The Volokh Conspiracy
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Smartmatic's Libel Lawsuit Against Fox News Can Go Forward
From today's decision by the New York intermediate appellate court in Smartmatic USA Corp. v. Fox Corp.:
The causes of action for defamation were based on significant allegations that defendant Giuliani (and defendant Powell, against whom the action has been dismissed) made defamatory statements about plaintiffs' involvement in the 2020 Presidential election while knowing that the statements were false, or at least with reckless disregard for the truth.
Those causes of action also allege that defendants Fox News, Dobbs, and Bartiromo did not merely report the newsworthy fact that the President's campaign lawyers were recklessly making statements conveying false information. Rather, the complaint alleges in detailed fashion that in their coverage and commentary, Fox News, Dobbs, and Bartiromo effectively endorsed and participated in the statements with reckless disregard for, or serious doubts about, whether the assertions or implications that plaintiffs had participated in election fraud had any basis in truth or were supported by any reliable evidence.
In fact, according to the allegations in the complaint, Fox News, Dobbs, and Bartiromo stated that Smartmatic's election technology and software were widely used in the 2020 election and in Dominion machines to switch votes, when they actually knew, or easily could have known had they not purposefully avoided publicly available knowledge, that in 2020, the Smartmatic technology was used only in Los Angeles County and that the vote switching claims otherwise had no support. Based on the same reasoning, the claims against Pirro, which are based on similar allegations of defamatory statements made with actual malice, must be reinstated.
However, Supreme Court [that's the name for the New York trial court -EV] erred in dismissing the third and fifth causes of action as against defendant Giuliani, and we reinstate those claims. As pleaded, those causes of action allege defamatory statements forming the basis for defamation per se claims and do not sound in product disparagement or otherwise require the pleading of special damages.
The court did conclude that the cases against Fox Corporation—as opposed to Fox News—should have been dismissed (though with leave to replead if plaintiffs can allege that some "Fox Corporation employee played an affirmative role in the publication of the challenged defamatory statements" or "that Fox Corporation wholly dominated Fox News so as to [be] liable for the acts of its subsidiary").
And the court "decline[d] to find that plaintiffs should be deemed limited purpose public figures required to allege facts that, if true, would 'clearly and convincingly' show defamation with actual malice."
Congratulations to Edward C. Wipper and Joel Erik Connoly (Benesch, Friedlander, Coplan & Aronoff, LLP), who represent Smartmatic.
UPDATE: Fox News passes along this statement:
There is nothing more newsworthy than covering the president of the United States and his lawyers making allegations of voter fraud. We are confident we will prevail as 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.