Nearly five years into their legal battle, Smartmatic and Fox News on Tuesday both asked a New York judge to rule in their favor in a $2.7 billion defamation case that centers on false vote-rigging claims broadcast by Fox during the 2020 U.S. presidential election.
In a hearing at the New York State Supreme Court, Judge David B. Cohen heard arguments from both companies asking him to grant summary judgment, which would mean deciding in their favor on elements of the case. Judge Cohen is expected to issue a ruling in the coming weeks on whether the case will proceed to trial before a jury.
Smartmatic, a voting technology company, accused Fox of defaming the company in a February 2021 complaint that said the network’s hosts and executives had knowingly linked Smartmatic to conspiracy theories from Trump supporters about rampant fraud across the country to rig the election against him.
“They released toxic gas that killed Smartmatic,” Erik Connolly, a lawyer for Smartmatic, said in Tuesday’s hearing. “Instead of waste, it was disinformation that they let out into the environment.”
The case has echoes of a libel suit brought against Fox News by another election technology company, Dominion Voting Systems. In that case, Fox agreed to pay a record $787.5 million to settle just before the case went to trial in 2023. As in the Dominion litigation, thousands of pages of documents containing texts and correspondence within Fox have been filed in court as part of the Smartmatic lawsuit, in an attempt to reveal what Fox executives and hosts really thought about the claims of a stolen election in 2020 and their attempts to help Donald J. Trump.
Smartmatic has argued that top executives at Fox, including Rupert Murdoch and his son Lachlan, as well as its television hosts, were aware that there was no evidence of voter fraud in the election, but allowed statements to be made on air repeatedly that linked Smartmatic to vote-rigging. The voting technology company said its reputation was smeared and its business severely damaged.
Mr. Connolly told Judge Cohen that he should grant summary judgment on a number of the elements required to prove defamation, including the legal standard known as actual malice. That standard requires plaintiffs in cases involving public figures to prove that the defendants either knew the statements were false or recklessly disregarded whether they were true or not. The judge noted that it was “a rare situation” that actual malice would get decided on summary judgment.
Mr. Connolly asked that the issue of damages go to a jury.
Winn Allen, a lawyer for Fox, pushed back on Smartmatic’s claim that it was harmed by Fox and had lost significant future profits and opportunities. He said the company had failed to identify specific lost customers, a requirement for the damages claim.
Mr. Allen told the judge that Smartmatic’s motion contained “significant misrepresentations of fact and invite this court to commit a whole host of legal errors.”
Fox has said that it was merely reporting on newsworthy allegations and as such was covered by the First Amendment, and Mr. Allen said that Smartmatic had failed to show there was actual malice. He denied that Rupert and Lachlan Murdoch, who control the company, were directing Fox to cover the vote-rigging claims. “They can’t argue there’s some collective corporate state of mind,” he said.
Smartmatic and some of its executives face federal criminal charges of international bribery and money laundering. U.S. prosecutors have accused the defendants of funneling $1 million in bribes to an election official in the Philippines to obtain contracts.
A Smartmatic spokesman has said the company and executives deny the allegations. Fox argued this year that the defamation case should be paused until there is a resolution in the criminal case.
But in November, Judge Cohen rejected Fox’s request for a pause.
Katie Robertson covers the media industry for The Times. Email: [email protected]
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