NEW YORK, NY – MARCH 13: Traffic on Sixth Avenue passes by advertisements featuring Fox News personalities on the front of the News Corporation building, March 13, 2019 in New York City (Photo by Drew Angerer/Getty Images)
In a pair of competing and stinging court filings, Fox News and voting machine company Smartmatic Corp aimed to convince a judge that each side had the upper hand in a long-running defamation battle.
On Wednesday, in memorandums of law in support of respective motions for summary judgment filed in New York Supreme Court, both defendant and plaintiff savaged the other in no uncertain terms.
In the Fox News filing, attorneys argued the voting machine company was using the legal process to shore up its flagging business.
“[T]his lawsuit was manufactured to chill speech and generate headlines by a failing election company that was in financial free fall and saw allegations made by the President’s lawyers as a pathway to profitability,” the filing reads.
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In service of this effort, Fox News directly contrasted Smartmatic with Dominion — the other big name voting machine company embroiled in false and unsupported conspiracy theories about the 2020 election.
“Smartmatic’s strategy in this case has been to draft behind the rulings in the Dominion lawsuit,” the Fox News filing goes on. “But years of discovery have confirmed one thing above all else: Smartmatic is not Dominion.”
In April 2023, Fox News agreed to pay Dominion some $787.5 million in order to settle a defamation lawsuit. In that lawsuit, Dominion claimed Fox News knowingly smeared them with false claims — turning the “flame” of election fraud lies into a “forest fire.”
Yet, for the network, the two similarly-themed defamation lawsuits are something not entirely unlike wholly dissimilar. That’s because of who the plaintiffs are, according to Fox News.
“Unlike Dominion, Smartmatic was a failing business without a significant presence in the United States entering the 2020 Presidential Election,” the Fox News filing continues. “Unlike Dominion, Smartmatic was mired in a decade of business failure due to inadequate technology, missing certifications, and involvement in multiple highly controversial elections. Unlike Dominion, Smartmatic was founded by Venezuelans and was embroiled in claims of fraud in Venezuelan and Filipino elections well before any controversy arose over the 2020 Presidential Election.”
In the Smartmatic memo, the company sticks to its guns and reiterated, in strong language, the heart of its lawsuit: that Fox News aired false claims and “election conspiracy theories” about its voting machines during post-2020 election coverage.
“Fox deliberately deceived its audience with utter contempt,” the company’s filing begins.
The locus of this contempt, Smartmatic argues, was not just airing the alleged conspiracy theories — but airing such unsupported claims while allegedly knowing they were false.
“Fox News systematically promoted the inflammatory and false narrative that Smartmatic — smeared as a dirty Venezuelan company — had deployed software throughout the United States to steal votes from President Trump,” the Smartmatic filing continues. “The Murdochs and their executives believed this was a story that President Trump’s supporters wanted to hear, so that is what Fox News told them even though no one believed it to be true.”
The Smartmatic filing describes Fox News’ actions as an intentional smear campaign waged to maintain the loyalty of a pro-Trump audience.
From the filing, at length:
Fox’s decision to embrace, endorse, and amplify baseless election fraud claims became known as the “pivot.” Before the pivot, the Murdochs directed Fox News towards neutral ground regarding the 2020 election, which included allowing the Decision Desk to be the first to call Arizona for Joe Biden. But that call resulted in an unprecedented backlash against Fox News from President Trump, his supporters, and its previously loyal audience. Facing that backlash, the Murdochs and Fox News’ CEO decided to “pivot” and lean into election fraud claims they personally believed were baseless. After the “pivot,” dissenters within Fox who wanted to tell the audience the truth were punished, employees associated with the Arizona call were fired, and advocates for election fraud claims were promoted and highlighted. After the pivot, for one month, Fox pushed the narrative that Smartmatic (a company that only operated in Los Angeles County) had participated in a criminal conspiracy to rig the 2020 election.
Filed in 2021, the underlying lawsuit — and Wednesday’s filing — allege that top brass at the network were able to reap a financial windfall while Smartmatic suffered the opposite fate.
“Fox News’ ‘pivot’ was designed to boost ratings, which it did,” the Smartmatic filing goes on. “Good for Fox. It devastated Smartmatic. After decades of successful elections worldwide, Smartmatic believed its groundbreaking work with Los Angeles County would serve as a springboard for future success in the United States and globally. That did not happen.”
Instead, the voting machine company says, its employees received “chilling” threats against their lives while Smartmatic itself found its business prospects and reputation “destroyed,” according to the filing.
“Over 100 employees have lost their jobs,” the Smartmatic filing claims. “Billions in value have forever been lost. None of this had to happen. And none of it would have happened if those in charge of Fox cared about Fox News telling the truth or the consequences of falsely accusing a company of committing one of the biggest crimes in history.”
Fox News, for its part, argues Smartmatic’s reputational issues are problems of its own making.
“Election-integrity controversies have followed Smartmatic around the world, including in Venezuela and the Philippines, and in the U.S. where Smartmatic had to beat an ignominious retreat in 2006 following a federal national-security investigation,” the Fox News filing claims. “Smartmatic was then boxed out of meaningful U.S. business opportunities because it lacked the necessary product certifications and technologies to compete. In 2020, it had just one U.S. client. Internationally, customers repeatedly rejected Smartmatic’s deficient products and services.”
Each of the filings contains multiple pages of redactions; those redactions are made in line with a preexisting confidentiality agreement in the case.
Fox News, in its filing, offered an overview of its defenses. The network claims that Smartmatic has no valid damages, that there is no basis for punitive damages, that no defamatory statements were aired with actual malice, that the company itself cannot be held liable for relevant publication decisions, and that they are entitled to summary judgment under New York’s anti-SLAPP — or strategic lawsuit against public participation — law, which can end a defamation lawsuit if a court determines said lawsuit is an effort to chill free speech.
In its own overview, Smartmatic claims Fox News did not merely exaggerate but fabricated claims about election rigging, that Fox News is liable for defamation per se, that Fox News is, in fact, liable for publishing election fraud lies, that those alleged lies were spread with actual malice, and that Fox News is not eligible for the “fair reporting” privilege — which can mitigate liability when a publisher relays a fair and accurate account of an official document or proceeding.
Both Fox News and Smartmatic also traded dueling statements in response to inquiries from Law&Crime.
“The evidence shows that Smartmatic’s business and reputation were badly suffering long before any claims by President Trump’s lawyers on Fox News and that Smartmatic grossly inflated its damage claims to generate headlines and chill free speech,” a Fox News spokesperson said in an email. “Now, in the aftermath of Smartmatic’s executives getting indicted for bribery charges, we are eager and ready to continue defending our press freedoms.”
Smartmatic’s lead attorney, Erik Connolly, offered the voting machine company’s strongly-worded take on the filings in an email.
“Fox is running the same playbook as other abusers, trying to sully the victim,” Connolly said. “Fox cannot justify its month-long smear campaign against Smartmatic. Everyone from the Murdochs to the show producers knew they were pushing baseless claims. So, Fox is piling new lies on top of its old ones to try to persuade shareholders that its financial exposure is less than the $780 million paid to Dominion. It is not. It is much more. Fox will be held accountable. Fox’s motion is a distraction, not a defense.”
