Judge in Smartmatic Suit Cites Tucker’s Rejection of Election Claims to Argue ‘Substantial Basis’ Fox News ‘Acted With Actual Malice’
The judge presiding over Smartmatic’s defamation lawsuit against Fox News cited Tucker Carlson’s rejection of claims the 2020 election was rigged as the evidence that the network acted with “actual malice” against Smartmatic by broadcasting false claims about the election.
New York Supreme Court Judge David Cohen released a 61 page ruling on Wednesday denying Fox News’ motion to dismiss Smartmatic’s $2.7 billion lawsuit. The company filed the suit after the 2020 election, claiming Fox damaged their reputation by airing unsubstantiated allegations that Smartmatic was part of a massive conspiracy to fraudulently swing ballots away from former President Donald Trump.
As flagged by the Washington Post’s Aaron Blake, Cohen’s filing notes that Carlson once questioned whether there was any real evidence behind the “stolen” election narrative. (Watch that segment, from Nov. 2020, above.)
Since the judge identified Carlson as “arguably the single most influential conservative media personality in the United States,” it is precisely because of his skepticism that the case might meet the standard of actual malice because they continued to air election conspiracies.
From page 39:
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. As noted above, on November 19, 2020, Dobbs posted a video of he and Powell on Twitter with a caption stating, inter alia, that Powell “has no doubt that Dominion voting machines run [Smartmatic]’s software which allows [it] to manipulate the votes.” … The same day, Carlson wrote an article stating that, for over a week, Powell had been claiming that the election had been stolen and that, if Powell were correct, it would be the greatest crime in American history, and he thus asked her to substantiate her comments. However, Powell never provided the evidence requested by Carlson, and President Trump’s campaign advised Carlson that it knew of no such evidence. Therefore, there are sufficient allegations 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].
Despite allowing the suit to go forward, Cohen tossed out Smartmatic’s claims against Fox News host Judge Jeanine Pirro, but not the claims against Maria Bartiromo and former Fox Business host Lou Dobbs.
Fox News Media offered this statement on the matter to Mediaite.
While we are gratified that Judge Cohen dismissed Smartmatic’s claims against Jeanine Pirro at this early stage, we still plan to appeal the ruling immediately. 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.
On the subject of Rudy Giuliani, who is also being sued by Smartmatic, page 54 of Cohen’s ruling provides a dissection of the former New York City mayor’s claims that his comments about Smartmatic (referred to as SUSA in the filing) were not the same thing as defamation. It also places a focus on how Giuliani claimed Smartmatic was founded “for the specific purpose of fixing elections,” that it was a “dangerous foreign company” with close ties to Venezuela and China, and that Smartmatic cheated the election for the Democrats because their chairman “is very very close to [George] Soros.”
Page 55 also argues that Giuliani might meet the actual malice standard as well:
Giuliani’s barrage of statements about SUSA adequately provide a substantial basis for its claim that he acted with actual malice insofar as he evinced a reckless disregard for the truth of his statements and/or a high degree of belief that the said information was false. Indeed, there is a substantial basis upon which to find that Giuliani’s representations regarding SUSA are “so inherently improbable that only a reckless person would have put [them] in circulation.
Aside from referring to the flimsy evidence Giuliani provided against Smartmatic, the ruling also notes that Giuliani lost his law license last year because of the “uncontroverted evidence” that he pushed “demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020.”
Giuliani is a central figure in Fox’s alleged defamation “conspiracy” against Smartmatic, and Cohen ruled in his statement that “Fox News turned a blind eye to a litany of outrageous claims about plaintiffs, unprecedented in the history of American elections, so inherently improbable that it evinced a reckless disregard for the truth.”
