Fox hosts Maria Bartiromo and Jeanine Pirro and former Fox Business host Lou Dobbs on Thursday each filed a memorandum in support of dismissing voting technology company Smartmatic’s billion-dollar lawsuit. The move came just days after Fox News also filed a motion to dismiss in New York state court, arguing that the network “did exactly what the First Amendment protects” by providing “‘uninhibited, robust, and wide-open’ debate on rapidly developing events of unparalleled importance.”
Each of the individuals defendants contend that Smartmatic’s defamation lawsuit failed to state a claim, sued over speech that was protected by the First Amendment, and failed to allege actual malice.
The filings largely assert that Bartiromo, Pirro, and Dobbs were just doing their jobs in their handling of Sidney Powell and Rudy Giuliani’s never-proven election fraud allegations.
When the President of the United States and his legal team leveled allegations that the 2020 Presidential election was tainted by fraud, veteran news anchor Maria Bartiromo did her job: She covered that unquestionably newsworthy story. She did so by going straight to the source of those claims: the President and his attorneys Rudy Giuliani and Sidney Powell. In addition to securing the first post-election interview of President Trump—an interview so self-evidently newsworthy and protected by the First Amendment that Smartmatic largely ignores it—she also interviewed his lawyers, asking them what evidence they had to substantiate their claims, and reminding her audience of the need for (and later, the absence of) hard facts to back them up. She invited her other guests to comment on and criticize the President’s claims—an invitation that Smartmatic was extended but ignored.
Virtually every media outlet in the nation reported on the President’s accusations and the lawsuits. Bartiromo did the same.
Although Smartmatic’s 285-page complaint has a lot to say about a lot of things, it has very, very little to say about Judge Pirro. The paltry allegations about her are largely limited to the following: First, on November 14, 2020, in the immediate wake of the presidential election, Pirro interviewed the President’s attorney and former federal prosecutor Sidney Powell to discuss the President’s efforts to mount legal challenges to the 2020 election results
As Powell explained her allegations of fraud against Smartmatic and others, Pirro pushed back. She countered that the companies, including Smartmatic, “denied that they have done anything improper[,] and they denied that this claim that there’s six thousand votes that went from President Trump to Biden had anything to do with their software,” and she asked Powell “what evidence” Powell had to “prove” her case.
Dobbs, now a former host:
Veteran political commentator Lou Dobbs engaged in political commentary on these issues just as he has engaged in spirited commentary on deeply important matters of public concern for decades. When Dobbs brought his trademark style to commenting on the breaking story about the integrity of the election—including by interviewing members of the President’s legal team and offering opinions on their allegations—he was fully exercising his rights as a member of the press to address matters of public interest. Moreover, the complaint comes nowhere close to alleging the type of intent required to pierce First Amendment protections and hold a commentator liable for reporting on newsworthy matters of the highest order. For these reasons, and those explained below, this lawsuit should be dismissed as antithetical to the First Amendment and inconsistent with our nation’s proud heritage of giving the media broad latitude to offer opinion and commentary on newsworthy matters.
“In sum, Smartmatic’s 285-page, $2.7 billion complaint is not just meritless; it is a legal shakedown designed to chill speech and punish reporting on issues that cut to the heart of our democracy,” the Bartiromo filing argues. “It is, in short, exactly the kind of lawsuit that both the First Amendment and New York’s anti-SLAPP law are designed to eliminate at the threshold.”
Fox News Media released a statement suggesting that Smartmatic is taking the Constitution hostage to solve a “money-losing” problem.
“Smartmatic’s headline-seeking, multi-billion-dollar lawsuit thus should be seen—and rejected—for what it is: an unconstitutional attempt by a money-losing company (Smartmatic reported $17 million in losses on just $144 million in revenue in 2019) to try to refill its coffers at the expense of our constitutional traditions,” the statement said.
Law&Crime reached out to a Smartmatic attorney for comment on the latest filings and Fox’s statement about the litigation.
Smartmatic was only used in Los Angeles County for the 2020 election, a county Donald Trump had no chance of winning. Fox aired fact-checks on or around December 20, 2020, citing Eddie Perez of the Open Source Election Technology Institute. Perez said it was his understanding that Smartmatic was, indeed, only used in Los Angeles County. Giuliani and Powell’s Smartmatic allegations began in mid-November 2020.
The Bartiromo and Pirro filings each highlight instances, outside of the fact-check mentioned above, where the hosts asked about proof.
Bartiromo, on Nov. 15:
She observed that proving these allegations would be “a tall task.” (Id. at 3.) Bartiromo began by introducing “President Trump’s personal attorney,” Rudy Giuliani, who spoke about the election-fraud allegations he was making on the President’s behalf, including as to Smartmatic. Bartiromo’s first response was, “will you be able to prove this Rudy?”
As with Giuliani, Bartiromo’s immediate response was to repeatedly question whether Powell could actually prove her allegations: “So Sidney, you feel that you will be able to prove this? Do you have the software in your possession? Do you have the hardware in your possession? How will you prove this Sidney?” (Id.) Bartiromo stressed that “you have a very … small time frame here. The elections are supposed to be certified in early December.”
Pirro, on Nov. 14:
After Powell stated that there were “[a]ll kinds of different means of manipulating the Dominion and Smartmatic software,” Pirro quickly jumped in to push back: “Well, and now that you mention it,  they’ve denied that they have done anything improper and they denied that this claim that there’s six thousand votes that went from— from President Trump to Biden had anything to do with their software. … [W]hat evidence do you have to prove this?” (Id. at 2-3.) Throughout the interview, Pirro continued to push Powell on what her strategy and evidence was, asking, “what is your intent here?,” and “how do you … prove that on election night, or immediately thereafter, that at the time that the votes were being either tabulated or put in, that we can prove that they were flipped?” (Id. at 3.) Finally, Pirro closed by reiterating that it was Powell’s “mission” to uncover voter fraud in connection with the 2020 election.
The Dobbs filing was lighter on examples of him asking for proof, but it did cite instances in bullet points where he noted Smartmatic and Dominion had denied allegations. One question Dobbs posed to Powell was also highlighted:
- On November 16, Dobbs stated on Lou Dobbs Tonight: “Smartmatic … told us today that they only provided technology and software in Los Angeles County during this year’s presidential election.” (NYSCEF.Doc.No.16, Pls.Ex.14.at.3.)
- On November 17, Dobbs stated on Lou Dobbs Tonight: “[W]e’ve asked both Dominion and Smartmatic about their role on the CISA [Cybersecurity and Infrastructure Security Agency] November 12th statement disputing election fraud or intervention by foreign governments. Smartmatic said they didn’t have any input.” (NYSCEF.Doc.No.194, Fox.Ex.15.at.5.)
- On November 19, Dobbs noted on Lou Dobbs Tonight: “Smartmatic and Dominion deny those charges,” and he asked Powell: “[W]hen do you believe you will be prepared to come forward with hard evidence establishing the basis for a court to overturn elections or at least results of those elections in a number of battleground states?” (NYSCEF.Doc.No.27, Pls.Ex.25.at.4, 13.).
- On November 19, Dobbs stated on Lou Dobbs Tonight: “Dominion Voting Systems today once again distanced itself from Smartmatic, saying Dominion is an entirely separate company and fierce competitor to Smartmatic and quote, ‘Dominion and Smartmatic do not collaborate in any way and have no affiliate relationship or financial ties.’” (NYSCEF.Doc.No.27, Pls.Ex.25.at.8-9.)
- On December 10, Dobbs asked Powell on Lou Dobbs Tonight: “What is the evidence that you have compiled?” (NYSCEF.Doc.No.40, Pls.Ex.38.at.3.)
The Dobbs filing also emphasized that his now-former show Lou Dobbs Tonight was “an opinion show” on which Dobbs “also provided his own opinion and commentary on the election and its legitimacy.” Dobbs’ remarks were described as “spirited opinion commentary” that his viewers had grown accustomed to:
In one segment, he explained that “[t]his looks to me like it[’s] the end of what has been a … four and a half year long effort to overthrow the President of the United States. It looks like it’s exactly that … these are all parts of a piece here.” (NYSCEF.Doc.No.3, Pls.Ex.1.at.6.) In another segment, he commented that “[t]his is a nation that has just been wronged mightily. Only an idiot would try to claim that there were no irregularities, that there were no anomalies ….” In some segments, he expressed his appreciation for President Trump: “[T]hank God we’ve got a President who will stay in the fight all the way through until we get those answers.” (NYSCEF.Doc.No.17, Pls.Ex.15.at.8.) He also expressed his distaste for other government officials: “What are we dealing with here and how can we get to this if we have an Attorney General who has apparently lost both his nerve and his commitment to his oath of office and to the country. We have an FBI director who seems to be as politically corrupt as anyone who preceded him, and a Homeland Security Department that doesn’t know what the hell it’s talking about and is spending more time playing politics … than securing the nation.” (NYSCEF.Doc.No.41, Pls.Ex.39.at.2-3.) That is the kind of spirited opinion commentary on the nation’s top law enforcement officials that could only occur in a nation committed to First Amendment principles. That is also the kind of spirited opinion commentary that viewers of Lou Dobbs Tonight had come to know and expect.
The “opinion and spirited debate” argument is one we have heard before after another Fox host got sued. Karen McDougal’s case again Tucker Carlson case was ultimately dismissed; the judge found that McDougal failed to plead actual malice and noted that “Fox persuasively argues, that given Mr. Carlson’s reputation, any reasonable viewer ‘arrive[s] with an appropriate amount of skepticism’ about the statements he makes.”
MSNBC lawyers argued along these very lines when defending host Rachel Maddow against a defamation lawsuit that was filed by One America News Network (OAN). That lawsuit was ultimately dismissed. Just last week, OAN was ordered to pay $250,000 in attorneys fees for filing a frivolous action against Maddow.
Read the documents below:
[Image via Fox screengrab]
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