Smartmatic Challenges Fox News’ First Amendment Defense in $1.2 Defamation Lawsuit

News conglomerate Fox News finds itself fighting against not one, but two multi-billion dollar defamation lawsuits over its post-2020 election reporting. The plaintiffs in these lawsuits are the companies that ran electronic voting machines used during the election. In their complaints, the plaintiffs accuse Fox News and its on-air hosts of engaging in a smear campaign against them which involved making numerous false statements accusing the companies of engaging in a criminal conspiracy to change votes and decide the outcome of the 2020 election in favor of now-President Joe Biden. Fox News has countered that all of its allegedly defamatory statements are protected under the First Amendment as statements about matters of public concern. One of the companies, Smartmatic, has responded, arguing that Fox News’ statements were calculated falsehoods and thus enjoy no First Amendment immunity.

According to Smartmatic, it was founded in 2000 “to bring secure technology to elections and build an election technology company that could ensure accuracy, transparency, and auditability.” Smartmatic claims that the 2020 election was intended to be the launching point for the company as it had been selected to run the electronic voting for Los Angeles County. Days after the election, Smartmatic alleges, Fox News embarked on a disinformation campaign against it. In the weeks following the 2020 election, Smartmatic claims that Fox News broadcast 12 shows, posted 9 videos and transcripts online, and posted 20 comments and videos on social media about Smartmatic. Many of these references to Smartmatic allegedly involve accusations that it rigged the election against then-President Trump.

Additionally, Smartmatic claims that Fox News repeatedly invited then-President Trump’s attorneys, Rudy Giuliani and Sidney Powell, onto its broadcasts where Guiliani and Powell allegedly stated that Smartmatic was founded to “fix elections” and “alter votes,” its technology is “extremely hackable,” it was “banned by the United States,” its technology was “corrupt” and “switched votes,” it has an “algorithm” used to “modify the votes,” and Smartmatic was part of “one huge criminal conspiracy” to manipulate the 2020 election. Smartmatic filed suit against Fox News, several of its on-air hosts, Guiliani, and Powell seeking $2.7 billion in damages, making it one of the largest defamation complaints ever filed.

Fox News has hired former United States Solicitor General Paul Clement to represent it. In its motion to dismiss, Fox News argued that the lawsuit should be thrown out as its statements are completely protected from liability under the First Amendment. Following the election, then-President Trump and his allies filed numerous lawsuits around the country seeking to challenge the results of the election. Among other things, those lawsuits alleged that voting-technology companies, including Smartmatic, were involved in vote manipulation. Trump and his surrogates repeated many of these claims as well. These facts, Fox News argued, made discussion about these accusations and statements undoubtedly newsworthy. News media outlets have an obligation to report on newsworthy topics and even more importantly enjoy First Amendment protection in doing so, Fox argued in its motion. Absent the freedom to report on matters of public concern, Fox News warned that debate would be stifled and the public would lose access to critical information about important events. Fox News also argued that its reporting was protected from liability by the fair reporting privilege.

Smartmatic filed an opposition to Fox News’ motion to dismiss in which it claimed that Fox News’ statements are not entitled to any First Amendment protection. In its more than 120-page brief, Smartmatic argued that Fox News did not engage in mere reporting on matters of public concern but instead solicited and published calculated falsehoods about Smartmatic. Smartmatic argued that Fox News anchors were not innocent bystanders but instead “decided to join forces with Giuliani and Powell to disseminate disinformation about Smartmatic… [and] added their own defamatory comments about Smartmatic for good measure.” Telling calculated lies falls outside the protection of the First Amendment and outside the bounds of the fair reporting privilege, Smartmatic argued.

The case has garnered much media attention of late. Lubin Austermuehle’s own Peter Lubin has been interviewed and was quoted in this article discussing the case. In acknowledging Fox News’ First Amendment defense, Lubin was quoted explaining that “It is a very powerful First Amendment defense, but it is very fact-driven. The question is how far over the line were their own news anchors going in making news.”

Our top-rated by Super Lawyers Naperville, Oak Brook, and Wheaton defamation attorneys defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. You can view here a federal court decision where we prevailed in a libel per se claim asserting the innocent construction defense. Here is an arbitration decision where we successfully defended our client by presenting evidence that our client’s 20+ YouTube videos containing negative opinions about a used car dealer were substantially true and were protected opinion under the First Amendment. We recently required a defendant who publicized an allegedly false lawsuit regarding our client to provide an apology and full retraction as part of a confidential financial settlement following our filing of a $16 million suit for libel per se in federal district court.

Our Chicago defamation attorneys near Deerfield also represent and prosecute claims on behalf of businesses throughout the Chicago area including in Lisle and Downers Grove who have been unfairly and falsely criticized by consumers and competitors in defamatory publications in the online and offline media. We have successfully represented businesses who have been the victim of competitors setting up false rating websites in order to publish defamatory content about our business clients. Beyond slander and libel law, our Chicago business, commercial, class-action, and consumer litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. We serve clients throughout Illinois and the Chicagoland area. You can contact us online here or call us on our toll-free number at 833-306-4933 or locally at 630-333-0333.

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