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.

Comments

[bernard11]

Good.

So do we now wait another year for the NY Supreme Court (yes, I know it's not called that) to rule on yet another appeal?

"The law's delay," indeed.

[CJColucci]

The decision is not appealable to the Court of Appeals as a matter of right. (CPLR 5601). It does not appear to be a likely candidate for an appeal by permission. (CPLR 5602).

[bernard11]

Thank you.

Any idea how long it might take to get to trial?

[CJColucci]

A couple of years, minimum.

[Kenneth Almquist]

So the case started out in Supreme Court, then went to the Supreme Court Appellate Division, where an opinion signed by a clerk, not a judge, overruled the Supreme Court in part and sent the case back to the Supreme Court. Like so many things on the internet, it's hard to tell whether this is serious or just trolling.

[Mr. Bumble]

Maybe the courts need to supply score cards.

[Zarniwoop]

Every law student gets the "New York courts have weird names, their 'Supreme Court' is the New York TRIAL court" lesson by somewhere around their second week of law school. It's just the way it is.

[Longtobefree]

unnumbered reason to get out of NY

[Rev. Arthur L. Kirkland]

New York isn't for everyone.

Poorly educated racists, superstitious gay-bashers, on-the-spectrum misogynists, white Christian nationalists, faux libertarian clingers, disaffected Federalist Society members, and other core elements of the Republican-conservative electoral coalition might be happier awaiting their replacement in places such as West Virginia, west Texas, Mississippi, Idaho, Kentucky, Wyoming, Oklahoma, Arkansas and other poorly educated, bigot-friendly, dying locations.

[Ed Grinberg]

One doesn't have to be "poorly educated" to be a bigot. Look at you!

[OtisAH]

And like so many things on the internet it is readily apparent when someone has no idea about what they’re bitching about.

[CJColucci]

What is hard to figure out? Once you get the local naming conventions right, there's nothing odd about it at all: the case started in the trial court, went to the first-level appellate court, the opinion, being a short per curiam, was signed by the clerk, as is common in other state and federal systems, and the case was remanded to the trial court to proceed with the case consistent with the appellate court's decision.

[ReaderY]

A standard part of the playbook. Characterize a standard action completely routime to anybody who knows how these actions work as so bizarre that there must be hanky-panky afoot. It seems to work very well for a large segment of donors who desperately want someone to confirm their belief that there must be hanky-panky. Doesn’t fly so well with judges or intellectuals. But that never was the audience this play was directed at, was it?

[Dave_A]

States are entitled to call their courts whatever they wish.
NY is odd about that.

[John F. Carr]

Quoting the order: "The meticulously detailed complaint satisfied the requirements of CPLR 3211(g)(1)."

One man's "meticulously detailed complaint" is another man's verbal diarrhea failing to meet the procedural requirement of a "short and plain statement".

[OtisAH]

“There is nothing more newsworthy than covering the president of the United States and his lawyers making allegations of voter fraud.”

But there is. It’s the story of a major news organization that knowingly participated in spreading lies about the 2020 presidential election, which contributed to if not directly abetted or instigated the attempt to overthrow the U.S. government by the US president, his cronies, and his fanatical supporters.

Also: LOL!

“…a flagrant attempt to deter our journalists from doing their jobs.”

The journalists: Rudy Giuliani, Lou Dobbs, and Maria Bartiromo

[Dave_A]

How is something ‘newsworthy’ when it is objectively false?

Smartmatic’s products were not used in any of the states where Trump’s people/supporters claimed vote fraud.

That’s an indisputable – and publicly available – fact, which a reasonable amount of due-diligence could have uncovered. It does no harm to the freedom-of-the-press, to require journalists to at least attempt to confirm basic facts about their stories (Hey, before we accuse this company of vote fraud on national news, let’s see if any of the places we are talking about actually use their products) before publishing.

This should be a very short trial, and an easy win for Smartmatic.

[Rev. Arthur L. Kirkland]

It has been illuminating to watch fans of Donald Trump, Tucker Carlson, Marjorie Taylor Greene, Gateway Pundit, Donald Trump Jr., Steve Bannon, Newsmax, Alex Jones, One America, Herschel Walker, Melania Trump, Rudy Giuliani, Sidney Powell, Jenna Ellis, Jared Kushner, Kari Lake, Wilbur Ross, Sarah Huckabee Sanders, J. Brett Blanton, and Madison Cawthorn furiously demanding that laws be changed to hold political liars to account for falsehoods.

Some people are just too stupid to . . . do much of anything worthwhile.

[Mike Hansberry]

What do you mean by "loosened?"

Had Fox News simply qualified every statement with "sources say" or "we wonder if," there would not be a case. Alternatively, some other judge might rule that since Smartmantic willingly got into the arena they are public figures. Still another judge might rule that since smartmantic's program is proprietary, whatever was said must have been merely an opinion, because the commentor could not possibly know for a fact either way. How much looser would you like the laws against defamation to be?

[CJColucci]

Had Fox News simply qualified every statement with “sources say” or “we wonder if,” there would not be a case.

A lot of people think that. It isn't true.

[Dave_A]

‘Sources say’ doesn’t absolve them of the responsibility to at least try to confirm plausibility.

The fact that their software is closed-source/proprietary is also irrelevant.

We are talking about a case where NONE of Smartmatic’s products were in use in ANY of the relevant states, and thus it is flatly impossible for them to have engaged in any vote-rigging conspiracy.

All Fox (et all) had to do to avoid being sued, was do *basic* research into what sort of voting equipment was in use in the claimed states…. And they would have easily seen that the story was false, as it applies to Smartmatic, because again *none* of the relevant states had even one locality that used Smartmatic products.

They should face liability for failing to do so.

[Dave_A]

As for 'what do you mean by loosened'?

Donald Trump has repeatedly claimed that NY v Sullivan should be overruled, such that he would be able to sue the press for defamation over criticism he personally believes is false.

[ReaderY]

It’s completely consistent. By liars, they mean their political enemies.

[John F. Carr]

But sources say it is true!

[Mike Hansberry]

That is comforting to those of us who think defamation should be punished, but it sure seems that an awful lot goes unpunished.

[Mike Hansberry]

I also think that Sullivan went too far in loosening the prohibition against defamation. Of course, it should not matter what Trump "personally believes" is true. What should matter is the truth, not whether one is a public figure or not.

Fox ran with fake vote fixing by way of certain computer programs and the left-wing press ran with fake Russia collusion. Both should be held liable for defamation.

Those who want to make it easier to avoid responsibility for defaming others seem not to care for the harm to society, let alone the harm to the individual who was defamed.

[Mike Hansberry]

"They should face liability for failing to do so."

Agreed.

But it would hardly be the first time someone has used the "just my opinion" defense and won. Though Maddow's claims were clearly stated s factual, the court nonetheless allowed the "opinion" defense as no reasonable person would supposedly accept her claim as fact.

https://deadline.com/2021/08/rachel-maddow-msnbc-beat-oan-lawsuit-appeal-robert-herring-1234816713/

Note also that Syndey Powell attempted the same defense in similar case defamation brought by Dominion.

https://www.sos.ga.gov/news/kraken-cracks-under-pressure-sidney-powell-claims-no-reasonable-person-would-conclude-her

Laws against defamation should not be loosened, they ought to be tightened to stop the liars from avoiding responsibility.