Both companies were defamed as part of Fox News’ promotion of Trump’s “big lie” that the 2020 presidential election was stolen from him – and that the companies were part of the fraud.
“At this nascent stage of the litigation,” Cohen wrote in his decision, “this Court finds that the plaintiffs have pleaded sufficient facts to permit a jury to infer that Fox News acted with actual malice, as it was conceivable that whether he had a “high degree of awareness of falsity” or “serious doubts as to the veracity” of the statements made”.
On that basis, Cohen denied Fox News’ motion to dismiss the case, which was based in part on the argument that the segments in question were newsworthy and therefore eligible for First Amendment protections. Other defendants named in the Smartmatic lawsuit include Trump’s personal attorneys Rudolph W. Giuliani and Sidney Powell, Fox News hosts Maria Bartiromo and Jeanine Pirro, and former Fox Business host Lou Dobbs. Cohen denied the company’s claims against Powell and Pirro, as well as certain claims against Giuliani.
In a statement, the network said it would appeal the decision. “We will also continue to litigate these baseless claims by filing a counterclaim for costs and expenses under New York’s anti-SLAPP law to prevent the full-scale assault on the First Amendment, in stark contrast to the highest tradition of American journalism.”
Nervous stuff from the nation’s biggest purveyor of politically charged lies. The more than 270 pages of Smartmatic’s complaint expose an attack on truth and decency that has been repeated over and over on Fox News.
Tucker Carlson, Fox News’ top-rated host, featured in the judge’s ruling that the network may have gone against the norm. In November 2020, Carlson did a segment regarding claims by Sidney Powell, an attorney who pushed Trump’s voter fraud allegations. He pressed Powell for proof of her claims and later reported on air that she had not provided the goods.
“Ironically, the statements of Tucker Carlson, perhaps Fox News’ most popular host, argue most strongly for an eventual conclusion that there is a substantial basis that Fox News acted with actual malice. “, wrote Cohen, who went on to claim that “Fox News knew, or should have known, that Powell’s claim was false and deliberately ignored the efforts of its most important anchor to obtain substantiation of the allegations of Wrongdoing” by Smartmatic.
An even more devastating judicial dismissal came when Cohen blasted numerous lies from Dobbs, who lost his show in early 2021. “Dobbs’ extremely serious claims that [Smartmatic] sent votes out of the country to be counted, that [Smartmatic] changed the votes in the 2013 Venezuelan election, that there were probable grounds to investigate the company, that [Smartmatic’s] software was designed to alter votes without detection, and that [Smartmatic] was involved in a cyberattack on the election could be deemed “so inherently unlikely that only a careless person would have put [them] in circulation.”
As for Bartiromo, Cohen cited his statement that there was a “backdoor” in the Smartmatic software indicating how many votes had to be traded to launch an election. It could well be a “fabrication”, he wrote, considering that she did not identify the source on which it was based. In Pirro’s case, Cohen wrote, the anchor did not specify that Smartmatic software was used to steal votes. He dropped Powell from the case on jurisdictional grounds.
Cohen’s decision follows a hearing on the case in August, when he repeatedly pressed defendants’ attorneys on the factual integrity of outrageous representations about Smartmatic. At one point, he asked about Dobbs’ claim that Smartmatic had been under some kind of ban in Texas. “Where did this come from and how isn’t it defamatory? Has any evidence ever come to light that Smartmatic has been banned in Texas or has Mr. Dobbs ever tried to verify s ‘there was proof of that?’ asked the judge, the answer was not convincing.
Nor is there anything convincing about Fox News’ defense in this case. In the weeks following the 2020 election, a cabal of Fox News hosts and guests decided to bolster the president’s stolen election claims that are boosting ratings. The imperative to push the “big lie” was so great that they stomped on the reputations of two voting system vendors in the process. They deserve all the consequences arising from this case.