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Judge denies Fox News motion to dismiss defamation suit by election-tech company Smartmatic

But the ruling dropped host Jeanine Pirro as a defendant in the $2.7 billion lawsuit over conspiracy theory allegations about the 2020 election

Fox News headquarters in New York. (Jeenah Moon/Bloomberg News)
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A judge allowed an election technology company’s $2.7 billion defamation lawsuit against Fox News to proceed on Tuesday, though he dismissed specific claims made against host Jeanine Pirro and two of the network’s guests.

New York Supreme Court Judge David B. Cohen denied Fox’s motion to dismiss the 2021 lawsuit, in which the company, Smartmatic, alleged that the network and several of its on-air personalities “decimated its future business prospects” by falsely accusing it of rigging the 2020 election against Donald Trump.

But in the same ruling, Cohen dropped Pirro from the lawsuit, noting that while she floated election conspiracy theories, she did not specifically accuse Smartmatic of wrongdoing. He also dropped Trump-affiliated lawyer Sidney Powell from the suit, saying his court has no jurisdiction over her as a Texas resident.

And he dismissed some of Smartmatic’s claims against Rudolph W. Giuliani while allowing others to continue, noting that the Trump lawyer explicitly alleged that Smartmatic committed crimes — comments, Cohen wrote, that “if false, were defamatory per se.”

At a rally on Oct. 9, 2021, in Des Moines, former president Donald Trump continued to unleash a litany of false and unproven claims of voter fraud in 2020. (Video: Adriana Usero/The Washington Post)

Fox Business Network host Maria Bartiromo and former business host Lou Dobbs will both remain defendants in the lawsuit, which alleges that dozens of false statements about Smartmatic were made on Fox programs.

“While we are gratified that Judge Cohen dismissed Smartmatic’s claims against Jeanine Pirro at this early stage, we still plan to appeal the ruling immediately,” Fox News Media said in a statement, calling the lawsuit “baseless” and a “full-blown assault on the First Amendment which stands in stark contrast to the highest tradition of American journalism.”

Smartmatic sued Fox News Media, its parent company and several personalities in February last year, claiming it aired dozens of false statements that fed a conspiracy theory alleging the company’s election software helped Democrats steal votes. Fox News quickly filed a motion to dismiss, arguing that it had merely been reporting on newsworthy events.

In his ruling, Cohen wrote that Smartmatic has a legitimate basis to argue that “Fox News had reason to suspect that what it was broadcasting was false” when the network aired unfounded claims made by Powell and Giuliani because they could not provide evidence for their claims.

“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.

Of unfounded claims made by Giuliani, Bartiromo and Dobbs about Smartmatic, Cohen wrote that “a jury could determine that these claims were fabricated or, at the very least, that there were reasons to doubt the sources of this information.”

Cohen also wrote that “there is a substantial basis for plaintiffs’ claim that Fox News actually had information undermining any claim that the election was rigged and willfully disregarded the same” because the network had asked Smartmatic for the company’s response to a Nov. 12, 2020, statement made by a government election oversight body that the 2020 contest was “the most secure in American history.”

Despite the network’s contention that it did not make election fraud allegations directly, Cohen wrote that “since Fox News allowed allegedly defamatory statements about [Smartmatic] to be repeated on its network, a jury may therefore find that it acted with intent or reckless disregard of the truth.”

The next step in the case, a preliminary conference, will be held on May 18.

A similar lawsuit filed against Fox by election technology company Dominion Voting Systems was allowed to proceed by a Delaware judge in December.