Fox News allowed to pursue claims that voting firm’s defamation suit is anti-free speech

NEW YORK (AP) — A judge refused this week to toss out Fox News’ claims that voting technology company Smartmatic is suing the network to suppress free speech. The ruling means that both Smartmatic’s multibillion-dollar defamation lawsuit and the network’s counterclaims can continue toward an eventual trial.

Smartmatic says Fox News spread ruinous lies that the voting company helped rig the 2020 election against then-U.S. President Donald Trump. The network denies the allegations and is countersuing under a New York law against launching baseless litigation to squelch reporting or criticism on public issues — known as “strategic lawsuits against public participation,” or SLAPP, in legal parlance.

Smartmatic’s nearly 3-year-old suit is separate from, but similar to, the Dominion Voting Systems case that Fox settled for $787 million last year. Fox didn’t apologize but acknowledged that the court in that case had found “certain claims about Dominion to be false.”

Both sides in the Smartmatic case have tried unsuccessfully to get the other’s claims tossed out. Trial and appellate courts already gave Smartmatic the green light to continue. On Wednesday, trial Judge David B. Cohen said Fox News’ counterclaims also could go ahead.

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Fox’s argument — essentially, that Smartmatic’s $2.7 billion claim is so inflated that it could only be meant to silence the network — “has not yet been adjudicated in any court,” Cohen wrote in his decision, filed Tuesday.

The Associated Press sent email messages seeking comment to the network and to Smartmatic’s attorneys.

Florida-based Smartmatic says that in the 2020 presidential election, its technology and software were used only in California’s Los Angeles County. The Democratic bastion — not seen as an election battleground — went for the Democratic nominee, current President Joe Biden.

But in Fox News appearances after Election Day 2020, Trump lawyers Rudy Giuliani and Sidney Powell portrayed Smartmatic as part of a broad scheme to steal the vote from the Republican incumbent. Giuliani asserted that the company had been “formed in order to fix elections.” Powell called it a “huge criminal conspiracy,” and the two claimed that proof would be forthcoming.

Federal and state election officials, exhaustive reviews in battleground states and Trump’s own attorney general found no widespread fraud that could have changed the outcome of the 2020 election. Nor did they uncover any credible evidence that the vote was tainted. Trump’s allegations of fraud also were roundly rejected by dozens of courts, including by judges whom he had appointed.

A Delaware judge presiding over the Dominion lawsuit ruled last March that it was “CRYSTAL clear” that none of the allegations that Trump allies made on Fox News about that company were true. The case was going to trial when Fox settled.

The Dominion case involved some of the same broadcasts and statements as the Smartmatic suit, and Smartmatic argued that the Delaware ruling should blow Fox’s counterclaims out of the water. Cohen said otherwise, citing — among other things — particulars of legal doctrine about when decisions in one case apply to another.

“Not all elements of plaintiff’s defamation claims have been already been determined” against Fox, he wrote.

Smartmatic blames Fox for ruining its reputation and business. Its value declined to “a fraction of what it was,” and support lines, customer-service inboxes and company officers were deluged with threats after the broadcasts, the voting company has said in court papers.

Fox News has said it was simply covering influential figures — the president and his lawyers — making undeniably newsworthy allegations of election fraud. The network also maintains that Smartmatic is greatly overstating its losses and Fox’s responsibility for them.

In its counterclaims, Fox is seeking attorneys’ fees and costs.