Fox News hosts claim First Amendment protects them from Smartmatic lawsuit

Editor’s Note: A previous version of this story mistakenly listed “Dominion,” when in fact the lawsuit is from “Smartmatic.” The headline has been updated to reflect this correction. 

Several Fox News personalities targeted by a massive libel lawsuit filed against them and their network by the voting tech firm Smartmatic struck back on Friday, asking a court to dismiss the case on First Amendment grounds.

Smartmatic filed a $2.7 billion suit against Maria Bartiromo, Lou Dobbs, and Jeanine Pirro, as well as lawyers Sidney Powell and Rudy Giuliani earlier this month accusing them of conspiring to spread “disinformation” that the electronic balloting company was involved in a plot to rig the election against former President Donald Trump.


In a motion filed by the legal firm of Kirkland & Ellis, whose lawyers are also defending their network, the three hosts argued they were merely doing what they’re paid to do, which is to cover and analyze what they view as important issues and news of the day — in this case, accusations of voting fraud and questions about election integrity allegedly linked to Dominion’s machines, according to The Associated Press.

In a 285-page complaint lodged Feb. 4 in a New York State court, Smartmatic referenced more than a dozen reports featured on Fox News where the hosts or their guests claimed that the firm may have played a role in helping to steal the election in favor of President Joe Biden through manipulated technology or in alliance with the government of Venezuela.

Alleging a “disinformation campaign” was waged against Smartmatic, the company contended that the false claims were repeated despite the fact that then-Attorney General Bill Barr said publicly the Justice Department had not uncovered any evidence of vote-rigging or fraud. 

“Smartmatic is confident in its case and looks forward to briefing these issues for the Court,” J. Erik Connolly, an attorney for the company, said in a Friday statement.

“The lawsuit is being closely watched as the rise of far-right voices on social media and pro-Trump outlets like Newsmax and One America News challenge long-held assumptions about the limits of free speech,” the Associated Press reported.

The three hosts noted in their filing occasions where they questioned guests who were making claims of election manipulation to supply evidence of their allegations in addition to airing Smartmatic’s denials. Also, the filing argued that Dobbs, in making statements supporting his guests’ claims about the voting systems, offered protected opinions under the Constitution and not factual statements.

“The First Amendment protects the press when it informs the public about judicial proceedings regardless of the accuracy of the underlying allegations,” said the filing on behalf of Dobbs, whose weeknight program was recently canceled by the network.

All of the hosts also brought on a guest who directly refuted some of the claims that Smartmatic’s software was manipulated along with the technology of another company, Dominion Voting Systems, the filing said.

That guest, Eddie Perez, the Global Director of Technology Development & Open Standards for the Open Source Election Technology Institute, told Dobbs during a mid-December program, “I have not seen any evidence that Smartmatic’s software was used to delete, change, alter anything related to vote tabulation.”

“Both Dominion and Smartmatic have individually and respectively put out very clear statements from their corporate headquarters, each of them indicating they are independent companies, they are not related to each other,” Perez went on to say. 

“It is my understanding that neither one of them has an ownership stake in the other or anything like that. They are, again, for all intents and purposes, two completely separate companies.”

For her part, Bartiromo argued through her attorney that Smartmatic filed a “headline-seeking” suit and seeks to replenish its bank accounts after losing $17 million in 2019.

“This complaint is not just meritless; it is a legal shakedown designed to chill speech and punish reporting on issues that cut to the heart of our democracy,” lawyers argued.

In an interview with the AP, Syracuse University media law professor Roy Gutterman said he believes Fox News and its hosts are making cogent arguments regarding their First Amendment rights as well as their responsibility to stoke the public with engaging political topics.

“Whether the broadcaster is liable for providing a forum for speakers and what responsibility they have for dealing with false factual statements will be central to the court’s decision,” he said, adding that even if the court dismisses Smartmatic’s case, Giuliani and Powell are still at risk for being held liable for their claims.

The AP went on to note that the founder and CEO of Smartmatic is Venezuelan, and his company profited early on with big contracts from the government of dictator Hugo Chavez, as Giuliani and Powell have claimed.

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Jon Dougherty

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