- Fox News, Rudy Giuliani, and Sidney Powell’s lawyers were questioned about election-fraud allegations at the center of a defamation suit filed against them by voting technology firm Smartmatic for $2.7 billion.
- The defendants are accused by Smartmatic of spreading the false story that Smartmatic rigged the race against former President Donald Trump.
- New York State Supreme Court Judge David Cohen questioned Fox’s counsel about claims made on air by hosts Maria Bartiromo, Jeanine Pirro, and Lou Dobbs.
Lawyers for Fox News, Rudy Giuliani and Sidney Powell were questioned by a skeptical-sounding judge about a series of election-fraud claims at the center of a $2.7 billion defamation lawsuit filed against them by voting technology firm Smartmatic.
The company, which only operated in Los Angeles County during the 2020 election, accuses the defendants of spreading the false story that it rigged the race against former President Donald Trump.
Judge David Cohen pressed Fox’s counsel in virtual oral arguments on whether the case should be dropped, asking specific claims made on Fox by Maria Bartiromo, Jeanine Pirro, and Lou Dobbs.
“How is that not defamatory?” In mid-November, Cohen cited a claim from Dobbs that Smartmatic had been banned in Texas and asked Fox attorney Paul Clement about it. Smartmatic had not been banned in Texas.
Clement responded that Giuliani, at the time a lawyer for Trump, had alleged nefarious connections between Smartmatic and another company, Dominion Voting Systems.
The companies say Smartmatic and Dominion are independent firms with no connection. Furthermore, Dominion has filed defamation lawsuits against Fox, Giuliani, and Powell, among others, who spread conspiracy theories and vote-rigging claims following the win of Joe Biden over Donald Trump. Fox, Giuliani, and Powell have filed motions to dismiss Dominion’s lawsuits.
In the hearing, Clement argued that the claims made on Fox, by either its hosts or Trump’s legal team, do not rise to the legal standard of defamation and are protected by the First Amendment. He noted that guests such as Powell and Giuliani discussed the biggest story of the day and were newsworthy.
Smartmatic’s attorneys pushed back, saying the defendants stated facts, not opinions, regarding the voting technology company, and that they do not have “blanket immunity” to spread defamatory content.
Additionally, they took issue with Clement’s assertion that Dobbs’ show, which was canceled in February, is primarily considered opinion programming and that its claims are “more likely to be construed as opinions” for the same reason.
Smartmatic lawyer Erik Connolly said in response that Dobbs “did everything that he could to reinforce the notion that he and his guests were providing concrete facts to the audience.”
The attorney for Powell, Howard Kleinhendler, argued at the hearing that Smartmatic lacked standing to sue Powell because Powell didn’t make any of her disputed claims in New York.
Cohen asked Kleinhendler to provide the basis for a slew of Powell’s claims involving Smartmatic, including that it flipped “millions” of votes and that its policies outlined how to wipe away votes. Kleinhendler was unable to respond to some of the claims made to him by the judge.
Powell was removed from Trump’s legal team after a press conference in which she claimed Dominion was part of a Communist conspiracy involving Venezuela and Cuba. Powell hailed her own efforts as the “Kraken,” whose release would tip the election.
Powell’s false election claims, and her position as an “avenging angel” who would reverse Biden’s victory, were part of a fundraising effort that raised millions of dollars, Connolly told Cohen.
“It’s an advertisement for her,” Connolly said of Powell’s five appearances on Fox. In those appearances, he claims, she promoted Smartmatic’s claim that the vote was rigged, and directed viewers to her website for donations.
“The defamation and the fundraising go hand in hand,” Connolly said.
Joseph Sibley, a lawyer for Giuliani, argued in the hearing that Giuliani’s claims about Smartmatic were “product disparagement,” not defamation.