A series of blatant lies
Fox has a second lawsuit to deal with.
Smartmatic USA Corporation’s lawsuit against Fox News has attracted only a fraction of the attention garnered by the legal action of Dominion Voting Systems. Yet both firms are suing Fox for defamation related to its coverage of Donald Trump’s stolen-election lie, and both pose a serious threat to Fox’s finances and reputation.
Smartmatic is asking for more money.
So far, attempts by Fox lawyers to have the Smartmatic case dismissed have fallen on stony ground. Last week the New York state supreme court in Manhattan gave the green light for the case to proceed against Fox News, the Fox Business host Maria Bartiromo, the former business anchor Lou Dobbs and Trump’s former lawyer Rudy Giuliani.
Smartmatic, a global election technology company headquartered in London, lodged its defamation suit in February 2021. “The Earth is round,” was the complaint’s striking opening sentence. “Two plus two equals four. Joe Biden and Kamala Harris won the 2020 election … ”
The earth is round. Two plus two equals four. Men are not women.
The complaint goes on to argue that, contrary to these indisputable facts, Fox News broadcast a series of blatant lies in support of Trump’s stolen election conspiracy theory. “Defendants did not want Biden to win the election. They wanted President Trump to win re-election … They also saw an opportunity to capitalize on President Trump’s popularity by inventing a story.”
To prop up that story, the lawsuit claims, Fox needed a villain. That villain was Smartmatic.
Smartmatic claims that over 100 false statements were broadcast by Fox News hosts and guests. Smartmatic was falsely said to have been involved in 2020 election counts in six battleground states – in fact, it was present only at the count in Los Angeles county.
Yebbut First Amendment. Fox might win because of First Amendment, but…one can dream.
Current First Amendment jurisprudence distinguishes public from private figures in slander/libel/defamation cases. For a public figure (like a corporation) to show libel, it has to show that a statement was made with malice. “Malice” here is a legal term which means that the defendant either knew the statement was false, or made the statement with reckless disregard for the truth. That’s a pretty high bar, but the texts that have been produced in the Dominion case show Fox News and its hosts sailing over it handily. IANAL, but IMHO Fox is toast.
Another point that I haven’t seen any commentary on is Tucker Carlson saying that Fox viewers believe the lies that Fox tells them. In past defamation cases, Carlson’s defense has been that he is an entertainer, not a news reporter, and that no “reasonable person” (another legal term of art) would believe what he says. That defense has worked for Carlson in the past: he’s been found not liable in those defamation cases. Now that he is on record saying that his viewers do believe him, he may not be able to use that defense going forward.
“The First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.”
Fox could argue that ‘Trump won’ is an article of its religious faith, sincerely held. It could even come up with a Trumpian Creed, along the lines of The Apostles’ Creed, and have its lawyers recite it in unison in the court house. Something like ‘I believe in Trump and his victory…Rising again on January 6th… and he sitteth now with Washington, Lincoln, and the rest of the saints… From whence he shall come to rule again and again, unless the Last Judgement lands him in the slammer.’
https://www.whitehouse.gov/about-the-white-house/our-government/the-constitution/#:~:text=The%20First%20Amendment%20provides%20that,for%20a%20redress%20of%20grievances.
Fox’s reputation is “threatened”? I don’t think the lawsuit threatens Fox’s reputation so much as solidifies it.
For those interested, Ken White (Popehat) and Josh Barry have a podcast called Serious Trouble. They have covered the Fox/Dominion (with passing reference to Smartmatic) lawsuits several times as various bit of news have broken. Most recently on 22 Feb, and as a private feed on 1 March. It’s interesting listening if you’re into that sort of thing. Ken gives a reasonably nuanced view as to what is likely a problem for Fox and what the potential strengths in their defence might be. He seems to think it’s currently possible that Fox may eventually be found guilty of some defamation, but this isn’t a sure thing. He also feels that Dominion have not yet demonstrated any losses, let alone over US$1B in losses. Obviously still a developing situation.
I know our own ScreechyMonkey has also talked about elements of defamation previously. maybe if he has the time and inclination he’ll weigh in here.
Thanks, Rob. I haven’t followed these suits very closely, so I don’t really have much to add, other than to reiterate that one should never pay too much attention to the amount of money demanded in a lawsuit. I’ve read too many media reports that breathlessly exclaim about someone seeking ONE BILLION DOLLARS (be sure to read that in a Dr. Evil voice) as if that must mean something. (Hell, I think I once saw a pro se litigant demand a quadrillion dollars.)
To be clear, it SHOULD mean something. Good lawyers don’t just slap any old random number on the complaint, because in discovery you’ll be asked to substantiate it, and it’s not good to have something so ridiculous that it totally blows your client’s credibility. And in theory I suppose someone could be sanctioned for allegations of damages that are utterly frivolous, but I can’t recall hearing of an instance where that was the sole basis.
So generally speaking, the amount of damages alleged in a complaint is the biggest number you wouldn’t be utterly embarrassed to be asking for. But let’s just say that some plaintiffs and their lawyers have a higher threshold for embarrassment than others. Anyone reporting on legal filings should take those numbers with several truckloads of salt.
Anyway, the plaintiffs in these Fox suits probably have some substantial damages, because it seems likely that they have lost contracts with elections agencies, for reasons having directly to do with the conspiracy-mongering promoted by Fox News. Whether they add up to the numbers claimed is another matter.
I listen to the free version of Serious Trouble and recommend it to anyone curious about these kinds of issues.
Screechy, another thing I notice is that many awards of these large amounts are breathlessly reported (in Dr. Evil voice) and people go around talking (usually in disgust) how some one got this godawful amount for such a small, stupid thing. In reality, a lot of those never pay out anywhere close to that, if anything at all. A good for instance is the Exxon-Valdez spill, where these huge sums in damages were awarded, but appeal after appeal reduced it down from $5 billion to where they paid (and take this with a grain of salt; there are several different reports) a settlement of something like $900 million. Which seems like tons of money to us, but to Exxon-Mobil, it is not so much.
And as an environmental scientist, I have seen several cases where businesses shifted large sums of money right before they were sued, then filed bankruptcy, didn’t pay anything, and moved on.