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.
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.
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.
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.
Fox News Media canceled “Lou Dobbs Tonight,” which aired on Fox Business Network, and is moving to part ways with longtime host and Donald Trump supporter Lou Dobbs, according to the Los Angeles Times.
Over the last few months and throughout Trump’s presidency, Dobbs frequently parroted the former administration’s talking points and repeated false assertions of voter fraud in the 2020 election.
The show’s final airing will be on Friday with a substitute anchor.
According to the LA Times, next week, Fox will replace the show with a new one called “Fox Business Tonight,” with rotating hosts Jackie DeAngelis and David Asman. Dobbs is still under contract but is not expected to have any role on the network in the future, the LA Times reported.
“As we said in October, Fox News Media regularly considers programming changes and plans have been in place to launch new formats as appropriate post-election, including on Fox Business,” a Fox News Media spokesperson told the LA Times. “This is part of those planned changes. A new 5 p.m. program will be announced in the near future.”
The show’s cancelation also comes in the wake of voting software company Smartmatic filing a $2.7 billion defamation suit against Fox Corporation, Fox News, and hosts Lou Dobbs, Jeanine Pirro, and Maria Bartiromo. Fox News Media says it stands by its reporting of the November 2020 election and told the LA Times that the parting with Dobbs was not a result of the suit.
Fox News Media did not immediately respond to a request for comment. We will update as needed.
Over the weekend, Fox News aired a segment that debunked some of the election fraud claims made by its own hosts and anchors.
The network put together a news package that ran across various Fox News and Fox Business Network shows, starting with Lou Dobbs’ show on Friday night. Fox created the segment in response to a legal threat from election software company Smartmatic.
On December 10, Smartmatic hit Fox with a 20-page demand letter obtained by Business Insider asking for “a full and complete retraction of all false and defamatory statements and reports” about the 2020 election.
Fox News engaged in “a concerted disinformation campaign against Smartmatic” by “continually and repeatedly published demonstrably false information and defamatory statements,” said the letter, which was addressed to Fox News executive vice president and general counsel Lily Fu Claffee.
“Fox News told its millions of viewers and readers that Smartmatic was founded by Hugo Chávez, that its software was designed to fix elections, and that Smartmatic conspired with others to defraud the American people and fix the 2020 U.S. election by changing, inflating, and deleting votes,” the letter said.
After the election was called for Joe Biden, Dobbs and other Fox hosts have staunchly defended President Donald Trump’s unsubstantiated claims of widespread voter fraud. Trump’s personal lawyer Rudy Giuliani – who is one of the people spearheading dozens of lawsuits alleging fraud – appeared on Fox News to cast doubt on the election results. Sidney Powell, another attorney Trump hired to challenge the election, also appeared on the network.
In its letter to the network, Smartmatic said Fox should not have offered either of them a platform to spread baseless claims to millions of people nationwide.
“Fox News used its anchors and on-air guests, including Rudy Giuliani and Sidney Powell, to spread lies about a company that had absolutely nothing to do with the voting that took place in areas at the heart of the ‘conspiracies’ discussed following the 2020 U.S. election,” the letter said.
Fox’s segment in response to the letter debunked election fraud claims from both Giuliani and Powell, as well as other Trump supporters.
In the segment’s original airing Friday night on his primetime evening show, Dobbs introduced the package by telling viewers that “there are lots of opinions about the integrity of the election.” He then brought on Edward Perez, who works with the Open Source Election Technology Institute, a nonprofit dedicated to evaluating election technology.
“I have not seen any evidence that Smartmatic software was used to delete, change, alter, anything related to vote tabulation,” said Perez, who spoke in what appeared to be a prerecorded segment.
A Fox News spokesperson confirmed to Business Insider that the segment aired on “Lou Dobbs Tonight” on Friday, “Justice with Judge Jeanine” on Saturday, and “Sunday Morning Futures” on Sunday.
SmartMatic sent out letters containing similar demands to other conservative networks, including Newsmax and One America News, a spokesperson at the election software company told Business Insider. Newsmax and One America News did not immediately return requests for comment.