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Fox Corporation is asking a New York state court to drop a $2.7 billion defamation suit brought against it by voting technology firm Smartmatic, saying its broadcasts after the Nov. 3 election were protected under the Constitution’s First Amendment.
Smartmatic, which supplied voting systems used in Los Angeles County, brought its suit on Thursday, alleging the Fox News, a subsidiary of Fox Corporation, spread then-President Donald Trump‘s lies about the election, including conspiracy theories related to its voting machines, in order to turn a profit and curry favor with Trump.
Surrogates of the president baselessly claimed that Smartmatic machines were used to steal votes for Trump and count them for President Joe Biden as part of a multiyear conspiracy, including outlandish theories about sending votes overseas.
In a response filed late Monday, Fox responded that Trump’s effort to overturn the results of the election was “objectively newsworthy” and that Fox was serving in its role as a news provider by allowing the then-president’s attorneys and surrogates to make their case on television.
The suit was filed in New York County in the New York Supreme Court, a trial-level court.
“This lawsuit strikes at the heart of the news media’s First Amendment mission to inform on matters of public concern,” Fox’s lawyer, Paul Clement, wrote in the filing, which drew on New York Times Co. v. Sullivan, the landmark 1964 press freedom case.
“In short, Fox did exactly what the First Amendment protects: It ensured 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,” Clement wrote.
Clement, who served as solicitor general for three years under President George W. Bush and is now a partner at the law firm Kirkland & Ellis, is one of the nation’s most high-profile attorneys.
Picture of the logo of Smartmatic, the firm that supplies Venezuela’s voting technology, seen on a sliding door at the headquarters of the company in Caracas.
Ronaldo Schemidt | AFP | Getty Images
Smartmatic named Fox Corporation, Fox News, three Fox hosts, and the lawyers Rudy Giuliani and Sidney Powell in its lawsuit. Clement argued that Fox and its hosts, Lou Dobbs, Maria Bartiromo and Jeanine Pirro, could not be held liable, though he left the door open for action against Giuliani and Powell.
Dobbs’s show on Fox Business Network, “Lou Dobbs Tonight,” was cancelled one day after Smartmatic’s suit was filed.
“If those surrogates fabricated evidence or told lies with actual malice, then a defamation action may lie against them, but not against the media that covered their allegations and allowed them to try to substantiate them,” Clement wrote.
Fox’s argument puts forward a starkly different narrative than Smartmatic, which in its own filing claims that Fox’s host were part of a “conspiracy to defame and disparage Smartmatic.”
Smartmatic argued that Fox and its hosts joined forces with Giuliani and Powell to spread lies about the election as part of an effort “to reclaim its favored status with President Trump and his followers.”
Fox’s response lists a number of statements that it argues shows its hosts scrutinizing Giuliani and Powell’s claims.
For instance, the filing says that on her show on Nov. 15, Bartiromo asked Powell: “Sidney, you feel that you will be able to prove this[?] … How will you prove this, Sidney? You believe you can prove this in court?”
The filing also makes the argument that Smartmatic is “clearly a public figure here.” If the court accepts that argument and agrees that Smartmatic qualifies a public figure, it would make it easier for Fox to have the case dismissed. In a footnote, Clement also argues that the case against Fox Corporation should be dropped on the sole ground that Smartmatic failed to show that the company had “any direct involvement in or control over speakers and statements at issue.”
Fox News Media said in a statement that the company had moved to dismiss the lawsuit “because it is meritless.”
“If the First Amendment means anything, it means that Fox cannot be held liable for fairly reporting and commenting on competing allegations in a hotly contested and actively litigated election,” the company said. “We are proud of our election coverage which stands in the highest tradition of American journalism.”
An attorney for Smartmatic did not immediately return a request for comment.
The lawsuit against Fox is one of several defamation cases brought in the wake of Trump’s bid to taint and reverse President Joe Biden’s victory.
Dominion Voting Systems, another maker of voting machines targeted by conspiracy theorists backing Trump, has brought suits against Powell and Giuliani. The company has also warned media outlets including Fox, Newsmax, One America News Network and Epoch Times that they could face litigation.
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