Fighting Voting Company’s Defamation Suit, Fox Hosts Insist They Did Their Jobs

MANHATTAN (CN) — Three Fox hosts entered court filings Friday that say they were just doing their jobs when they helped stoke the flames of the conspiracy theory that the 2020 presidential election was rigged. 

Following a similar motion earlier this week by Fox News, the hosts Lou Dobbs, Maria Bartiromo and Jeanine Pirro all invoked the First Amendment as a defense this morning against a massive $2.7 billion defamation lawsuit.

“This is what journalists do, and it is what the First Amendment protects,” according to the motion by Maria Bartiromo, who hosted Rudy Giuliani and Sidney Powell to discuss allegations the 2020 presidential election was rigged. Bartiromo claims she had extended an invitation to Smartmatic to comment on the allegations but that the invitation was ignored.

“The constitutional protection for the free press and related concepts like the fair-report and neutral-report doctrines exist precisely to shield commentary like Pirro’s from the threat of lawsuits seeking massive damages,” another of the motions claim. “Her legal commentary, fleeting as it was, centered on newsworthy events of the highest order.”

In his motion, Dobbs states that “the complaint comes nowhere close to alleging the type of intent required to pierce First Amendment protections and hold a commentator liable for reporting on newsworthy matters of the highest order.”

That motion continues by saying Dobbs should be lauded for allowing Giuliani and Powell to make their unfounded allegations. “If a wide-open, robust debate ultimately reveals that one side could back up their allegation, that is a sign that the First Amendment is working,” the motion states. “It should be a cause for celebration, not an excuse for an outsized lawsuit.”

In its 285-page complaint, voting technology company Smartmatic alleged that Fox and the three hosts maliciously allowed Giuliani and others to promote a bogus story that the voting company had helped switch votes for Donald Trump to Joe Biden, and that it had shadowy links to socialist dictators. 

Smartmatic, which was founded in 2003, says it has processed more than 5 billion secure votes in a number of elections, but that during the 2020 election it served only Los Angeles County. Biden carried that county, a Democratic stronghold, by nearly 2 million votes.

Dobbs noted in his motion that he has history covering Smartmatic, pointing to a 2006 segment on CNN wherein a reporter on Dobbs’ show noted the company “is a labyrinth of international holding companies owned by Venezuelan businessmen.”

The motion later claims that “it does not matter that Dobbs sometimes provided commentary or encouraging observations when interviewing Giuliani and Powell,” and that a “reasonable viewer would understand that colorful commentary is just commentary.”

The motions also claim Smartmatic’s lawsuit runs afoul of New York’s anti-SLAPP law, which is designed to protect journalists. The law, an acronym for strategic lawsuit against public participation, applies not only to bona fide journalists but also other individuals looking to speak on issues of public importance.

In addition to free-speech arguments, the motions call attention to the fact that Smartmatic reported a $17 million loss in 2019. They claim the voting technology company is trying to “fill its coffers at the expense of our constitutional traditions” by filing the defamation suit. 

“Smartmatic’s headline-seeking, multi-billion-dollar lawsuit thus should be seen — and rejected — for what it is: an unconstitutional attempt by a money-losing company,” wrote attorney Steven Mintz of Mintz & Gold. Mintz is joined by Paul Clement of Kirkland & Ellis, who currently represents Fox in the defamation suit. 

The three hosts join Clement’s motion, which claims the network did not exhibit any “actual malice” by airing conspiracy theories by Giuliani, Powell and others.

In response to letters from Smartmatic threatening litigation, Fox earlier this month ran a segment from a voting technology expert that debunked the conspiracy theories surrounding Smarmatic. During the segment, Eddie Perez, a director at the Open Source Election Technology Institute, said he had seen no evidence Smartmatic had deleted or switched any votes, and indeed that Smartmatic is not used in the United States except for in Los Angeles.

“So that is where we stand right now, we will keep investigating,” a smiling Bartiromo said following the 2-minute comment.

In her motion, Bartiromo used the Perez segment and a similar interview with constitutional attorney Alan Dershowitz, who had expressed skepticism about the Smartmatic claims, as proof she pushed back on Giuliani and Powell.

“Far from supporting a claim that Smarmatic can prove that Bartiromo acted with actual malice, that even-handed commentary on a developing story confirms that she did not,” the motion states, noting the host was covering the claims “because she was confident they were newsworthy.”

Dobbs and Pirro had run a similar debunking segment in December related to Dominion Voting Systems. Pirro did not introduce that segment, however, and Dobbs did not substantially comment on it.

Fox has since parted ways with Dobbs, dropping the 75-year-old host from its prime-time lineup without cause. Bartiromo, on the other hand, could soon be rewarded with a cushy spot on the network in addition to her “Sunday Morning Futures” interview show. 

J. Erik Connolly, an attorney at Benesch Friedlander who represents Smarmatic, did not immediately return an email seeking comment.

Follow @NickRummell

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