Legal experts: “Damning evidence” in Dominion case threatens Fox as court greenlights second lawsuit

Fox News faces a second defamation lawsuit from another voting technology company over its coverage of TrumpWorld’s false claims about the 2020 election amid damning revelations in Dominion Voting Systems’ $1.6 billion lawsuit against the network.

Voting technology company Smartmatic sued Fox News and its anchors in February 2021 for falsely accusing the company of helping rig the 2020 presidential election to favor President Joe Biden over former President Donald Trump. Last week, the New York Supreme Court in Manhattan gave the green light for the case to proceed against Fox News, its anchors, and former Trump lawyer Rudy Giuliani.

Smartmatic is seeking $2.7 billion in damages, claiming Fox News, anchor Maria Bartiromo and ex-host Lou Dobbs knowingly lied about the company in an effort to boost ratings and keep Trump supporters from turning to other right-wing networks.

“The Earth is round. Two plus two equals four,” Smartmatic’s complaint says. “Joe Biden and Kamala Harris won the 2020 election for President and Vice President of the United States. The election was not stolen, rigged, or fixed. These are facts. They are demonstrable and irrefutable.”

The complaint argued that the news channel “knowingly and intentionally” broadcast a series of lies in support of Trump’s stolen election conspiracy theory. 

“Defendants did not want Joe Biden and Kamala Harris to win the election,” the filing said. “They wanted President Donald Trump and Vice President Michael Pence to win re-election. Defendants were disappointed. But they also saw an opportunity to capitalize on President Trump’s popularity by inventing a story.”

These “lies” led to people threatening Smartmatic Elections and its personnel, making the company incur significant costs to increase physical security for its offices and key employees, the filing added. 

Now, Smartmatic is taking action to hold Fox accountable for spreading more than 100 false statements and “for the damage that their lies have caused.” But unlike Delaware, where Dominion’s suit is proceeding, Smartmatic’s suit was filed in New York – where the company has a very high bar to meet if it is to win the defamation suit at trial, according to The Guardian

“Much of the most damning evidence surfaced in Dominion’s case is now in the public domain and will be both relevant and admissible against Fox News in Smartmatic’s case because it will help establish the reckless indifference to truth (or worse) on the part of the defendants and will help Smartmatic prove that Fox News had a business model that deliberately suppressed facts whose broadcast seemed likely to displease its audience, reduce its market share, and thus cut into the advertising revenues that keep its profits high,” longtime Harvard Constitutional scholar Laurence Tribe told Salon.

The evidence from Dominion’s case will also help with showing “actual malice,” added Catherine Ross, a constitutional law professor at George Washington University.

To establish “actual malice,” Smartmatic would have to prove that Fox either knew it was peddling a lie and reported it anyway, or show a reckless disregard for the truth.

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Fox has denied wrongdoing in both cases. The company accused Dominion of taking an “extreme” view of defamation law and infringing on the network’s First Amendment rights while “cherry-picking” quotes to publicly “smear” Fox in the media. The network likewise disputed Smartmatic’s claims and questioned the company’s estimate of its losses.

“Freedom of the press is foundational to our democracy and must be protected, in addition to the damages claims being outrageous, unsupported and not rooted in sound financial analysis, serving as nothing more than a flagrant attempt to deter our journalists from doing their jobs,” a Fox News spokesperson told The Guardian. “There is nothing more newsworthy than covering the president of the US and his lawyers making allegations.”

While the two cases are similar and both focus on highlighting Fox executives’ awareness that hosts were making false claims, Smartmatic also claims that its software for the election was only used in Los Angeles County.

Fox News employees and guests made claims that Smartmatic was a Venezuelan company under the control of corrupt dictators from socialist and communist countries and its election technology was used in six “swing” or “battleground” states with close outcomes including Nevada, Arizona, Georgia, Pennsylvania, Michigan and Wisconsin, according to the filing. 

But Smartmatic only provided services to Los Angeles County where Biden’s victory was never in doubt.

“It could make the defamation even worse or you could say, ‘well, it was only used [in] one place,” Ross said.

Either way, the case could play out in a number of different ways, Ross added. The jury could award multiple billions in punitive damages, which would be “a big enough award to get even Fox News’ attention.”

The reputational harm could also lead to some programs going off the air because advertisers may not want to be associated with Fox after the court has found enough evidence of “malicious lies”.

Dominion’s lawsuit has already led to significant revelations about Fox’s coverage of baseless election fraud claims pertaining to its voting machines. Now, Smartmatic has to prove that the right-wing network also “engaged in a conspiracy to spread disinformation about Smartmatic.”

“If Fox were a normal or, dare I say it, an actual news organization, they would have some top-to-bottom reassessments,” Ross said, “but if they were a normal news organization, they would be unlikely to be in this position.”

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