Government

Fox News Offers A 'We're Left-Wing Journalist Cucks' Defense In Smartmatic Suit

Sometimes getting out of a suit requires throwing the business model under the bus.

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It’s not even been a week since Smartmatic sued Sidney Powell, Rudy Giuliani, Fox, and several Fox anchors for $2.7 billion alleging that the combined defendants engaged in a scheme where the lawyers made knowingly false claims while the news organization enabled the defamation by bringing them on and choreographing questions to lend credence to the damaging lies. And yet Fox has already fired off their motion to dismiss (which you can read here). Seems like someone really wants to get this behind them quickly!

Right after canceling Lou Dobbs — supposedly the highest-rated show on Fox Business — a Kirkland & Ellis team headed by Paul Clement put in a responsive motion from Fox Corporation and Fox News asking to get out of the suit weeks before the deadline. For the cynical out there, the timing feels more than a little like a prelude to settlement talks, offering the carrot of a sidelined Dobbs with the stick of a colorable motion to dismiss from a high-powered attorney.

But if you aren’t convinced that Fox is worried about this lawsuit, consider that the network, beset by en masse defections from viewers heading to OAN and Newsmax because they feel Fox is “too liberal,” crafted their motion around the idea that they questioned Powell and Giuliani repeatedly and never really believed them anyway. In other words, Fox’s defense is that they’re exactly as squishy as their former viewers claim.

• On November 14, Pirro told Powell on Justice with Judge Jeanine: Smartmatic and Dominion have “denied that they have done anything improper[.] … [W]hat evidence do you have to prove this?” (NYSCEF.Doc.No.5, Pls.Ex.3.at.2-3.)
• On November 14, Eric Shawn, another Fox host, explained on America’s News HQ: “[E]lection officials and the government say that [the fraud] is just not true” and that the allegations are “baseless.” (Fox.Ex.14.at.1.)
• On November 15, Bartiromo asked Powell on Sunday Morning Futures with Maria Bartiromo: “Sidney, you feel that you will be able to prove this[?] … How will you prove this, Sidney? You believe you can prove this in court?” (NYSCEF.Doc.No.7, Pls.Ex.5.at.16-17, 22.)

See! They were just reporting the fact that Powell and Giuliani made allegations. Not only didn’t the network take a stand, it openly cast doubt on the accusations. The motion has a whole appendix collecting coverage like this.

And, more or less, Fox is right about that. It’s not defamatory to point out that someone has filed a lawsuit or talk to the lawyers about the allegations. Making pains to keep the record clear that these are unproven allegations further proves that the outlet is merely covering the story. Even pointed commentary isn’t defamatory. It’s opinion to say, “hopefully the Department of Justice” would consider the case — as Pirro did. Unlike OAN, who took Mike Lindell’s money and then indicated that they had reason to believe he was about to lie in what amounted to an extended advert, Fox presented everything in the form of news coverage. A lot of Smartmatic’s allegations hinge on the theory that Fox’s mere decision to foreground this coverage amounts to joining a defamation scheme. While media critics might have a lot to say about using a progressively decaying legal story as a tent pole for primetime coverage is a de facto adoption of false claims, that’s an uphill legal claim.

Unfortunately for Fox, the collected tidbits of responsible journalism they’ve collected don’t exactly tell the whole story. Or perhaps, more to the point, unfortunately for Lou Dobbs and by extension Fox.

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Mr. Dobbs then took the initiative and contributed additional falsehoods to the narrative by telling people that Smartmatic and Dominion sent votes out of the country so the voting is not auditable. He had no evidence of this assertion, and Secretaries of State had stated the opposite, but that was another aspect of the false narrative that Defendants ultimately wanted to spread. Mr. Dobbs stated: “And, by the way, the states, as you well know now, they have no ability to audit meaningfully the votes that are cast because the servers are somewhere else and are considered proprietary and they won’t touch them. It won’t permit them being touched.”

That’s from the original complaint and that’s Dobbs going a lot further than hearing Rudy’s side of the story as he volunteers claims about Smartmatic that the company says are false. Or when Dobbs volunteered, “Dominion has connections to U.K based Smartmatic, a voting technology company established in 2000 that had ties to Venezuela’s Hugo Chávez” which is a whole bundle of BS. Or:

Mr. Dobbs: This is the worst in our country’s history. There is no election in our presidential history, our nation’s history in which there were so many anomalies, so many irregularities and so much clear evidence of fraud.

It’s not too hard to read through these filings back to back and imagine an attorney telling the client that one named defendant has a much worse case than the others. There’s a reason Smartmatic doesn’t name Tucker Carlson in this suit and for all the clear MAGA thirst Pirro and Bartiromo exhibited in running wall-to-wall coverage of allegations that had been debunked repeatedly, they avoided the kind of language that lands Dobbs all over this complaint.

Clement also banks on Smartmatic needing to show actual malice. Putting aside whether pegging the company as a conspirator working for a dead dictator exhibits actual malice, can Fox claim Smartmatic is a public figure solely because Fox coverage turned Smartmatic into a public figure? It’s a company that only provided voting machines to Los Angeles this election and somehow got roped into an ever-morphing conspiracy about shifting ballots in multiple battleground states.

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This isn’t a totally novel question. In the Richard Jewell cases — back before Lin Wood got mixed up in the same shenanigans we’re talking about here — folks may remember that the media successfully convinced the judge that Jewell had transformed into a voluntary limited purpose public figure by inserting himself into the Olympic bomber story as a hero first, but might forget that they also tried to argue that he was an involuntary public figure. That was, rightly, a hefty standard to overcome. You can’t blame Clement for trying but for a company that was routinely mistakenly conflated with Dominion in comments littering the complaint, it’s hard to say they’re the sort of unmistakable household name that the actual malice standard is designed to protect.

But in any event, Fox wants the court to know that they didn’t defame anybody because they never had the courage to “fight like hell” as Trump might say or engage in “trial by combat” for the president as Rudy might say. They’re just the standard liberal journalists sipping coffee in their local Starbucks refusing to believe anything Sidney or Rudy were saying. Just like OAN and Newsmax suggest.

And if Smartmatic doesn’t buy that, well, they’ve already canceled Lou Dobbs and isn’t that and a modest, undisclosed settlement enough? Asking for a Biglaw attorney team….

(Full brief on the next page.)

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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