The Washington PostDemocracy Dies in Darkness

Opinion Fox News’ ‘big lie’ segments face judicial comeuppance

Sidney Powell, right, speaks next to former mayor of New York Rudolph W. Giuliani, during a news conference on Nov. 19, 2020, in Washington. (Jacquelyn Martin/AP)
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All those hoping for some in-your-face accountability to visit proponents of the “big lie” would have enjoyed the hearing on Tuesday in the virtual courtroom of New York State Supreme Court Judge David B. Cohen. At issue was a $2.7 billion lawsuit by voting-technology company Smartmatic against Fox News for rolling the company into various segments alleging a grand conspiracy to steal the 2020 election from former president Donald Trump. In a 270-page February filing — a length attributable to the volume of errant claims pushed by the defendants — Smartmatic alleges, “Defendants’ story was a lie,” reads the suit, which targets not only Fox News, but also three of its anchors and attorneys Rudolph W. Giuliani and Sidney Powell. “All of it. And they knew it. But, it was a story that sold.”

Tuesday’s hearing featured arguments over Fox News’s motion to dismiss the complaint. Paul Clement of Kirkland & Ellis LLP argued that the network was merely pursuing a “newsworthy” story and that the allegations leveled by team Trump remained so whether or not they were “plausible or likely to succeed.” Cohen jumped in to question whether the privilege to report such allegations was “absolute.” Clement acknowledged limitations on the news media’s latitude but argued that given stakes of the presidential election, “the protection is at its zenith.” As the Fox News defendants argued in their motion to dismiss: “When a sitting President and his surrogates claim an election was rigged, the public has a right to know what they are claiming, full stop.”

Presenting for Smartmatic, J. Erik Connolly of Benesch, Friedlander, Coplan & Aronoff LLP scoffed at the idea that any of the falsehoods pushed on Fox News by the defendants enjoyed legal harbor. “There is no privilege for what Fox News did here,” said Connolly, dismissing any “robust debate” on the network. “We have Fox News putting guests on their air and Fox anchors themselves stating things that there’s no evidentiary basis for whatsoever,” said Connolly, echoing arguments in a lawsuit filed by another firm, Dominion Voting Systems, against the network.

Cohen asked whether inviting Giuliani and Powell on Fox News to hear their side of the story doesn’t qualify as “fair reporting of the news.” Connolly replied that the arrangement didn’t even “come close” to meeting the prongs of that “fair report privilege,” which protects news organizations when they publish defamatory material in government proceedings. Giuliani and Powell, argued Connolly, were not government officials, and based on the public record, there’s “no way of drawing the conclusion that they were acting in some governmental capacity.”

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But hold on — isn’t the 2020 presidential election a matter of public concern? Yes, responded Connolly. “Is Smartmatic’s role in the election a matter of concern?” continued Smartmatic’s counsel. “Absolutely not. It became an issue of public concern based on a series of fabrications and lies,” said Connolly, who documented allegedly defamatory statements about Smartmatic on the programs of Maria Bartiromo, Jeanine Pirro and Lou Dobbs, all three of whom are defendants. (Dobbs no longer has a show on the network.)

Election technology company Smartmatic filed a $2.7 billion defamation lawsuit against Fox News on Feb. 4. (Video: Reuters, Photo: REUTERS/Carlo Allegri/Reuters)

Defamation cases in the United States commonly hinge on whether the plaintiff is a public figure — a legal term triggering a higher level of proof. But Connolly argued that Smartmatic doesn’t fall into this basket: “All we did is we provided election technology, that’s all we did,” said Connolly. “There is nothing in this record right now that demonstrates that we actively tried to influence this controversy, that we voluntarily injected ourselves into this controversy.”

Providing voting technology in a “hotly contested” election, argued Clement, qualifies Smartmatic as a limited-purpose public figure.

In the course of the hearing, Cohen pressed both sides with on-point questions informed by a close reading of the record. In one sequence, he questioned Fox News counsel about Dobbs’ claims Smartmatic had been “denied use” in Texas. “Where did that come from and how is that not defamatory? Did any evidence ever come to light that Smartmatic was banned in Texas or did Mr. Dobbs ever try to ascertain if there was any proof of such?”

Clement offered a meandering answer. The judge tried again: “Did anyone at Fox try to verify that there was any problem in Texas?” asked Cohen. Short on wiggle room, Clement did what any good lawyer does when your client is Fox News — scramble! “I don’t think that’s in the record one way or the other, your honor,” he responded.

In case Cohen didn’t make clear his interest in factual integrity, he hammered the point in an exchange with attorney Howard Kleinhendler, who represents Powell. The judge collated statements regarding Smartmatic by Powell and then placed them before Kleinhendler to see if he could cite evidence to back them up.

For instance, the judge asked if there was “any evidence” that Smartmatic held any contracts outside of L.A. County. “I’m not aware” of any, responded Kleinhendler. What about Smartmatic software allegedly being “embedded” in Dominion machines? Kleinhendler responded that “core processes” from Smartmatic reside in Dominion machines (Connolly said in a post-hearing press availability that Smartmatic software was “not used” in Dominion machines.)

And there were these two exchanges:

Cohen: Evidence to support the statement that Smartmatic rigged votes in the California election in 2016?
Kleinhendler: I don’t know, uh --
Cohen: Any support for your client’s contention that Smartmatic’s own manual explains how votes can be wiped away?
Kleinhendler: Your honor, that’s a, I believe --

The thread running through Cohen’s questioning is an incredulity that the network, in effect, had failed to fact-check the “big lie.” He noted that as late as Nov. 26, Dobbs was still “claiming that Dominion and Smartmatic had close ties to the government agency that found no irregularities in the 2020 voting. Does this ever stop?”

The judge also cited the reporting of Fox News host Tucker Carlson, who questioned Powell’s contentions in a November segment. Did that not alert the network to issues with this whole shebang? “These are the president of the United States’ lawyers, and if they’re making allegations that are subject to some doubt … the news media is not estopped from reporting those allegations,” responded Clement. Fox News has previously highlighted the Carlson segment as well as various others that counterprogrammed the segments cited in the Smartmatic and Dominion lawsuits. And after Smartmatic threatened legal action, the network ran a bizarre fact-checking segment with a voting expert, a move that Connolly called “too little, too late” in Tuesday’s hearing.

If nothing else, Tuesday’s hearing filleted the statement released by Fox News upon the filing of Smartmatic’s suit in February: “Fox News Media is committed to providing the full context of every story with in-depth reporting and clear opinion. We are proud of our 2020 election coverage and will vigorously defend against this meritless lawsuit in court.”

That vigorous defense is afoot, but not even Fox News’s first-rate legal team can erase the scurrilous transcripts.