Judge Denies Fox News’ Motion to Dismiss Smartmatic Defamation Lawsuit

  • A New York Supreme Court Judge has allowed Smartmatic’s defamation lawsuit against Fox to move forward.
  • The voting-systems company also sued multiple hosts as well as Rudy Giuliani and Sidney Powell.
  • In May 2021, a judge rejected Fox News’ request to throw out Dominion’s defamation lawsuit.

A New York State Supreme Court Judge ruled on Tuesday that voting-systems company Smartmatic’s $2.7 billion lawsuit against Fox News can move forward, rejecting Fox’s motion to dismiss the case, according to court documents.

In February 2021, Smartmatic filed the defamation lawsuit against the network, Sidney Powell, Rudy Giuliani, and current and former hosts including Lou Dobbs, Jeanine Pirro, and Maria Bartiromo.

At the time, the company claimed that Powell and Giuliani used right-wing media outlets like Fox News to amplify their conspiracy theories about the 2020 presidential election. 

“These defendants are primary sources of much of the false information,” the company said last February. “Their unfounded accusations were repeated by other media outlets, journalists, bloggers, and influencers the world over.”

The lawsuit focused on 13 reports that appeared on Fox News between November and December 2020, where people on the network including hosts and guests shared false conspiracies that Smartmatic stole the election, and “was a Venezuelan company under the control of corrupt dictators from socialist and communist countries; its election technology was used in six ‘swing’ or ‘battleground’ states with close outcomes,” according to the lawsuit.

In his ruling on Tuesday, Judge David B. Cohen said that “plaintiffs have adequately pleaded that their claims against Fox News have a sufficient basis in law.” The company may also proceed with claims against Bartiromo and Dobbs.

However, he did dismiss all of Smartmatic’s claims against Pirro and Powell. Cohen also dismissed some defamation claims against Giuliani due to a legal technicality, but other claims against Giuliani were allowed to proceed.

“Even assuming that Fox News did not intentionally allow this false narrative to be broadcasted, there is a substantial basis for plaintiffs’ claim that, at a minimum, Fox News turned a blind eye to a litany of outrageous claims about plaintiffs unprecedented in the history of American elections, so inherently improbable that it evinced a reckless disregard for the truth,” Cohen wrote in the decision.

“Dobbs’ extremely serious claims that SUSA sent votes out of the country to be counted, that SUSA changed votes in the Venezuelan election of 2013, that there was probable cause to investigate the company, that SUSA’s software was designed to change votes without detection, and that SUSA was involved in a cyberattack on the election could be found to be ‘so inherently improbable that only a reckless person would have put [them] in circulation,'” Cohen wrote. “This Court rejects Dobbs’ argument that his statements are not defamatory because they constitute his opinion.” 

“Smartmatic is very pleased that the Court denied Fox’s motion and decided that the case should proceed to discovery,” Smartmatic’s attorney J. Erik Connolly said in a statement. “The defamatory statements by Fox News about Smartmatic caused catastrophic damage to its business and reputation in the United States and worldwide. This lawsuit will help to undo that damage.”

In a statement, Fox News said that it plans to appeal the ruling.

“While we are gratified that Judge Cohen dismissed Smartmatic’s claims against Jeanine Pirro at this early stage, we still plan to appeal the ruling immediately,” Fox News said in its statement. “We will also continue to litigate these baseless claims by filing a counterclaim for fees and costs under New York’s anti-SLAPP statute to prevent the full-blown assault on the First Amendment which stands in stark contrast to the highest tradition of American journalism.”

Giuliani, Dobbs, Pirro, Powell, and Bartiromo did not immediately respond to a request for comment.

In May 2021, a Delaware judge rejected Fox News’ request to throw out a defamation lawsuit mounted by Dominion Voting Systems, which also sued multiple conservative networks and figures over election conspiracy theories.

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