New York State Supreme Court Judge David B.Cohen made the observation in an opinion published Tuesday for a lawsuit Smartmatic brought against Fox News, its hosts Jeanine Pirro and Maria Bartiromo, former host Lou Dobbs, and election conspiracy theorists Rudy Giuliani and Sidney Powell, which asked for $2.7 billion in damages.Cohen granted Pirro’s and Powell’s motions to dismiss the lawsuit against them but permitted a number of Smartmatic’s claims to continue against the network , Dobbs, Bartiromo, and Giuliani.
One of the issues at the heart of the case was whether Fox News acted with “actual malice” when Sidney Powell and Rudy Giuliani, who were acting as lawyers for then-President Donald Trump’s campaign in November 2020, made false claims about Smartmatic, and when Dobbs made similar claims on his Fox Business News show and on social media.
The “actual malice” standard, which is crucial for some defamation lawsuits , means that Smartmatic may need to prove that Fox News recklessly disregarded or purposefully avoided the truth in order for its case to succeed at trial.
In his opinion Tuesday , Cohen wrote that Tucker Carlson, another Fox News host, may have given Smartmatic some of the ammunition it needs.Unlike Pirro, Dobbs, and Bartiromo, Carlson asked Powell to substantiate her claims that Smartmatic rigged election results and denounced her when she didn’t turn up with the proof she promised.
“Ironically, the statements of Tucker Carlson, perhaps the most popular Fox News host, militate most strongly in favor of a possible finding that there is a substantial basis that Fox News acted with actual malice,” Cohen wrote.
Given the fact that Powell didn’t give Carlson the evidence that Smartmatic flipped votes, that the Trump Campaign told him the evidence didn’t exist, and that election security specialists and government experts publicly said that claims of election-rigging were nonsense, there’s enough evidence that Fox News avoided the truth to allow Smartmatic’s lawsuit to proceed, Cohen wrote.
“Powell never provided the evidence requested by Carlson, and President Trump’s campaign advised Carlson that it knew of no such evidence,” Cohen wrote.
“Therefore, there are sufficient allegations that Fox News knew, or should have known, that Powell’s claim was false, and purposefully ignored the efforts of its most prominent anchor to obtain substantiation of claims of wrongdoing by [Smartmatic].”
The fact that Dobbs said that Powell revealed to him “groundbreaking new evidence” that Smartmatic, the rival election technology company Dominion Voting Systems, and “foreign adversaries” had “orchestrated” an attack on election system made the comments only more damaging, Cohen wrote.
“It is incongruous that Dobbs emphasized evidence’ of fraud referred to by Powell while there is no indication that Carlson ever received any substantiation of her claims,” he wrote.
Smartmatic might not need to meet the ‘actual malice’ standard Smartmatic may not even need to prove that Fox News acted with “actual malice” in order to win its lawsuit, Cohen suggested in its rulings.
The standard typically applies only to public figures who accuse others of defamation, or “limited purpose public figures” who have some measure of public standing.
But Smartmatic’s technology was used in only one county in the 2020 election.In court filings, Smartmatic has argued that it could only be considered a “public figure” because of “the controversy created around it by the Fox defendants” — an argument that Cohen hasn’t yet ruled on.
“Even assuming that Fox News did not intentionally allow this false narrative to be broadcasted, there is a substantial basis for plaintiffs’ claim that, at a minimum, Fox News turned a blind eye to a litany of outrageous claims about plaintiffs, unprecedented in the history of American elections, so inherently improbable that it evinced a reckless disregard for the truth,” Cohen wrote in the ruling.
Fox News did not respond to Insider’s request for comment about the judge’s ruling.However, a spokesperson for the news channel said in a statement Tuesday that it plans to appeal Cohen’s decision allowing the lawsuit to proceed against the company.
Smartmatic, in November, filed a separate lawsuit against Powell in federal court in Washington, DC.Because Cohen dismissed the accusations against Powell on jurisdictional grounds, the election technology company is likely to continue its claims against her there.
Smartmatic’s lawsuit is one of numerous defamation cases triggered by conspiracy theories falsely alleging Trump won the 2020 election rather than now-President Joe Biden.Dominion Voting Systems has also filed a slew of defamation lawsuits against Fox News, Powell, Giuliani, and other right-wing media organizations and activists.
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