• by Karlene Lukovitz , February 9, 2021

On Monday night, Fox Corporation and Fox News lawyers filed a motion to dismiss the $2.7-billion defamation lawsuit filed against the companies by election technology company Smartmatic.

Smartmatic accuses Fox of having damaged its business by spreading false claims that Smartmatic participated in a conspiracy to rig the 2020 national election against Donald J. Trump.

The Fox motion, filed in New York Supreme Court, contends that Fox News fairly reported on matters of significant interest to the public.

“Put simply, Fox argues that when the President of the United States and his surrogates publicly allege that an election was rigged, stolen, or otherwise improperly (or at least questionably) conducted, the press has a constitutional right to be able to disseminate and dissect those comments in the public sphere,” sums up Law&Crime (which has the motion to dismiss document embedded in its coverage).

“’Fox News has moved to dismiss the Smartmatic lawsuit because it is meritless,” Fox said in a statement. “If the First Amendment means anything, it means that Fox cannot be held liable for fairly reporting and commenting on competing allegations in a hotly contested and actively litigated election. We are proud of our election coverage which stands in the highest tradition of American journalism.”

Fox is also arguing that Smartmatic is at least a limited-purpose public figure, and has not demonstrated actual malice on Fox’s part.

Under legal precedent, a person or entity defined as a public figure must prove actual malice, as opposed to just negligence, in the defendant’s reporting in order to recover damages in defamation suit.

New York State’s new anti-SLAPP law also includes an actual malice standard that makes it easier for defendants to dismiss defamation claims.

The Smartmatic suit also names as defendants Fox News hosts Lou Dobbs, Maria Bartiromo and Jeanine Pirro, as well as the Trump attorneys who went on Fox and other outlets to spread the false election fraud accusations, Rudy Giuliani and Sidney Powell.

According to Law&Crime, the hosts will respond separately to Smartmatic’s suit, likely using similar arguments — and will be represented by Kirkland & Ellis, the same law firm being used by Fox.