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Jeenah Moon

Fox News is paying the price for its obeisance to former president Donald Trump. In December, a Delaware judge ruled that the $1.6 billion defamation suit filed by voting-tech firm Dominion Voting Systems could proceed. And on Tuesday, New York state Judge David B. Cohen <a href="https://variety.com/2022/tv/news/fox-news-smartmatic-lawsuit-1235199493/" target="_blank">issued a similar ruling</a> in a $2.7 billion case filed by voting systems firm Smartmatic.

Both firms were smeared as part of Fox News’s promotion of Trump’s "big lie" that the 2020 presidential election was stolen from him — and that the companies were part of the fraud.

“At this nascent stage of the litigation,” wrote Cohen in his ruling, “this Court finds that plaintiffs have pleaded facts sufficient to allow a jury to infer that Fox News acted with actual malice, since it conceivably had a ‘high degree of awareness of falsity’ or ‘serious doubts as to the truth’ of the statements made.”

On that basis, Cohen denied Fox News’s <a href="https://www.courthousenews.com/wp-content/uploads/2021/02/Fox-Smartmatic-MTD-Brief.pdf" target=_blank>motion to dismiss the case</a>, which relied in part on the argument that the segments in question were newsworthy and thus qualified for First Amendment protections. Other defendants named in the Smartmatic suit include Trump’s personal attorneys Rudolph W. Giuliani and Sidney Powell, Fox News hosts Maria Bartiromo and Jeanine Pirro, and former Fox Business host Lou Dobbs. Cohen did dismiss the company’s claims against Powell and Pirro, as well as some claims against Giuliani.

In a statement, the network said it would appeal the ruling. "We will also continue to litigate these baseless claims by filing a counterclaim for fees and costs under New York’s anti-SLAPP statute to prevent the full-blown assault on the First Amendment which stands in stark contrast to the highest tradition of American journalism.”

Nervy stuff there from the country’s top purveyor of politically loaded falsehoods. The <a href="https://www.smartmatic.com/uploads/Smartmatic_Complaint_Against_Fox_Corporation.pdf" target=_blank>270-plus pages of Smartmatic’s complaint</a> lay out an attack on truth and decency that played out again and again on Fox News’s airwaves.

As for Cohen’s legal reasoning, he noted that, under New York libel law, plaintiffs bringing a case involving “public petition and participation” can recover damages only if they meet the stringent “actual malice” standard — that is, <a href="https://www.nysenate.gov/legislation/laws/CVR/76-A" target=_blank>that the media organization knew that the statements in question were false or made with reckless disregard thereof</a>.

Tucker Carlson, Fox News’s top-rated host, figured in the judge’s determination that the network could have run afoul of the standard. Back in November 2020, Carlson did a segment regarding the claims of Sidney Powell, a lawyer who pushed Trump’s claims of electoral fraud. He pressed Powell for evidence of her claims and later reported on air that she didn’t furnish the goods.

“Ironically, the statements of Tucker Carlson, perhaps the most popular Fox News host, militate most strongly in favor of a possible finding that there is a substantial basis that Fox News acted with actual malice,” wrote Cohen, who went on to claim that “Fox News knew, or should have known, that Powell’s claim was false, and purposefully ignored the efforts of its most prominent anchor to obtain substantiation of claims of wrongdoing” by Smartmatic.

An even more devastating bit of judicial dismissal came when Cohen blasted numerous falsehoods from Dobbs, who lost his show in early 2021. "Dobbs’ extremely serious claims that [Smartmatic] sent votes out of the country to be counted, that [Smartmatic] changed votes in the Venezuelan election of 2013, that there was probable cause to investigate the company, that [Smartmatic’s] software was designed to change votes without detection, and that [Smartmatic] was involved in a cyberattack on the election could be found to be 'so inherently improbable that only a reckless person would have put [them] in circulation.”

As for Bartiromo, Cohen cited her statement that there was a “back door” in Smartmatic software indicating how many votes needed to be switched to throw an election. That could well be a “fabrication,” he wrote, considering that she didn’t identify the source that it rested on. In the case of Pirro, Cohen wrote, the anchor didn’t specify that Smartmatic software was used to steal votes. He dismissed Powell from the case for jurisdictional reasons.

Cohen’s ruling tracks with an August hearing on the case, when he repeatedly pressed the defendants’ attorneys on the factual integrity of the outrageous representations about Smartmatic. At one telling point, he asked about Dobbs’ claim that Smartmatic had been subject to some sort of ban in Texas. "Where did that come from and how is that not defamatory? Did any evidence ever come to light that Smartmatic was banned in Texas or did Mr. Dobbs ever try to ascertain if there was any proof of such?” asked the judge. <a href="https://www.washingtonpost.com/opinions/2021/08/19/fox-news-big-lie-segments-face-judicial-comeuppance/" target=_blank>The answer wasn’t convincing</a>.

Nor is there anything convincing about Fox News’s defense in this case. In the consequential weeks after the 2020 election, a cabal of Fox News hosts and guests decided to boost the stolen-election claims of the ratings-boosting president. The imperative of pushing the “big lie” was so great that they trampled the reputations of two voting systems providers in the process. They deserve all the consequences stemming from this case.

Hamilton College, BA in Government

Georgetown University, MS in Foreign Service

Erik Wemple, The Washington Post's media critic, focuses on the cable-news industry. 

Erik Wemple

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Smartmatic’s defamation suit against Fox News may proceed, judge rules

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Promotion of Trump’s ‘big lie’ is costing Fox News