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 Business Network host Maria Bartiromo on Tuesday struggled to get a guest to agree with her that the cartoon character Pepé Le Pew was the latest example of cancel culture gone awry.
The salacious “Looney Tunes” skunk has been scrapped from the line-up for the upcoming “Space Jam” sequel, and Bartiromo suggested this was an instance of cancel culture going “overboard.”
“Cancel culture takes on cartoons,” Bartiromo declared at the top of the segment, which was first pointed out by Mediaite. “Bugs Bunny better watch out – they’re coming for him.”
Wall Street Journal writer Jon Hilsenrath, who joined Bartiromo to discuss the skunk’s fate, was not on the same page.
“Maria, I’m watching those videos that you have of this – I always used to think that cartoon was funny – but he is kind of grabbing and groping in ways that are just totally unacceptable today,” Hilsenrath said. “I kind of think norms change over time. And maybe it’s time for Pepé Le Pew to beat it.”
Pushing back, Bartiromo said, “But I mean are we going overboard here? Dr. Seuss, Mr. Potato Head. Come on, Jon.”
“I mean, I think we can go overboard. But watch that video! He’s grabbing that poor little cat in ways that you could never get away with right now,” Hilsenrath said in response, referring to Pepé Le Pew.
It’s not entirely clear why the skunk will not be in the upcoming film, per reporting from NBC News, but there’s speculation it’s linked to criticism of the character’s tendency to make unwanted advances.
More recently, a New York Times opinion piece by Charles Blow, which was cited by Bartiromo in Tuesday’s segment, asserted that Pepé Le Pew normalizes “rape culture.”
Fox has focused heavily on cancel culture in recent coverage, with hosts like Tucker Carlson bashing a recent move to stop the publication of six Dr. Seuss books that contained racist imagery. Republicans in Congress like Rep. Jim Jordan of Ohio have echoed these sentiments, prompting criticism from Democrats who say the GOP has warped priorities.
“House Democrats are the party of crushing the coronavirus and providing relief to everyday Americans,” Democratic Rep. Hakeem Jeffries of New York said Tuesday. “House Republicans are the party of fake outrage as it relates to Dr. Seuss.”