Smartmatic’s defamation lawsuit against Fox News for its coverage of Donald Trump’s “Big Lie” may proceed to discovery after a New York judge denied Fox News’s motion to dismiss, citing the “litany of outrageous claims” about Smartmatic that Fox News propagated.

This ruling, although noteworthy, should not be of concern to most media outlets. Instead, this case is unique in that the allegedly defamatory statements in question were repeated with great frequency despite being demonstrably false. Even so, the ruling is likely significant for Fox News. Because Smartmatic’s claims have survived Fox News’s motion to dismiss, the lawsuit may proceed to discovery, which is likely to be costly and burdensome. Here we take a closer look at what happened in this case.

Background

Smartmatic is an election technology and software company that provided services to Los Angeles County, California in connection with the 2020 presidential election. Following the 2020 presidential election, Fox News and its employees and guests made a number of false statements in which they claimed that Smartmatic and its software “stole” the election from Donald Trump. For example, Fox News employees and guests claimed on air that Smartmatic machines had been used by several swing states in the 2020 election; that Smartmatic had been founded “for the specific purpose of fixing elections”; that Smartmatic had previously fixed numerous elections in Venezuela and Argentina; and that Smartmatic software had “dumped” votes for Trump and “flipped” those votes to Joe Biden.¹

Smartmatic sued Fox News and some of its employees and guests for defamation, alleging that Fox News had no factual basis for the statements it made about Smartmatic, and that those statements were made with actual malice because Fox News knew or should have known that they were false.

In defamation lawsuits involving public figures or, in jurisdictions like New York, statements made in a public forum, plaintiffs must demonstrate that the allegedly defamatory statement was made with actual malice. To determine whether a statement was made with actual malice, courts consider factors such as the following:

• Whether the statement is fabricated or based on unverified sources

• Whether the statement is “so inherently implausible” that circulation of that statement would be reckless

• Whether there are obvious reasons to doubt the truthfulness of the source or the accuracy of that source’s information

Fox News moved to dismiss the defamation claims, arguing that it was merely reporting about Trump’s “newsworthy” attempts to challenge the results of the election.

The Court’s Decision

The court denied Fox News’s motion to dismiss, ruling that Smartmatic sufficiently pleaded actual malice by alleging that Fox News either (a) knew that its claims that Smartmatic had stolen the election were false or (b) acted with reckless disregard for the truth in making those statements.

The court relied on the sheer volume and absurdity of the claims that Fox News broadcast about Smartmatic in finding that Fox News knew or should have known that the statements made by its employees and guests were false. Those statements, the court explained, were “so inherently improbable” that even if Fox News did not knowingly broadcast the false statements, there was a basis to find that Fox News “turned a blind eye” to the falsity of the statements and therefore showed a reckless disregard for the truth.

Fox News was not able to insulate itself from the defamation claims by claiming that the network itself made no specific defamatory statement about Smartmatic. Similarly, the fact that Fox News’ employees “occasionally mentioned” that Smartmatic “denied their misrepresentations” does not protect Fox News from liability. By broadcasting the statements in question on its network, Fox News may be liable for defamation.

Nor could Fox News defend against the defamation claims with the neutral reporting privilege. In some states, the “neutral reporting privilege” protects persons who republish defamatory statements, so long as the statements were made about a public figure and were reported accurately and without bias. It is not clear whether New York recognizes this privilege, and the court did not apply it to the allegations in this case. Based on the court’s analysis, it probably would not have applied the neutral reporting privilege to Fox News’s alleged conduct even if that privilege were recognized under New York law.

[1] Decision and Order on Motion, Smartmatic USA Corp. v. Fox Corp., No. 151136/2021 (Sup. Ct. New York Co. Mar. 8, 2022).