Defamation lawsuit against Trump-affiliated Fox News commentators will proceed

The Appellate Division has ruled that a defamation lawsuit filed by Smartmatic voting machines against Fox News and various Trump-affiliated defendants may proceed to discovery. This case arises from the defendants' public comments about Smartmatic and their claims that this company's software caused former President Trump to lose the 2020 election.

The case is Smartmatic USA v. Fox Corp., issued by the First Department on February 14. State Supreme Court summarized the allegations as follows:

In November and December 2020, Fox News broadcasted 13 reports in which it stated or implied that SUSA (Smartmatic) stole the election, and repeated the stories in articles and social media postings. Fox News, its employees and/or guests claimed, among other things, that: SUSA was a Venezuelan company under the control of corrupt dictators from socialist and communist countries; its election technology was used in six “swing” or “battleground” states with close outcomes (Nevada, Arizona, Georgia, Pennsylvania, Michigan and Wisconsin); SUSA’s software was designed to “rig” elections, and did so by switching votes from President Trump, the Republican candidate, to Joseph Biden, the Democratic candidate, who won the election and is now President; SUSA’s software was used in voting machines manufactured by Dominion Voting Systems Corporation (“Dominion”); SUSA sent votes to foreign countries for tabulation and manipulation (Doc. 1 at par. SUSA’s software was hacked; and that SUSA had been banned from participating in prior elections in the United States.

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Additionally, plaintiffs alleged that defendants Fox News and its employees, Maria Bartiromo, Lou Dobbs, and Jeanine Pirro, used the story to preserve Fox News’ viewership and that the Fox anchor defendants used it to earn money. Plaintiffs further alleged that attorneys Rudolph Giuliani and Sidney Powell also profited by promoting this false narrative, which has since become known as “The Big Lie”, both on Fox News and elsewhere.

Supreme Court allowed the case to proceed against some defendants (Fox News, Dobbs, Bartiromo, and Giuliani) but not others (certain claims against Guiliani [the former Mayor of New York City and the former United States Attorney] and claims against Pirro, a former Westchester County District Attorney and judge). The Appellate Division reinstated the claims that were dismissed. "[A]ccording 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." 

The claim against Fox news is dismissed on appeal but plaintiffs have the option to replead, "as the complaint does not adequately allege that any Fox Corporation employee played an affirmative role in the publication of the challenged defamatory statements. Nor does the complaint adequately allege that Fox Corporation wholly dominated Fox News so as to liable for the acts of its subsidiary."