Rudy Giuliani, Sidney Powell, and Fox News have August date confirmed for court bid to dismiss $2.7 billion Smartmatic lawsuit

A Fox News broadcast featuring host Lou Dobbs and lawyer Rudy Giuliani
A November 12, 2020 Fox News broadcast screenshot filed as an exhibit by Smartmatic in May.

  • Rudy Giuliani and Fox News will argue for dismissal of a $2.7 billion defamation case on August 17.
  • Voting-machine company Smartmatic said they spread false claims about the presidential election.
  • Defendants include Trump lawyers Giuliani and Sidney Powell, along with a cast of Fox News hosts.
  • See more stories on Insider’s business page.

A New York Supreme Court on August 17 will hear arguments from Rudy Giuliani, Sidney Powell, and Fox Corporation in their bid for the dismissal of a $2.7 billion defamation case brought by Smartmatic.

The election-technology company said in its February complaint that the defendants – including Fox News and hosts Jeanine Pirro, Maria Bartiromo, and Lou Dobbs – spread disinformation about the November 2020 presidential election.

The arguments are set for 9:30 a.m. in front of Judge David Benjamin Cohen, according to the court.

Giuliani and Powell, lawyers for President Donald Trump, appeared on Fox News following the election to say the election had been rigged by Smartmatic and Dominion Voting Systems.

The pair “needed to identify a villain” to make their story about election fraud work, Smartmatic said in its complaint.

The complaint said: “They knew of President Trump’s popularity. They knew he had millions of loyal followers. To rile them up, to get them angry, to get them to donate money, Mr. Giuliani and Ms. Powell needed a villain in their story. They needed someone they could say had rigged and stolen the election from a President admired and adored by millions.”

It added: “Mr. Giuliani and Ms. Powell settled on two villains: Smartmatic and Dominion.”

Fox News in April sought to dismiss the case, saying its hosts didn’t have a responsibility to fact-check lawyers for a sitting president.

Powell’s lawyers earlier this month said her Fox News spots were “about election integrity” and were not attempts to raise money.

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Fox News argues its hosts didn’t need to fact-check election conspiracy theories from Trump’s lawyers in response to Smartmatic defamation suit

Lou Dobbs Fox Business News
Former Fox News host Lou Dobbs.

  • Fox News is trying to dismiss a $2.7 billion lawsuit from Smartmatic over election conspiracies.
  • It argues its hosts didn’t have a legal responsibility to fact-check falsehoods from Trump’s lawyers.
  • Election conspiracy theories have led to a tangle of legal consequences for right-wing media.
  • See more stories on Insider’s business page.

Attorneys representing Fox News once again asked a New York court to dismiss a defamation lawsuit from Smartmatic over conspiracy theories about the 2020 election, arguing its hosts didn’t have a responsibility to fact-check the attorneys hired by Donald Trump.

“Smartmatic asks this Court to become the first in history to hold the press liable for reporting allegations made by a sitting President and his lawyers,” the attorneys wrote in a brief filed to court Monday, later adding: “Smartmatic identifies no case in the history of our nation in which the press was held liable for reporting allegations made by or on behalf of a sitting President.”

The lawsuit, filed in February, asks for $2.7 billion in damages and accuses Fox News of waging a disinformation campaign that irreparably damaged Smartmatic’s reputation. It also targets three individual hosts – Maria Bartiromo, Jeanine Pirro, and Lou Dobbs – who hosted Trump’s attorneys, Rudy Giuliani and Sidney Powell.

Powell and Giuliani had promoted conspiracy theories baselessly claiming that Smartmatic was secretly in cahoots with Dominion Voting Systems, a rival election technology company, in a complicated scheme to manipulate the 2020 presidential election that involved now-dead Venezuelan president Hugo Chavez.

Dozens of lawsuits, audits, investigations, and recounts have found no evidence of widespread fraud in the 2020 election.

The false claims have led to a messy fallout. Trump fired Powell in late November, and Giuliani distanced himself from her even as he continued to advance conspiracy theories. Dominion sued Powell, Giuliani, Fox News, and other right-wing media figures that pushed those theories. And Fox News canceled Lou Dobb’s show shortly after Smartmatic filed its lawsuit.

jeanine pirro fox news
A screenshot of a Fox News broadcast featuring Jeanine Pirro, included as an exhibit in Fox News’ motion to dismiss the case.

Fox News first asked a judge to dismiss the case a few days after it was filed. On Monday, the network’s attorneys at Kirkland & Ellis LLP asked the judge to dismiss the claims against the individual hosts as well. The attorneys argue the legal standards for defamation don’t require the hosts to investigate whether Powell’s and Giuliani’s claims are actually true.

“Smartmatic simply identifies information ‘available to’ the public that it thinks the Fox hosts should have researched. But such ‘failure to investigate’ claims do not rise to the level of actual malice,” the attorneys wrote, citing other legal cases.

In earlier filings, Smartmatic said that the Fox News hosts’ failure to push back against false claims from Powell and Giuliani was itself defamatory, and said that the media organization shouldn’t receive legal protections normally given to journalists.

The new filings from Fox News spend dozens of pages going through individual claims from Bartiromo, Pirro, and Dobbs, arguing their comments were summaries of what Trump’s lawyers said, opinions protected by the First Amendment, or statements that didn’t directly mention Smartmatic and therefore didn’t need to be defended in the lawsuit.

As one example, Fox News’ attorneys cite a tweet included in Smartmatic’s lawsuit where Dobbs wrote, “Read all about Dominion and Smartmatic voting companies and you’ll soon understand how pervasive this Democrat electoral fraud is, and why there’s no way in the world the 2020 Presidential election was either free or fair.”

They wrote the statement was simply an opinion, and that statements on Twitter should not be taken seriously.

“New York courts have recognized that Twitter is not a natural setting in which a reasonable viewer would conclude that he is hearing actual facts about the plaintiff,” the lawyers argue.

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