Smartmatic disputes Fox News' reporting privileges in defamation case

MANHATTAN (CN) — Voting technology company Smartmatic asked a New York state judge Wednesday to deny Fox News certain reporting privileges the news company claims are intended to protect journalists under the First Amendment.

Smartmatic, which launched a $2.7 billion defamation lawsuit against Fox in 2021, said that these protections are not only inapplicable in this case but have not even been historically recognized by New York law.

“Fox’s position is fantasy,” Smartmatic said in its motion.

The Florida-based voting technology company accused the right-wing news organization of stoking far-right conspiracy theories about Smartmatic after the 2020 election. Smartmatic claims Fox News elicited onetime New York City mayor Rudy Giuliani and Trump campaign attorney Sidney Powell to share the defamatory statements on its platform.

Smartmatic said Wednesday the news organization intended to create “actual malice” by making space for the pundits to spread conspiracy theories as a way of defaming the voting technology company.

“Under any construction, they showed that the Fox host incurred, encouraged, bolstered these claims,” Nicole Wrigley, an attorney with Benesch Friedlander representing Smartmatic, said during the hearing.

Wrigley claimed that Fox’s claims fail under the fair reporting privilege, which protects the publication of reports on judicial and legislative proceedings, because the network repeatedly fails to illustrate how its reporting on Smartmatic was derived from any specific hearing.

“This is far beyond reporting on any procedure, any proceeding,” Wrigley said.

But Fox says Smartmatic’s motion is “vague,” and fails to illustrate the falsity of every statement the news organization makes in its reporting.

Fox attorney Erin Murphy added that a news outlet is permitted to report accusations, whether or not they believe them to be true.

“A reasonable viewer would have understood that we are merely reporting the allegations,” Murphy said, adding that it’s unlikely Smartmatic would argue that every news organization that reported the claims engaged in defamation.

New York Supreme Justice David Cohen did not indicate when he would rule on the motion.

But Cohen did deny one of Smartmatic’s motions to vacate an order from Judicial Hearing Officer Alan C. Martin denying the voting technology company’s bid to compel Kevin Lord, a Human Resources executive at Fox, to take part in a final fact deposition.

Smartmatic claimed that Lord had probative information regarding Smartmatic’s claims against Fox News, and that his testimony was necessary to shed light on conflicting facts on the record regarding the news organization’s potential malicious intentions in its reporting on Smartmatic.

But Cohen ruled from the bench that there’s not enough evidence to suggest Lord would have any substantial testimony that has not already been discussed in previous depositions with other Fox employees.

The judge also denied on Wednesday two discovery-related motions from Fox News, including claims that Smartmatic smuggled damages associated with its Folio subsidiary.

Smartmatic previously withdrew its damages claims with respect to its subsidiary. According to Fox, the voting technology company refused to provide discovery related to Folio as a result despite references to its subsidiaries being made in already provided documents.

“Many of the damages it was seeking related to Folio, involved the use of its Folio technology,” Fox attorney Brad Masters said. “But Smartmatic previously refused to produce documents related to Folio.”

But Smartmatic said references to Folio have always been in certain documents, and those references were not snuck back in after waiving its claim to damages related to the subsidiary.

Cohen also denied another motion from Fox requesting documents from LinkedIn co-founder Reid Hoffman regarding funding he provided on behalf of Smartmatic’s defamation case against the news organization.

Fox claims that Hoffman provided $25 million to support the lawsuit. When Fox requested communications between the LinkedIn co-founder and Smartmatic, the voting technology company claimed it had no such communications.

In a statement, Smartmatic says Wednesday’s hearing brings the company “one step closer” to holding Fox News accountable for its defamation claims.

“As this case progresses, it should be becoming more and more apparent to Fox leadership and their shareholders that the company’s day of reckoning is imminent,” Smartmatic attorney Erik Connolly said.

Meanwhile, Fox News called Smartmatic’s claims for damages “highly implausible” and said they’re ready to defend the case when it gets to trial.

“Smartmatic’s damages claims against Fox News are highly implausible, disconnected from reality and on their face intended to chill First Amendment Freedoms,” a Fox spokesperson said. “Their alliance with a high-profile Democratic donor and longtime Biden supporter to fund their lawsuit is entirely predictable.”

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