentary they can be expected to provide when conducting an interview.”
The network said in its motion that “the line between protected speech and actionable defamation cannot turn on whether a commentator expresses doubt versus hope that a guest can prove her newsworthy claims.”
In December, after Smartmatic sent Fox News a demand for a retraction, Fox News aired a fact checking segment with Eddie Perez, a voting technology expert, on the shows hosted by Bartiromo, Dobbs and Pirro. Perez refuted many of the claims made about the company.
In its motion to dismiss, Fox News also argued that Smartmatic is a public figure, meaning it would have to prove that the network “published the challenged statements with actual malice—knowing or reckless disregard of the truth.”
“Smartmatic cannot proceed past the pleading stage unless it alleges facts proving that Fox knowingly or recklessly falsified its coverage about Smartmatic,” the network said. “Smartmatic’s complaint alleges nothing of the kind. At most, Smartmatic alleges that Fox negligently failed to investigate its guests’ statements in advance, a theory foreclosed by Supreme Court precedent.”
Fox News is represented by Paul Clement of Kirkland & Ellis, who said in a statement, “This suit strikes at the heart of the First Amendment. Smartmatic’s theory is fundamentally incompatible with the reality of the modern news network and deeply rooted principles of free speech law.” Clement served as solicitor general under George W. Bush.
The network said in a statement, “Fox News has moved to dismiss the Smartmatic lawsuit because it is meritless. If the First Amendment means anything, it means that Fox cannot be held liable for fairly reporting and commenting on competing allegations in a hotly contested and actively litigated election. We are proud of our election coverage which stands in the highest tradition of American journalism.”
A Smartmatic spokeswoman did not immediately return a request for comment.
The motion to dismiss was filed in New York Supreme Court, and it also argued that Smartmatic has a heightened standard of proof under the state’s anti-SLAPP law, which is designed to deter litigation designed to stifle free speech.
The network also said that their arguments “compel the dismissal” of claims against Bartiromo, Dobbs and Pirro, who “necessarily have the right to raise additional arguments for dismissal or join this motion once served.”
Fox News also is seeking to remove Fox Corp. as a defendant, arguing that the parent company is not alleged to have had “any direct involvement in or control over speakers and statements at issue.