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Fox News loses appeal of Smartmatic defamation suit, claims against Rudy Giuliani and Jeanine Pirro revived

rudy giuliani via fox news screengrab

Rudy Giuliani (Image via Fox News Screengrab)

Fox News lost its appeal of Smartmatic’s $2.7 billion lawsuit for broadcasting conspiracy theories about voting machines in the 2020 presidential election.

An intermediate appellate court in New York also revived claims against former New York City Mayor Rudy Giuliani and Fox personality Jeanine Pirro.

A five-judge panel unanimously found that Smartmatic adequately alleged that Fox News, Giuliani, Pirro and Maria Bartiromo either knew that the voting machine conspiracy theories were false — or had serious doubts about their veracity — when they aired.

Under the actual malice standard, it isn’t defamation if the network, its hosts, and its guest “merely report the newsworthy fact that the President’s campaign lawyers were recklessly making statements conveying false information,” the ruling notes.

But that isn’t what Fox News and its co-defendants are accused of doing.

“Rather, the complaint alleges in detailed fashion that in their coverage and commentary, Fox News, Dobbs, and Bartiromo effectively endorsed and participated in the statements with reckless disregard for, or serious doubts about, whether the assertions or implications that plaintiffs had participated in election fraud had any basis in truth or were supported by any reliable evidence,” the ruling states.

Former President Donald Trump and his boosters falsely claimed that there was a massive conspiracy to rig Dominion and Smartmatic voting machines to flip votes to Joe Biden. There is no evidence to support the allegations against either company, but the theory as to Smartmatic is even more fantastical. In the 2020 election, Smartmatic machines were only used in Los Angeles County, a deep blue jurisdiction where Biden’s victory was never in doubt.

“In fact, according to the allegations in the complaint, Fox News, Dobbs, and Bartiromo stated that Smartmatic’s election technology and software were widely used in the 2020 election and in Dominion machines to switch votes, when they actually knew, or easily could have known had they not purposefully avoided publicly available knowledge, that in 2020, the Smartmatic technology was used only in Los Angeles County and that the vote switching claims otherwise had no support,” the ruling notes. “Based on the same reasoning, the claims against Pirro, which are based on similar allegations of defamatory statements made with actual malice, must be reinstated.”

For the same reason, the judges found, certain claims against Giuliani must be reinstated. In November, the trial judge revived one of the claims against Giuliani — and the appellate court added two more.

The network did notch a smaller victory in the appellate court finding that allegations against parent company Fox Corporation should have been dismissed, with leave to replead.

“With respect to Fox Corporation, which is a corporate entity separate from Fox News, the complaint does not adequately allege that any Fox Corporation employee played an affirmative role in the publication of the challenged defamatory statements,” the ruling states.

Media lawyer Mitchell Epner, a partner at Rottenberg Lipman Rich PC, said that the ruling is a “very bad day for Fox News and their personnel.”

“Pirro thought she was out of the case,” Epner noted. “She isn’t. The cases are going forward against all of the rest of the defendants against Fox Corporation, the parent.”

Smartmatic can replead those allegations, and only Trump-backing lawyer Sidney Powell, who was a guest, has remained out of the case.

Epner added that the ruling also “means the plaintiffs will not be liable for legal fees under New York’s anti-SLAPP law, even if they lose this case.”

He added that the final line of the ruling is even worse for Fox.

“We decline to find that plaintiffs should be deemed limited purpose public figures required to allege facts that, if true, would ‘clearly and convincingly’ show defamation with actual malice,” the ruling reads.

That would represent a far lower burden of proof for Smartmatic at trial.

In a press release, Smartmatic noted that the court remarked upon the company’s “meticulously drafted complaint.”

“As detailed in our complaint, Fox News, its news anchors and guests knowingly and falsely published lies that Smartmatic’s election technology and software was widely used in the 2020 election to switch votes — when they knew that Smartmatic’s technology was used only in Los Angeles County and there was no support for making their outrageous claims,” the company’s lawyer Erik Connelly wrote in a statement. “Smartmatic has been severely injured and has sued to recover for this harm.”

Fox News stood by their broadcasts in their statement.

“There is nothing more newsworthy than covering the president of the United States and his lawyers making allegations of voter fraud,” the network’s spokesperson said. “We are confident we will prevail as freedom of the press is foundational to our democracy and must be protected, in addition to the damages claims being outrageous, unsupported, and not rooted in sound financial analysis, serving as nothing more than a flagrant attempt to deter our journalists from doing their jobs.”

Representatives for Dobbs, Giuliani, Pirro and Bartiromo did not immediately respond to requests for comment.

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."