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Fox tells judge election fraud remarks were free speech

Nick Turner and Erik Larson
Bloomberg

Fox News told a judge that its reporting on voting-technology firm Smartmatic Corp.’s unsubstantiated role in Donald Trump’s bogus election fraud conspiracy was protected by the First Amendment.

Smartmatic, which makes voting systems and software, is seeking billions of dollars in damages in the suit, which claims Fox News harmed its reputation with reports in November and December suggesting the company helped rig the 2020 election to ensure President Joe Biden’s victory.

In a motion to dismiss filed Monday evening, Fox Corp. argued it had a right to report details of the alleged conspiracy and broadcast the views of Trump’s attorneys “whether those lawyers can eventually substantiate their claims or not.”

“When a sitting president and his surrogates claim an election was rigged, the public has a right to know what they are claiming, full stop,” Fox said in the filing. “When a sitting president and his surrogates bring lawsuits challenging election results, the public has a right to know the substance of their claims and what evidence backs them up, full stop.”

Smartmatic filed the suit Thursday against Fox News and some of its high-profile commentators and guests, including Trump lawyer Rudy Giuliani and former Trump campaign lawyer Sidney Powell. The suit, which seeks $2.7 billion in damages, accuses them of executing a coordinated disinformation campaign aimed at convincing the public of rampant election fraud.

Former Mayor of New York Rudy Giuliani, left, listens to Sidney Powell, both lawyers for President Donald Trump, during a news conference at the Republican National Committee headquarters, Thursday Nov. 19, 2020, in Washington.

Neither Powell nor Giuliani have filed motions to dismiss, and neither responded to messages seeking comment. Powell previously denied Smartmatic’s claims in a statement.

Another election technology company, Dominion Voting Systems Inc., made similar claims in separate lawsuits filed earlier against Giuliani and Powell. Dominion has sent cease-and-desist letters to numerous news outlets and individuals suggesting potential future suits, including against Fox and Trump.

The bogus conspiracy theory claimed both Smartmatic and Dominion played a role in flipping millions of votes to Biden in cahoots with thousands of corrupt Democrats and foreign communists.

The false claim that the election was stolen helped spur a deadly insurrection by Trump supporters at the U.S. Capitol on Jan. 6 and Trump’s subsequent second impeachment by the U.S. House for inciting the riot. His Senate trial starts Tuesday.

In its filing with the court, Fox said Smartmatic had also failed to allege in its complaint that the reports it broadcast were made with “actual malice” toward the company – a standard in defamation suits.

Fox’s attorney, Kirkland & Ellis partner Paul Clement, said in a statement Monday that Smartmatic’s suit is “fundamentally incompatible with the reality of the modern news network.”

Smartmatic says the allegations broadcast by Fox hurt its ability to conduct business in the U.S. and around the world.

The Smartmatic suit also named Fox hosts Lou Dobbs, Maria Bartiromo and Jeanine Pirro, accusing them and Fox of deliberately spreading false information that Smartmatic had fixed the election. Last week, Fox canceled Dobbs’s nightly show but said it was part of changes that had already been in the works for its post-election lineup.

Edward Wipper, the lawyer for Florida-based Smartmatic, didn’t immediately respond to a message seeking comment.

The filing by Fox referred to Trump’s blitz of voting fraud lies as “unconventional efforts to challenge the results of the election,” and said the claims about Smartmatic were newsworthy even if many people doubted them to be true.

“An attempt by a sitting president to challenge the result of an election is objectively newsworthy,” Fox said. “Media outlets around the country and the world thus provided extensive coverage of, and commentary on, the president’s allegations and the associated lawsuits.”