By Jonah E. Bromwich
In the months since the election tech company Smartmatic sued Fox News and three of its anchors, the two companies have engaged in a prehearing back-and-forth that continued Monday when Fox filed briefs in support of a previous motion to have the lawsuit dismissed.
In its defamation suit, which was filed in New York State Supreme Court on Feb. 4, Smartmatic accused Fox and the anchors Lou Dobbs, Maria Bartiromo and Jeanine Pirro of promoting falsehoods about the company and widespread fraud in the 2020 presidential election.
Shortly after the suit was filed, Fox canceled Mr. Dobbs’s program on Fox Business and filed a motion for a dismissal of the suit, arguing that the claims of electoral fraud broadcast on Fox News and Fox Business were newsworthy and handled fairly. Smartmatic replied on April 12, with a brief stating that the three Fox anchors had played along as their guests promoted election-related conspiracy theories.
In its latest volley, Fox asserted that its coverage of Smartmatic was part of its overall reporting on a challenge of the election outcome based on claims made by former President Donald J. Trump.
“Smartmatic asks this court to become the first in history to hold the press liable for reporting allegations made by a sitting president and his lawyers, and to break that barrier in the context of one of the most newsworthy events imaginable: a contested presidential election,” Fox said in its filing on Monday. “This court should decline that First-Amendment-defying request.”
Representatives for Smartmatic declined to comment.
Smartmatic has argued that the Fox hosts knew the on-air statements about the company were not accurate. If a court determines that Smartmatic is a public figure, Smartmatic’s lawyers will have to show that Fox acted with “actual malice” in its treatment of the company.
The Fox briefs filed on Monday argued that Smartmatic, which is seeking $2.7 billion in damages, had not demonstrated that its channels or its anchors acted with malice, showing only that the three Fox hosts had not investigated the claims made on their programs.
The Fox brief said that Smartmatic’s “allegations largely boil down to accusations of mere ‘failure to investigate.’”
It added, “Seeking to compensate for the weakness of its allegations, Smartmatic emphasizes their volume. But a stack of inadequate allegations is still inadequate.”
The briefs filed by Fox on Monday are likely to be the last in its case against Smartmatic before a court considers the matter. A hearing date has not been scheduled. Another election technology company, Dominion Voting Systems, sued Fox for defamation in March.
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