Smartmatic, the election systems company, filed a $2.7 billion lawsuit against Fox Corp. on Thursday, claiming that Fox News “irreparably harmed” its reputation when some of its news personalities and guests targeted the company as responsible for rigging election results.
Also named in the 285-page lawsuit (read it here) were Fox News and three Fox News personalities, Lou Dobbs, Jeanine Pirro and Maria Bartiromo. Rudy Giuliani and Sidney Powell, who represented the Trump campaign in its post-election challenges and have been guests on the network, also were named in the lawsuit.
“One of the biggest challenges in the Information Age is disinformation,” Antonio Mugica, CEO of Smartmatic, said in a statement. “Fox is responsible for this disinformation campaign, which has damaged democracy worldwide and irreparably harmed Smartmatic and other stakeholders who contribute to modern elections.”
In the lawsuit, Smartmatic accuses the defendants, disappointed that Joe Biden and Kamala Harris won the election, of inventing the story of the company’s involvement in election fraud.
“In their story, Smartmatic was a Venezuelan company under the control of corrupt dictators from socialist countries,” the lawsuit stated. “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 in Los Angeles County for the November election and “nowhere else.”
In a statement, Fox News Media said, “Fox News Media is committed to providing the full context of every story with in-depth reporting and clear opinion. We are proud of our 2020 election coverage and will vigorously defend this meritless lawsuit in court.”
After Smartmatic’s lawyers fired off a legal threat in December to Fox News, Newsmax and One America News Network, Fox News ran a fact-checking segment on the shows hosted by Dobbs, Bartiromo and Pirro that featured Eddie Perez, a voting technology expert, who debunked many of the claims. Newsmax also ran a fact-checking segment, and earlier this week, one of its anchors walked off the air as MyPillow CEO Mike Lindell as he tried to advance conspiracy theories about the election. The anchor, Bob Sellers, later apologized.
The fact-checking segment, however, was not enough to prevent a Smartmatic lawsuit.
In their complaint, Smartmatic identified 13 Fox News segments from November and December, in which on-air personalities and guests implied or stated the company “had stolen the 2020 U.S. election.” The claims also were made in articles and social media postings. In all, the company said that it identified “over 100 false statements and implications about Smartmatic.”
“Defendants’ story was a lie. All of it. And they knew it. But, it was a story that sold,” the lawsuit stated.
Smartmatic accused Fox News, facing post-election competition from Newsmax and One America, of using the story “to preserve its grip on viewers and readers and curry favors with the outgoing administration –– one of their anchors was even able to get a pardon for her ex-husband.” That was a reference to reports that Pirro lobbied Trump in the last hours of his presidency to issue a pardon for her ex-husband.
“Ms. Powell used the story to raise money and enrich herself. Mr. Giuliani used the story to guarantee himself a flow of funds from the sitting President and to sell products. Defendants knew the story could not change the outcome of the election. It could, and did, make them money,” Smartmatic stated in the suit.
The lawsuit was filed in New York state court, and Smartmatic is represented by lead attorney J. Erik Connolly at Benesch, Friedlander, Coplan & Aronoff.
Another election systems company, Dominion Voting Systems, has filed lawsuits against Powell and Giuliani, and they have said that they are taking “a close look” at filing claims against “those who have recklessly provided a platform for these discredited allegations.”
Smartmatic’s lawsuit seeks actual and punitive damages, as well “a declaration requiring Defendants to fully and completely retract their false statements and implications.” It also outlines projections of lost profits due to the damage to their reputation, as well as threats made against company employees.
The lawsuit claims that the Fox personalities were essentially in cahoots with Powell and Giuliani in advancing the election rigging claims.
The lawsuit claims that the “disinformation campaign” started on Lou Dobbs’ Fox Business show on Nov. 12, when he and guest Giuliani talked about Dominion and Smartmatic. On the show, Giuliani falsely claimed that Dominion was owned by Smartmatic, and that it was a foreign company owned by Venezuelans who had ties to Hugo Chavez.
Dobbs, the lawsuit stated, “then took the initiative and contributed additional falsehoods to the narrative by telling people that Smartmatic and Dominion sent votes out of the country so the voting is not auditable. He had no evidence of this assertion, and Secretaries of State had stated the opposite, but that was another aspect of the false narrative that Defendants ultimately wanted to spread.”
On the show, Dobbs said, “And, by the way, the states, as you well know now, they have no ability to audit meaningfully the votes that are cast because the servers are somewhere else and are considered proprietary and they won’t touch them. It won’t permit them being touched.”
At the time, multiple fact-checking sites debunked the claims, including the contention that ballots were counted overseas.
The lawsuit also identified a segment of Sunday Morning Futures, in with Bartiromo interviewed Giuliani, in which she said, “One source says that the key point to understand is that the Smartmatic system has a backdoor that allows it to be [ ] or that allows the votes to be mirrored and monitored, allowing an intervening party a real-time understanding of how many votes will be needed to gain an electoral advantage.” Bartiromo then featured Powell, and there was another discussion of a “backdoor” to alter votes.
Bartiromo, the lawsuit stated, “knew there was no evidence of a backdoor used to alter votes. She had never seen any evidence of a backdoor. She also knew there was no evidence of a backdoor being operated from Germany or Venezuela. Yet, that was part of the story that Ms. Bartiromo had agreed to spread.”
Aaron Caplan, professor at LMU Loyola Law School in Los Angeles, said that while Smartmatic will have to prove there was a false statement of fact about them, one issue that may arise is whether Fox personalities were espousing their opinions or whether they were acting in a reporting capacity.
News channels have defended previous defamation lawsuits by claiming that their on-air personalities were merely expressing their opinions. Last year, a federal judge dismissed a claim brought by One America News Network against MSNBC personality Rachel Maddow, who had said that the right-leaning channel “really, literally is paid Russian propaganda.” The judge ruled that in the general context of the statements, “a reasonable fact finder could only conclude that the statement was one of opinion not fact.”
More recently, a judge threw out a case brought by Karen McDougal against Fox News, claiming that Tucker Carlson defamed her when he accused her of extorting Trump out of $150,000 in exchange for her silence about an alleged affairs. The judge wrote that Carlson’s claim was hyperbole and “viewed in context are not factual representations and, therefore, cannot give rise to a claim for defamation.”
In its lawsuit, Smartmatic seems to anticipating that argument. Their lawsuit identified Bartiromo, Dobbs and Pirro as presenting themselves as “a provider of factual information — not opinion, rhetoric or spin.” Contrary to those personas, the lawsuit stated, they were “primary proponents and speakers for the disinformation campaign” against the company.
Another potential defense would be that Fox News personalities were exercising the fair reporting privilege, or “giving a fair an accurate report of what someone said,” Caplan said.
But “if those people were going on and they weren’t just providing a description of newsworthy statements and adopting statements of their own, that is not reporting anymore,” he said. “That is making a false statement.”
The lawsuit started with this line: “The Earth is round. Two plus two equals four. Joe Biden and Kamala Harris won the 2020 election for President and Vice President of the United States. The election was not stolen, rigged, or fixed. These are facts. They are demonstrable and irrefutable.”
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