A Judge Finds a ‘Substantial Basis’ for the Claim That Fox News Recklessly Promoted Trump’s Election Fantasy
Smartmatic USA (SUSA), a Florida-based voting technology company, had a very limited role in the 2020 general election: a single contract with Los Angeles County. But Smartmatic loomed much larger in the imaginations of Trump campaign lawyers Sidney Powell and Rudy Giuliani, who repeatedly claimed the company had supplied fraud-facilitating software to Dominion Voting Systems as part of an elaborate conspiracy to steal millions of votes for Joe Biden.
Fox News played a conspicuous role in promoting that tall tale, which is why SUSA sued the cable channel for defamation in February 2021, seeking $2.7 billion in damages. Fox argued that it was protected by freedom of the press because it was merely covering the president’s allegations of election fraud. But this week, a New York judge ruled that Smartmatic can proceed with its claims against Fox News, former Fox host Lou Dobbs, and current host Maria Bartiromo.
In his 61-page decision, New York County Supreme Court Judge David B. Cohen also rejected Giuliani’s motion to dismiss Smartmatic’s claims against him. Cohen granted Powell’s motion, accepting her argument that SUSA had not established a New York nexus sufficient to justify suing her there. He also dismissed the claims against Fox host Jeanine Pirro, finding that just one of her allegedly defamatory statements pertained specifically to Smartmatic and that she described it as a claim made by Donald Trump’s lawyers.
SUSA’s complaint made a strong case that Dobbs and Bartiromo had not merely conducted softball interviews with Powell and Giuliani but had repeatedly lent credence to their wild claims, often presenting them as fact. They continued to do so even though the allegations were plainly at odds with reality, even though their own colleagues at Fox (including news reporters and commentator Tucker Carlson) had noted the lack of evidence to support Trump’s conspiracy theory, and even though government officials and cybersecurity experts had dismissed the idea that compromised vote-tabulating machines could have swung the election to Biden.
As Cohen notes, Dobbs claimed on the air that “SUSA and Dominion sent votes out of the country to be counted so that the results would not be auditable”; that “Dominion worked with SUSA, a voting technology company with ties to former Venezuelan dictator Hugo Chavez”; that “what President Trump’s legal team was discovering about Dominion and SUSA gave rise to ‘probable cause for a complete and thorough investigation'”; that “SUSA ‘electronically chang[ed] votes in the 2013 presidential election in Venezuela'”; and that “SUSA had ‘documented issues with [its] voting machine software.'”
Dobbs reinforced these allegations on Twitter, where he “accused Dominion and SUSA of ‘Democrat electoral fraud,'” reported that “Powell said she had ‘firsthand evidence’ that SUSA’s software was designed to change votes without detection,” and “said that Powell had revealed ‘groundbreaking new evidence indicating that [the election] came under massive cyber-attack orchestrated with the help of Dominion, [SUSA], and foreign adversaries.'”
Bartiromo, meanwhile, “said that, according to a ‘source,’ SUSA’s software had a ‘back door’ used to determine how many votes needed to be switched to rig an election,” asserted that “SUSA’s software changed votes from President Trump to President Biden,” “showed a graphic of swing states in which SUSA software was allegedly used, despite having no evidence to support her statement,” and “showed a graphic on the screen indicating that Dominion machines were used in the ‘swing’ or ‘battleground’ states of Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin.” She “simultaneously said that SUSA’s software was used in those jurisdictions as well, despite the fact that it was only used in Los Angeles County, California.”
If these statements are false, Cohen notes, they “are defamatory per se insofar as they concern plaintiffs’ ‘trade, business or profession’ and suggest that they committed a serious crime.” Under New York law, which provides extra protec
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