Fox News Media made a bid Monday to quash a massive $2.7 billion defamation lawsuit that has called into question segments delivered on at least three of its programs, saying the legal case presented by voting-technology firm Smartmatic is “meritless” and would “chill First Amendment activities.”
Smartmatic, a maker of software that helps in elections, has been the subject of disparaging commentary from a handful of conservative-news outlets. On Thursday it said it had sued Fox News and three of its popular on-air personalities — Lou Dobbs, Maria Bartiromo and Jeanine Pirro — citing efforts made on Fox News programs to disparage the company’s business. Rudy Giuliani and Sidney Powell, two attorneys who had been working for President Donald Trump in his efforts to overturn the results of the 2020 election that resulted in victory for President Joe Biden, are also named in the suit.
The Fox News motion was filed in the Supreme Court of the State of New York. In the filing, Fox News said “Smartmatic has not identified any statement by Fox itself that could be actionable as defamation,” and noted that the company “fails to allege that Fox published the challenged statements with actual malice.”
At issue are several segments broadcast on Fox News properties in November and December that implied Smartmatic had played some role in rigging the 2020 election. Claims from President Trump’s attorneys went so far as to suggest that a former Venezuelan president had some bearing on Smartmatic’s role in helping to count votes –allegations that have no basis in fact. Smartmatic accused Fox News of repeating the claims and accusations on air and in articles and social-media postings.
Fox News maintains that it was fulfilling the public’s right to know claims made by a sitting U.S. President and his surrogates. “In that context, interviewing the President’s lawyers is fully protected First Amendment activity, whether those lawyers can substantiate their claims or not,” the Fox News motion said. “Here, Fox was providing precisely that kind of newsworthy information — typically allowing the President’s surrogates to explain their allegations and evidence themselves.”
Fox News Media late last week canceled the Fox Business Network program hosted by Dobbs, a move that raised eyebrows among observers and insiders. His hour is being filled by a rotating group of anchors and is likely to focus less on the pro-Trump commentary Dobbs delivered on most nights. Larry Kudlow, a former Trump administration official and longtime CNBC personality, is starting a new program on Fox Business in days to come.
The damages sought are significant. Walt Disney’s ABC News in 2017 grappled with a $1.9 billion lawsuit from a South Dakota meat producer that alleged the news operation defamed Beef Products Inc. about the safety of low-cost processed beef trimmings referred to in a report as “pink slime.” Disney subsequently disclosed costs of $177 million related to the settlement of the case. An attorney for Smartmatic, J. Erik Connolly, an attorney at Benesch, Friedlander, Coplan & Aronoff, LLP, helped represent Beef Products in its lawsuit against ABC News.
Fox News has retained Kirkland & Ellis, which filed the motion. “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,” said Paul Clement, a Kirland & Ellis partner, in a statement.
Fox News Media maintains it reported on Smartmatic’s denials of the allegations presented in its segments and offered Smartmatic the opportunity to tell its side of the story. “Fox did exactly what the First Amendment protects: It ensured that the public had access to newsmakers and unquestionably newsworthy information that would help foster ‘uninhibited, robust, and wide-open” debate on rapidly developing events of unparalleled importance.’”
The potential for a lawsuit, however, was clearly taken seriously. Fox News in December aired prerecorded segments in shows led by the three anchors cited in the lawsuit in which Eddie Perez, an election expert, answers questions from an off-camera questioner. Perez was asked to point to errors in statements made on the shows about the voting-technology firms. Smartmatic had sent a letter seeking a correction and suggesting legal action could be imminent.
