Attorneys Tuesday defended Fox News and a trio of hosts for amplifying President Donald Trump’s allegations of massive election fraud following the 2020 presidential election, arguing the accusations — including against voting software concern Smartmatic — were highly newsworthy even if dubious. They said said hosts Lou Dobbs and Jeanine Pirro were protected since they ran opinion shows, not news.
They didn’t make that claim for Mario Bartiromo in a hearing to dismiss a defamation lawsuit by Smartmatic against Fox and the hosts as well as Sidney Powell and Rudy Giuliani. Powell’s lawyer argued the NY court had no jurisdiction over her since she’s from Texas and “never came to New York to give any of the interviews.” Giuliani’s attorney rehashed conspiracy theories to but was light on evidence when pressed by the judge.
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The Smartmatic team argued that Fox hosts repeatedly aired claims suggesting fraud by the company, which provided voting software to the county of Los Angeles for the 2020 election. Its hosts in some cases implied they’d confirmed the allegations independently. Accusations that were denied by Smartmatic and disproved or never proved included nefarious ties with late Venezuelan strongman Hugo Chavez, that its servers were located in foreign countries so states couldn’t audit votes, and that it was connected with voting machine company Dominion and ejected from Texas.
(Dominion has also sued Fox, as well as Powell and Giuliani, who actively pressed Trump’s fraud case on television and in the courts, along with My Pillow founder Mike Lindell, for defamation. A federal judge in Washington, D.C. ruled last week the suit can proceed.)
Lead Fox attorney Paul Clement of Kirland Ellis insisted Smartmatic’s lawsuit “strikes at the heart of the First Amendment.” The fact “that the President’s legal team is challenging the election is newsworthy and remains newsworthy whether or not they are likely to succeed.”
The lengthy hearing that just wrapped addressed each defendant separately. Nicole Wrigley of Benesch Friedlander, for Smartmatic, noted that on Dec. 10, after election fraud cases had been discredited across the country, Dobbs – whose show Lout Dobbs Tonight was canceled by Fox in February — “put a picture on screen of Smartmatic’s CEO and said, ‘We are looking at a very large foreign intrusion in the 2020 elections. We have tremendous evidence already of fraud in this election.’ He is not couching these things as rumor or innuendo but as facts and that not protected opinion.”
In all cases the Smartmatic team charged, and opposing attorneys denied malice on the part of defendants for deliberately reporting or relaying information they knew was unfounded or inaccurate.
Judge David Cohen of New York State Supreme Court was pointed with both sides. asking the Smartmatic legal team why the allegations wouldn’t be newsworthy and noting that news shows air and discuss allegations all the time. He grilled Fox over when its hosts knew the reports they were airing had been debunked. He referred to a segment by another Fox News host, Tucker Carlson, who in late November refused to have Powell on air after she was unable to provide documentation backing up her accusations.
Said Cohen: “Tucker Carlson said that if what Powell was saying was true, this would be one of the biggest crimes in history. And he asked her to produce evidence. And said that the Trump campaign said there was no evidence. Didn’t that give Fox pause? Isn’t that a tacit admission that what Powel and Giuliana was saying was unsubstantiated?”
“They were the President of the United States’ lawyers and even if they were subject to some doubt it does not … take away from the newsworthiness and First Amendment protection,” repeated Clement.
But attorneys in the Fox camp also used the Carlson segment — as proof that Fox’s coverage was fair and balanced.
Smartmatic filed the a $2.7-billion defamation lawsuit against Fox, Dobbs, Pirro, Bartiromo, Giuliani and Powell in February.
The company’s 285-page suit claimed that Fox News “irreparably harmed” its reputation when some of its news personalities and guests targeted the company as responsible for rigging election results.
“One of the biggest challenges in the Information Age is disinformation,” Antonio Mugica, CEO of Smartmatic, said in a statement then. “Fox is responsible for this disinformation campaign, which has damaged democracy worldwide and irreparably harmed Smartmatic and other stakeholders who contribute to modern elections.”
Smartmatic was basically characterized on Fox as a Venezuelan company under the control of corrupt dictators from socialist countries, the lawsuit said. “In their story, Smartmatic’s election technology and software were used in many of the states with close outcomes. And, in their story, Smartmatic was responsible for stealing the 2020 election by switching and altering votes to rig the election for Joe Biden and Kamala Harris.”
In fact, Smartmatic, based in Florida, provided election technology software only in Los Angeles County for the November election and “nowhere else.”
The suit identified 13 Fox News segments from November and December and over 100 “false statements” in articles and on social media in which on-air personalities and guests implied or stated the company “had stolen the 2020 U.S. election.”
In its motion to dismiss, Fox said 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.”