After droves of their once-secret communications spilled in the public domain in the Dominion litigation — from Rupert Murdoch’s depositions to their top hosts’ private chats — Fox News returned to court on Thursday to spar with a different legal adversary.
Fox’s various corporate entities have been battling multiple billion-dollar lawsuits against voting machine companies in the wake of the 2020 presidential election. In Delaware, Dominion Voting Systems seeks damages to the tune of $1.6 billion, and in New York, Smartmatic demands $2.7 billion.
In a hearing in lower Manhattan on Thursday, Smartmatic’s attorney Nicole Wrigley complained that Fox News has been fighting them on disclosures, taking advantage of the Empire State’s expansive journalist shield laws.
“We’re having to fight, frankly, over everything,” Wrigley said.
Fox’s lawyer K. Winn Allen, from the firm Kirkland & Ellis, noted that New York law affords a “mantle of protection that’s the strongest in the nation for media organizations.”
Wrigley disputed that New York’s shield law is as expansive as Fox claims it is.
“‘Hit-and-run’ journalism is no more protected under the First Amendment than speeding on a crowded sidewalk is permitted under a valid driver’s license,” she said, citing the New York precedent Greenberg v. CBS.
By far, Dominion’s lawsuit has led to the most significant revelations about Fox’s coverage of former President Donald Trump’s efforts to overturn the 2020 election. Smartmatic says that discovery for them has been quite narrow, dating back to the time of the first allegedly broadcast: October 2020 and through Feb. 4, 2021.
Wrigley argued that what happened before and after that time frame may be relevant to their case.
For example, Smartmatic wants information about the creation of Fox’s so-called “election integrity unit” in September 2020, Wrigley said. She also requested information months after the broadcasts at issue in the case, past the firing of Lou Dobbs in early 2021.
“We are in a big, high-profile case,” she noted.
Asking why that is, Wrigley answered her own question: “They put [Smartmatic] at the center of a massive conspiracy to steal this election from President Trump.” She noted that the theory was always false because Smartmatic only provided the voting machines in Los Angeles County, where President Joe Biden’s victory was never in doubt.
“We’re seeking to hold Fox accountable for spreading these lies,” Wrigley said.
Manhattan Supreme Court Justice David B. Cohen encouraged Wrigley to stick to the discovery dispute — and avoid a broad overview of her allegations.
“Okay, counsel, I know the background,” Cohen interrupted. “We all know the background.”
Smartmatic wants Justice Cohen to overrule certain discovery limitations imposed by Justice Alan C. Marin, the judicial hearing officer presiding over their pretrial wrangling with Fox.
Fox’s attorney Devin S. Anderson also has been contesting certain rulings by Marin. He wants the judge to allow the network to pore over Smartmatic’s communications with the Department of Justice, which is investigating the voting machine company for alleged conduct unrelated to the 2020 election.
As first reported by Semafor in September 2022, the Justice Department has been looking into whether Smartmatic engaged in bribery in the Philippines. Fox claims that the issue, while irrelevant to the 2020 election, might be relevant to Smartmatic’s multi-billion dollar damages claim.
Since business in the Philippines is “a key driver of Smartmatic’s revenue,” Fox’s lawyer argues that they deserve any information the company gave the Justice Department to answer the question: “Is Smartmatic worth as much as it claims?”
The Dominion case highlights the stark difference between the relatively narrow information that Smartmatic received and the vast stores of information unearthed in Delaware.
Murdoch’s testimony — and that of other top-ranking officials like director Paul Ryan, a former Republican congressman, and top lawyer Viet Dinh, an ex-assistant attorney general under George W. Bush — became public in the case filed by Dominion in Delaware. Unsealed messages and testimony showed the men refuting former President Donald Trump’s conspiracy theories about the 2020 presidential election. Fox News president Jay Wallace unfavorably compared Dobbs’s coverage of the 2020 political conventions to North Korean propaganda, and Murdoch labeled Dobbs an “extremist.”
In a text message, Murdoch described Rudy Giuliani’s press conference announcing plans to attack the results with Sidney Powell as “really crazy stuff.” Fox carried the press conference in full, and Dominion says the network clamped down on journalists who fact-checked false claims about the election.
Last month, an intermediate court of appeals in New York affirmed a ruling sending that case to discovery — and revived certain claims against Giuliani and host Jeanine Pirro.
On Feb. 15, 2023, a five-judge panel unanimously found that Smartmatic adequately alleged that Fox News, Giuliani, Pirro and Maria Bartiromo either knew that the voting machine conspiracy theories were false — or had serious doubts about their veracity — when they aired. The court dismissed claims against Fox Corporation, allowing Smartmatic to replead claims against that entity. Fox Corporation’s lawyers indicated that they will try to dismiss those claims again.
Smartmatic says that the network and those invited on the air effectively endorsed the claims, despite knowing that they were either dodgy or bunk.
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