Three Fox News hosts — Maria Bartiromo, Lou Dobbs and Jeanine Pirro — are seeking the dismissal of claims against them and their employer as part of a $2.7 billion libel lawsuit brought by the voting technology company Smartmatic.
Bartiromo, Dobbs and Pirro, as well as Donald Trump personal attorney Rudolph Giuliani and pro-Trump lawyer Sidney Powell, were sued this month for the eye-popping amount by Smartmatic, which accused them of conspiring to spread false claims that the company was involved in an effort to steal the presidential election from Trump.
In its motions, lawyers from Kirkland & Ellis, which is also defending Fox, argue Bartiromo, Dobbs and Pirro were doing their job in covering the biggest story of the day: unprecedented allegations by the president that the integrity of the electoral process was marred by fraud.
Smartmatic in its 285-page complaint filed Feb. 4 in state court in New York had cited at least 13 reports on Fox News in which guests or personalities falsely stated or implied that the company had somehow helped steal the election through easily tampered technology or in cahoots with Venezuela’s socialist government.
The complaint alleged that the “disinformation campaign” continued even after then-Attorney General William Barr said the Department of Justice could find no evidence of widespread voter fraud.
“Smartmatic is confident in its case and looks forward to briefing these issues for the Court,” J. Erik Connolly, attorney for Smartmatic, wrote Friday in a statement.
The lawsuit is being closely watched as the rise of far-right voices on social media and pro-Trump outlets like Newsmax and One America News challenge long-held assumptions about the limits of free speech.
The filings by the Fox personalities note instances in which they questioned Powell and Giuliani for evidence to back their claims, as well as Smartmatic’s own denial of the charges. It also argues that Dobbs’ statements appearing to validate the claims of his guests were constitutionally protected opinions, not statements of fact.
“The First Amendment protects the press when it informs the public about judicial proceedings regardless of the accuracy of the underlying allegations,” according to the motion filed on behalf of Dobbs.
On Dec. 18, all three hosts aired a segment with an expert debunking some of the claims that had been made on its networks against Smartmatic and another voting technology company, Dominion.
The Fox Business Network dropped Dobbs’ show Feb. 5, a day after the lawsuit was filed. The network said the move was part of a planned programming shift and not related to the lawsuit.
Bartiromo in her motion suggests an alternate motive for what she calls Smartmatic’s “headline-seeking” lawsuit: an attempt by the company to fill its coffers after reporting losses of $17 million on $144 million in revenue in 2019.
“This 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,” her lawyers argue.
Roy Gutterman, a media law professor at Syracuse University, said Fox in its motion made reasonable arguments about First Amendment rights and its duty to fuel public discourse on important political issues.
“Whether the broadcaster is liable for providing a forum for speakers and what responsibility they have for dealing with false factual statements will be central to the court’s decision,” he said.
Still, he said, if Fox succeeds in persuading the court to dismiss the case, the individual guests — Giuliani and Powell — could still be liable for potentially false and damaging statements.
Smartmatic’s participation in the U.S. election was restricted to a single district, Los Angeles County, which votes heavily Democratic.
That limited role notwithstanding, the company and its technology were widely and baselessly blamed by Trump supporters for somehow tilting the race in favor of Joe Biden. The effects of the negative publicity were swift and included death threats against an executive’s 14-year-old son, the loss of business and an enduring stain on its reputation, Smartmatic claims.
Like many conspiracy theories, the alleged campaign against Smartmatic was built on a grain of truth. The company’s founder and CEO is Venezuelan, and Smartmatic’s initial success is partly attributable to major contracts from Hugo Chávez’s government, an early devotee of electronic voting.
Dobbs, in his motion to join the Fox request for dismissal, points out that he first covered Smartmatic a decade earlier, in 2006, when employed by CNN. At the time the company was facing scrutiny from U.S. lawmakers concerned about its purchase of an American competitor so shortly after it had helped organize elections in Venezuela that were marred by allegations of fraud.
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