Fox News is calling for the dismissal of Smartmatic’s $ 2.7 billion libel suit, claiming it provided newsworthy information protected by the First Amendment by presenting President Donald Trump’s surrogates and their false claims that the company was involved in electoral fraud.
The network and its parent company, Fox Corp., argued in a motion to dismiss (read it here) that Smartmatic could have a libel case against Trump’s surrogates if they “fabricated evidence or told lies with real malice ”, but not against“ the media which covered their allegations and allowed them to try to substantiate them ”.
“When a sitting president and his surrogates claim that an election has been rigged, the public has a right to know what they are claiming, period,” the lawsuit says. “When a sitting president and his surrogates sue to challenge the results of an election, the public has a right to know the substance of their claims and what evidence supports them, period. In this context, questioning the President’s attorneys is a fully protected First Amendment activity, whether or not those attorneys can substantiate their claims. Here, Fox was providing precisely that kind of newsworthy information – usually allowing the presidential surrogates to explain their claims and evidence on their own.
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They added: “Provide a forum for people making statements which can be tested in the crucible of vigorous debate is too important to allow legal action against the media, rather than against those who claim.
Smartmatic, a voting systems company, sued Fox Corp on Thursday. and Fox News, claiming in a 285-page lawsuit that its reputation was the network and that it had been “irreparably damaged” when some of its news personalities and guests targeted the company as responsible for the elections.
In their trial, Smartmatic accuses the defendants, disappointed that Joe Biden and Kamala Harris won the election, of making up the story of the company’s involvement in voter fraud. In their complaint, Smartmatic identified 13 segments of Fox News from November through December, in which on-air personalities and guests implied or said the company “stole the 2020 US election.”
Smartmatic’s claims aren’t just about what guests told on-air hosts, but what some of those Fox News figures themselves said. Among other things, they cited a case where Dobbs falsely claimed that Smartmatic and Dominion, another voting systems company, had sent servers out of the country. On his November 12 broadcast, Dobbs said, “And by the way, states, as you well know by now, don’t have the ability to meaningfully verify the votes cast because the servers are elsewhere and are considered owners and that they will not touch them. It will not allow them to be affected.
But in its motion to reject, Fox News said that din the weeks following the election, “and as the story continued to unfold, several Fox hosts – including Bartiromo, Dobbs, Pirro and others – and guests on Fox broadcasts repeatedly briefed the viewers that Smartmatic had denied that its technology was involved in electoral manipulation and / or asked Giuliani, Powell and others close to President Trump if they could substantiate their claims.
The motion to dismiss was filed on behalf of Fox Corp. and Fox News, but not the other defendants named in the Smartmatic lawsuit. They include three Fox News Media personalities, Lou Dobbs, Maria Bartiromo and Jeanine Pirro, and two Trump surrogates who were guests on their shows, Rudy Giuliani and Sidney Powell.
On Friday, the day after the Smartmatic lawsuit was filed, Fox News confirmed it had canceled the Fox Business show from Dobbs, Lou Dobbs tonight.
In its motion to dismiss, Fox News also argued that Smartmatic is a public figure, which means it would have to prove that the network “published the contested statements with real nastiness – a conscious or reckless disregard for the truth.” .
“Smartmatic cannot go beyond the pleading stage unless it alleges facts to prove that Fox knowingly or recklessly tampered with its coverage on Smartmatic,” the network said. “Smartmatic’s complaint does not allege any such thing. At most, Smartmatic alleges Fox negligently neglected to investigate guest statements in advance, a theory dismissed by Supreme Court precedent.
Fox News is represented by Paul Clement of Kirkland & Ellis, who said in a statement: “This lawsuit strikes at the heart of the First Amendment. Smartmatic’s theory is fundamentally incompatible with the reality of the modern information network and the deeply rooted principles of free speech law. Clement was Solicitor General under George W. Bush.
The network said in a statement, “Fox News has decided to dismiss the Smartmatic lawsuit as it is without merit. If the First Amendment means anything, it means Fox cannot be held responsible for fairly reporting and commenting on competing claims in a hotly contested and actively contentious election. We are proud of our election coverage, which follows the highest tradition of American journalism.