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Fox News Lawyers Renew Bid to Get Smartmatic’s Billion-Dollar Case Thrown Out of Court: The Real ‘Threat’ to Democracy Is This Lawsuit


Fox News Media on Monday filed a memorandum of law in support of motions to dismiss Smartmatic’s billion-dollar defamation lawsuit over the network’s 2020 election coverage. The network, which filed the documents in New York Supreme Court along with replies from Fox personalities Maria Bartiromo, Jeanine Pirro, and former Fox host Lou Dobbs, argued in the opening lines of the motion that the real “threat” to democracy is Smartmatic’s lawsuit — not Fox’s coverage of the “stolen” election claims by former President Donald Trump and his allies.

“Smartmatic asks this Court to become the first in history to hold the press liable for reporting allegations made by a sitting President and his lawyers, and to break that barrier in the context of one of the most newsworthy events imaginable: a contested presidential election. This Court should decline that First-Amendment-defying request. When a sitting President claims an election was stolen and assembles a legal team to challenge it, the public has a right to know about the allegations. When the press informs the public about those allegations, the First Amendment robustly protects that coverage. Indeed, while the First Amendment protects everything from violent video games to funeral protests, shielding robust coverage of national leaders and elections lies at the Amendment’s absolute core,” the filing by Fox lawyer and Kirland & Ellis partner Paul Clement began.

“That protection does not dissipate if the allegations strike some as desperate or ultimately fail in court. The allegations are inherently newsworthy because of who is leveling them and what they concern. Seeking to impose billions of dollars in liability for such coverage goes beyond a chilling effect: It poses a direct threat to the reporting of newsworthy allegations on which our democracy depends,” the motion by former President George W. Bush’s Solicitor General continued. “Whenever allegations of wrongdoing are leveled by or against public figures and denied by others, whether they involve election fraud or sexual misconduct, only one side can be telling the truth. Reporting both the allegations and the denials is critical to the truth-seeking function, not an invitation for groundless lawsuits.”

On Feb. 8, Fox filed a motion to dismiss the $2.7 billion Smartmatic suit, calling the case “meritless.”

“As the story unfolded, and as Smartmatic denied many of those allegations, Fox covered the denials too, including by reporting Smartmatic’s position, offering Smartmatic the opportunity to tell its side, and soliciting the views of disinterested third parties on the veracity of the allegations against Smartmatic, sometimes in a debate-like format,” the court documents said. “In short, 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.”

As recently as April 13, Smartmatic’s lawyers argued that “This is not a game” and that the First Amendment “does not provide the Fox Defendants a Get Out Of Jail Free card.”

“The Fox Defendants do not get a do-over with their reporting now that they have been sued,” they added.

But Fox asserted that Smartmatic’s pleadings have relied on “speculation” that has left the company far short of proving actual malice and devoid of a viable defamation case. Fox maintains that Smartmatic is “easily at least a limited-purpose public figure.” Fox lawyers tacked on a footnote to that line saying that it “does not ‘concede’ that Smartmatic is not a general-purpose public figure.”

“When a company agrees to provide technology for a national election, it necessarily accepts the risk of becoming embroiled in national controversy—something Smartmatic well knew from having become embroiled in national election controversies long before this one,” the motion said.

In closing, Fox lawyers said that Smartmatic’s claims against the network and the individual Fox hosts named as defendants comes “nowhere close” to proof of actual malice.

“Smartmatic’s remaining contentions fare no better. Smartmatic claims Fox had ‘obvious reasons to doubt’ the President’s claims and that Fox hosts violated journalism standards, (id. at 111-13), but those claims recycle its legally inadequate ‘failure to investigate’ allegations. Smartmatic speculates that the hosts had motives to ‘endear’ themselves to President Trump, (id. at 114), but such speculation cannot meet the high actual-malice bar,” the motion continued, citing to McDougal v. Fox News Network. “Indeed, Smartmatic all but admits that its own actual-malice allegations are insufficient by inviting this Court to consider allegations made by a different party in a different lawsuit. In short, Smartmatic’s effort to make up in volume what it lacks in substance comes nowhere close to bringing home to any of the Fox hosts (let alone to Fox itself) the actual knowledge required to prove actual malice by clear and convincing evidence.”

Pirro, Bartiromo, and Dobbs each joined in this argument.

Read all the filings below:

[Images via Spencer Platt/Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.