Smartmatic, the voting technology company that was the focus of multiple conspiracy theories surrounding the 2020 presidential election, asked a judge in New York to reject Fox News’s attempt to dismiss a lawsuit accusing the network and several anchors of knowingly engaging in a multi-month “disinformation campaign” against the company.
The 120-page motion, filed Monday evening in New York state court, argued that Fox News and its employees cannot use the First Amendment as a shield against the demonstrably false claims laid out in the initial complaint.
The $2.7 billion suit — which also names Fox personalities Maria Bartiromo, Jeanine Pirro, former Fox host Lou Dobbs, and lawyers Sidney Powell and Rudy Giuliani — stems from the airing of false claims and assertions that Smartmatic’s voting machines and software were part of a widespread scheme to steal the election from Donald Trump. Smartmatic said they only provided election services to one county in the 2020 election. That was Los Angeles County, which Joe Biden won.
“This is not a game. The First Amendment does not provide the Fox Defendants a Get Out Of Jail Free card,” the motion stated. “The Fox Defendants do not get a do-over with their reporting now that they have been sued.”
Smartmatic’s attorney, J. Erik Connolly, submitted the motion after Fox News sought to have the suit tossed by claiming their coverage of the election was protected speech. Bartiromo, Pirro, and Dobbs have each moved to dismiss the case as well. Lawyers for Fox argued that when the President of the United States and his surrogates publicly allege that an election was rigged, stolen, or otherwise improperly (or at least questionably) conducted, the press has a constitutional right to be able to disseminate and dissect those comments in the public sphere.
“This suit strikes at the heart of the First Amendment,” said Fox News attorney (and former U.S. Solicitor General) Paul Clement of Kirkland & Ellis. “Smartmatic’s theory is fundamentally incompatible with the reality of the modern news network and deeply rooted principles of free speech law.”
“In short, FOX did exactly what the First Amendment protects: It ensured that the public had access to newsmakers and unquestionably newsworthy information that would help foster ‘uninhibited, robust, and wide-open’ debate on rapidly developing events of unparalleled importance,” court documents said.
Smartmatic’s response, in short, contended that constitutional free speech protections do not apply if the speaker knows the underlying claims are not true.
“The Fox Defendants solicited and published calculated falsehoods about Smartmatic. They enjoy no protection or immunity pursuant to the First Amendment or New York law,” Connolly wrote, adding, “The motions filed by the Fox Defendants are predicated on a version of events that they may now wish took place, but did not.”
Connolly also argued that Fox’s decision to repeatedly bring Giuliani and Powell on as guests to speak about their “personal investigation” of election fraud meant that the network couldn’t distance itself from their statements. Smartmatic claimed that Fox News anchors asked questions not to tell the truth but to “elicit lies” about the company.
“The Fox anchors were not innocent bystanders and the disinformation generated during their interviews was no accident. Prior to the interviews, the Fox anchors decided to join forces with Giuliani and Powell to disseminate disinformation about Smartmatic,” the motion stated. “The Fox anchors knew what Giuliani and Powell would say on their shows, asked questions to elicit lies about Smartmatic, and endorsed Giuliani’s and Powell’s investigation. The Fox anchors added their own defamatory comments about Smartmatic for good measure. This was a scripted performance by the Fox anchors, Giuliani, and Powell to defame and disparage Smartmatic for personal gain.”
In an email to Law&Crime, a Fox News spokesperson said the network’s coverage of the election was not defamatory.
“The filing only confirms our view that the suit is meritless and FOX News covered the election in the highest tradition of the First Amendment,” the spokesperson said.
Speaking about Fox’s coverage of the company, Smartmatic CEO Antonio Mugica said Monday: “This was a campaign based on falsehoods that strikes at the very heart of our company’s principles.”
Read the full filing below.
[image via Fox Business screengrab]
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