"The Earth is round. Two plus two equals four. Joe Biden and Kamala Harris won the 2020 election for President and Vice President of the United States" Smartmatic v. Fox

Smartmatic, a maker of election technology is suing For News for knowingly broadcasting lies about their company for financial gain.  

Fake news is not new. In a post about Misleading Headlines I wrote about serious problems rife in the US from 1898 when there was a circulation feud between the Hearst's and the Pulitzers.  

But Fox News goes well beyond headlines.  The  whole story is often totally made up.  The First Amendment has been interpreted to give a lot of leeway for legitimate news media to make honest, even sloppy  mistakes.  

However, as you read the allegations in this case (and based on everyone's personal experience either with Fox News directly or on the ever-present clips on different social media) it's clear that Fox has often pushed the protections of the First Amendment to the point that they are actually causing harm to people and companies and endangering democracy, by labeling fiction as non-fiction.

Distinguishing Free Speech from Slander and Libel

So how do we balance free speech and slander and libel?  There have always been laws against slander and libel.  Smartmatic is claiming that Fox and its on air spokespersons not only made patently false claims, but they knew that they were doing it, and in doing it they did Smartmatic irreparable harm, for Fox's financial gain and to help reelect Trump.  

Findlaw outlines the key elements of libel (written) and slander (spoken).

To prove either type of a defamation lawsuit, plaintiffs must prove the following elements:

• The defendant made a false and defamatory statement concerning the plaintiff;
• The defendant made the defamatory statement to a third party knowing it was false (or they should have known it was false); and
• The publisher acted at least negligently in publishing the communication.

It's clear Smartmatic's lawyers know these basic principles of the law and there charges go well beyond claiming damage to Smartmatic and intended gain for Fox.  I'd note I had some personal education on this topic when an attorney sent me an email threatening to sue me if I didn't take down a post the speculated about whether his client was a scam.  Fortunately I had access to a great Alaskan First Amendment attorney who wrote a letter in response.  

Here's a link to the suit Smarmatic filed.  And excerpts below are taken from the documents filed today.

 

 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

--------------------------------------

SMARTMATIC USA CORP., SMARTMATIC INTERNATIONAL HOLDING B.V., and SGO CORPORATION LIMITED,

Plaintiffs, -against-

FOX CORPORATION, FOX NEWS NETWORK LLC, LOU DOBBS, MARIA BARTIROMO, JEANINE PIRRO, RUDOLPH GIULIANI, and SIDNEY POWELL,

Defendants.

The basic narrative of the case is that Fox knowingly made up facts defaming their company for Fox to gain a bigger audience and it did great damage to the company. 

INTRODUCTION1

1. The Earth is round. Two plus two equals four. Joe Biden and Kamala Harris won the 2020 election for President and Vice President of the United States. The election was not stolen, rigged, or fixed. These are facts. They are demonstrable and irrefutable. [emphasis added]

2. Defendants have always known these facts. They knew Joe Biden and Kamala Harris won the 2020 U.S. election. They knew the election was not stolen. They knew the election was not rigged or fixed. They knew these truths just as they knew the Earth is round and two plus two equals four.

3. Defendants did not want Joe Biden and Kamala Harris to win the election. They wanted President Donald Trump and Vice President Michael Pence to win re-election. Defendants were disappointed. But they also saw an opportunity to capitalize on President Trump’s popularity by inventing a story. Defendants decided to tell people that the election was stolen from President Trump and Vice President Pence.

The Table of Contents gives you the general narrative of their case.  I'll give you just a taste of what's there.  Again, the link his here.

 

FACTUAL ALLEGATIONS ....................................................................................................... 12

1. Smartmatic’s Role as an Election Technology Company ..................................................... 13

   1. Smartmatic grew from a small start-up into a successful multi-billion-dollar
      enterprise. ....................................................................................................................... 14

   2. Smartmatic’s success was built on its reputation for secure, reliable, and auditable election technology and software. .................................................................................. 18

   3. Smartmatic had a relatively small, non-controversial role in the 2020 U.S. election. ... 19

      1. Los Angeles County introduced a new Voting Solutions for All People initiative for the 2020 U.S. election................................................................................................ 19

      2. Los Angeles County selected Smartmatic to contribute election technology and software to the Voting Solutions for All People initiative. ....................................... 22

      3. Smartmatic’s involvement with Los Angeles County was a success. ....................... 23

   4. Smartmatic quietly celebrated its success in Los Angeles without knowing what was coming from Defendants. ............................................................................................... 25

2. Defendants’ Disinformation Campaign Against Smartmatic ................................................ 27

   1. Mr. Giuliani and Ms. Powell created a story about Smartmatic. ................................... 30

   2. Fox Defendants joined the conspiracy to defame and disparage Smartmatic and its election technology and software. .................................................................................. 32

   3. Defendants engaged in a widespread disinformation campaign against Smartmatic and its election technology and software. ............................................................................. 34

   4. Defendants used multiple platforms to spread disinformation....................................... 57

   5. Defendants presented their statements about Smartmatic as facts, not opinions ........... 67

3. Defendants’FalseStatementsandImplicationsAboutSmartmatic......................................78

   A.  Defendants falsely stated and implied that Smartmatic’s election technology and software were widely used in the 2020 U.S. election..................................................... 79

   B.  Defendants falsely stated and implied that Dominion used Smartmatic’s election technology and software during the 2020 U.S. election................................................. 84

   C.  Defendants falsely stated and implied that Smartmatic fixed, rigged, and stole the 2020 U.S. election for Joe Biden and Kamala Harris.............................................................. 92

   D.  Defendants falsely stated and implied that Smartmatic sent votes to foreign countries for tabulation during the 2020 U.S. election. ............................................................... 102

   E.  Defendants falsely stated and implied that Smartmatic’s election technology and software were compromised or hacked during the 2020 U.S. election. ....................... 106

   F.  Defendants falsely stated and implied that Smartmatic was previously banned from providing election technology and software in the United States. ............................... 112

   G.  Defendants falsely stated and implied that Smartmatic is a Venezuelan company founded and funded by corrupt dictators from socialist and communist countries...... 115

   H.  Defendants falsely stated and implied that Smartmatic’s election technology and software were designed to fix, rig, and steal elections. ................................................ 122

IV. Defendants Acted with Actual Malice and Ill Will Towards Smartmatic........................... 132
    A.    Defendants had no support for their statements and implications regarding
Smartmatic. ................................................................................................................... 133
Defendants did not have sources to prove something that did not happen.............. 134
Fox Defendants eventually admitted they had no basis for their statements and implications about Smartmatic. ............................................................................... 135
Fox News knew its anchors and guests lacked a basis for their statements and implications about Smartmatic. ............................................................................... 143
Defendants purposefully avoided learning the truth about Smartmatic and its election technology and software. ......................................................................................... 147
B.  Defendants had access to information showing their statements and implications about Smartmatic and its technology and software were factually inaccurate....................... 148
Defendants knew Smartmatic’s election technology and software were not widely used in the 2020 U.S. election (and were not used in contested states). ................. 149
Defendants knew Smartmatic’s election technology and software were not used to fix, rig, or steal the 2020 U.S. election. ................................................................... 160

That's enough to get you started.  The Roberts court has given a lot of deference to the First Amendment, but it seems this case is going to help the draw some lines.  And if the Plaintiffs are successful, there will be a new weapon against fake news.   This could be an important step in the fight against fake news.