Why Smartmatic's case against Fox News is even stronger than Dominion's
There are reasons Smartmatic is seeking a tidy $2.7 billion.
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By Lisa Needham
Last month, Fox News agreed to pay an eye-popping $787.5 million sum to settle a defamation lawsuit with Dominion Voting Systems. This allowed the network to avoid a trial that would have further highlighted its role in pushing the story that Dominion had helped Biden steal the election, all the while knowing it was a flat-out lie.
But Fox isn’t off the hook yet. Another voting technology company Fox lied about, Smartmatic, sued the network as well, demanding $2.7 billion, and their lawyer says they won’t settle for less than the same sum as Dominion — and they want a full apology and retraction, which Dominion didn’t get.
Smartmatic may have an even stronger claim than Dominion did. Where Dominion machines were used in 24 states in the 2020 election, Smartmatic was used in exactly one jurisdiction — Los Angeles County — that year. Los Angeles County has voted blue since 1968 and is in a state that Democrats have won every presidential cycle since 1992. Any argument that Smartmatic could have somehow tipped the election to Biden is therefore even more outlandish than the claims against Dominion.
Trumpworld’s Smartmatic conspiracy theories were ludicrous. Fox amplified them anyway.
The defamation of Smartmatic started shortly after the 2020 election when Trump lawyer Sidney Powell claimed at a press conference that Smartmatic was “created in Venezuela at the direction of Hugo Chavez to make sure he never lost an election.”
Rudy Giuliani, also a Trump lawyer at the time, said the company had been founded “in order to fix elections.”
There’s a lot to unpack there. Hugo Chavez has been dead since 2013, but he apparently remains a right-wing fixation. Next, Smartmatic was founded by three Venezuelans but in America, not Venezuela, and there’s no evidence it was at the behest of Chavez. Third, while Smartmatic machines were indeed used in a constitutional referendum in 2004 in Venezuela, the company also sounded an alarm after a 2017 election there when it determined turnout had been inflated by over 1 million votes. And finally, even if literally every word of Powell’s statement was true, Smartmatic’s minuscule presence in an already-blue county and state couldn’t have changed the results of the 2020 election.
But Fox News didn’t care, and they repeatedly amplified Trumpworld’s lies about Smartmatic. Smartmatic’s complaint, filed in New York, has 21 pages of defamatory statements aired on Fox News programs hosted by Lou Dobbs, Jeanine Pirro, and Maria Bartiromo. All three hosts had both Powell and Guiliani on multiple times in the month following the election, and all three allowed Powell and Guiliani to make multiple false claims.
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For example, a few days after the election, Lou Dobbs had Giuliani on, who incoherently explained that Dominion was owned by Smartmatic, that Smartmatic was formed by Venezuelans close to Chavez, that Dominion machines run Smartmatic software, and that votes “actually go to Barcelona” to be counted. When Sidney Powell appeared on Jeanine Pirro’s show, she talked about “all kinds of different means of manipulating the Dominion and Smartmatic software, that of course we would not expect Dominion and Smartmatic to admit to.” When Maria Bartiromo had Giuliani on, she told Rudy about a source that said “the Smartmatic system has a back door that allows the votes to be mirrored and monitored, allowing an intervening party a real-time understanding of how many votes will be needed to gain an electoral advantage.”
The Smartmatic complaint details over a dozen more instances from these three hosts, and the lawsuit names them individually, along with Fox News. Both Guiliani and Powell were also named in the lawsuit. Dobbs was fired roughly 24 hours after the lawsuit hit, but the firing did not remove him from the lawsuit. Pirro got all claims against her dismissed, only to have them later reinstated by a higher court. Sidney Powell got out entirely as she didn’t have enough connection to New York, where the lawsuit was filed. Guiliani tried to get out, but failed. Then, in February of this year, a New York court of appeals denied Fox’s attempt to get the lawsuit dismissed.
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The court had already ordered Fox to start providing documents to Smartmatic. Those documents will become public later in the lawsuit, so people will be able to see if Dobbs, Pirro, and Bartiromo were as privately dismissive of Trump’s election fraud claims as Tucker Carlson was.
Smartmatic has also just subpoenaed the Trump 2020 campaign, demanding it provide all communications about Smartmatic or Dominion and about Sidney Powell and Rudy Guiliani’s appearances on Fox. However, the campaign doesn’t have to automatically respond to subpoenas. It will likely ask the judge to quash it, asking for a ruling that they don’t need to comply. The judge could agree to quash it or could narrow the scope, ruling that the campaign has to provide some, but not all, of the material. Or the court could rule that the campaign has to comply while allowing it to withhold material during any appeal.
If anything, the Dominion settlement helps Smartmatic’s cause
There’s a good deal of speculation as to what the Dominion settlement means for Smartmatic’s chances in this lawsuit. First, the Dominion settlement didn’t require Fox to admit any wrongdoing. All Fox did was issue a press release acknowledging that the judge had decided that 20 on-air statements about Dominion were false. So, there’s nothing there that would be considered a precedent — a ruling that the court must follow — that Smartmatic could use.
Additionally, Dominion’s lawsuit was filed in Delaware, while Smartmatic’s is in New York. Different states have different laws regarding defamation and those state courts have different ways of interpreting those laws. So, on the courtroom side of things, what happened in Dominion doesn’t apply to what will happen in the Smartmatic case.
That said, the Dominion settlement casts a long shadow here. The Dominion discovery process, where Fox News was required to give relevant documents to Dominion, turned up a treasure trove of evidence that the Fox hosts knew full well that Giuliani and Powell were spouting unhinged conspiracy theories (it also revealed text messages in which Tucker Carlson bashed Fox News execs, which reportedly played a role in his firing). Smartmatic has demanded everything produced in the Dominion case, which includes depositions and communications that were not made public in that lawsuit. The chance that Smartmatic turns up even more damning material is likely high, and that’s probably why Fox has dragged its feet in providing it.
In Dominion, Fox failed to turn over relevant documents, resulting in the network getting threatened with sanctions by the judge. Smartmatic has also had trouble getting material from Fox and asked the New York court to sanction Fox as well. After a hearing, the judge in the Smartmatic case expanded what Fox has to provide, including material about the Murdochs and depositions and exhibits from the Dominion lawsuit.
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Fox is digging in and saying that they are ready to go to trial, but a trial is pretty far away. First, all the relevant materials have to be exchanged, and as we saw in Dominion, Fox is going to make that a difficult, lengthy process. Next, litigation over the subpoena to the Trump campaign could extend the timeline considerably unless Smartmatic decides to forge ahead without that information. Even after discovery closes, both parties can bring a variety of pre-trial motions, which also chews up time.
But if what we saw with Dominion is any guide, this is not going to be a pleasant process for the network, and they may decide it’s best to pay Smartmatic to make sure no more of Fox’s dirty laundry gets aired in a courtroom.
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