Fox News’s next big problem: Smartmatic

Also possibly agitating for holding out was what comes next. Specifically, Fox faces more potential legal liability in a similar case involving another voting technology company, Smartmatic, which is suing for $2.7 billion.

The fact that Fox forked over nearly $800 million in the Dominion case — and that Smartmatic was repeatedly invoked right alongside Dominion as guests and hosts floated wild conspiracy theories about voting machines and the 2020 election — must have Smartmatic’s lawyers licking their chops.

“Dominion’s litigation exposed some of the misconduct and damage caused by Fox’s disinformation campaign,” Smartmatic lawyer Erik Connolly said Tuesday. “Smartmatic will expose the rest.”

But you could make an argument that what Fox aired about Smartmatic might be even more problematic.

Fox’s real-time response to legal pressure from Smartmatic lends credence to that idea.

It was Smartmatic, rather than Dominion, you might recall, that was the subject of an awkward deposition-esque segment that aired in mid-December 2020 on Fox shows that had promoted the voting-machine claims. The segment, which came in response to a legal demand letter from Smartmatic’s lawyers and featured an election technology expert debunking those claims, aired on shows hosted by Lou Dobbs, Maria Bartiromo and Jeanine Pirro.

Smartmatic’s lawsuit is also the one that was filed in February 2021 just a day before Fox announced it had canceled Dobbs’s Fox Business show. (Dobbs may have gone further than other hosts in embracing such theories.)

Fox said of the Smartmatic case: “We will be ready to defend this case surrounding extremely newsworthy events when it goes to trial, likely in 2025. As a report prepared by our financial expert shows, Smartmatic’s damages claims are implausible, disconnected from reality, and on its face intended to chill First Amendment freedoms.”

Many of the allegations against Smartmatic were similar to those against Dominion, and Smartmatic was often lumped in with Dominion in the same allegation. They included the false claims that Dominion machines used Smartmatic software to rig the election. They included the claim that Smartmatic was used to rig elections before and that its purported foreign ties demonstrated that. Smartmatic’s software was also cast as eminently flawed and even deliberately hackable.

Indeed, Smartmatic was often cast as the actual conduit for stealing the election.

In an infamous Nov. 14, 2020, tweet, Dobbs’s account promoted a tweet from Trump lawyer Rudy Giuliani that said that, while Dominion was counting the votes, “it was a front for SMARTMATIC, who was really doing the computing.” The Dobbs account added, “Read all about Dominion and Smartmatic voting companies and you’ll soon understand how pervasive this Democrat electoral fraud is.”

None of this is true. Fact-checkers noted that even as Fox was airing such claims, both Dominion and Smartmatic denied a business relationship and that there was no evidence Dominion used Smartmatic software. What’s more, Smartmatic has said, including in its lawsuit, that its technology was used only in Los Angeles County in the 2020 election — hardly enough to have an impact on a national election in swing states.

Dobbs acknowledged these fact checks on the air on Nov. 16, 2020, and Nov. 19, 2020. But that didn’t stop the wild claims from flowing:

• On his Nov. 16 show, Trump-aligned lawyer Sidney Powell said, “I’ve just gotten some stunning evidence from a firsthand witness, a high-ranking military officer who was present when Smartmatic was designed in a way … that the system could change the vote of each voter without being detected.”
• Bartiromo the next day cited having “talked about the software made by Smartmatic that was changing votes from Trump to Biden.” She soon added, “I mean, if you’ve got Democrats in charge from here on out, they’re in charge of the machines, you’ll never see a Republican in the White House again.”
• On Dobbs’s Dec. 10 show, Powell cited “reams and reams of actual documents from Smartmatic and Dominion, including evidence that they planned and executed all of this. … We have evidence of how they flip the votes, how it was designed to flip the votes, and that all of it has been happening just as we have been saying it has been.” Dobbs soon cited a supposed “broadly coordinated effort across many institutions to deny the American people their right to know and to a free and fair election.”

It was around this time that things began to turn, thanks to increasing legal pressure from Smartmatic that would a week later lead to the deposition-esque segment.

Dobbs on the same Dec. 10 show invited Powell to back up her claims with actual evidence. Dobbs said in his deposition in the Dominion case that she had actually promised evidence in advance of the show but declined to ever produce it. “That’s why I was disappointed, because she made it clear in her appearance that she did not have concrete, substantive evidence,” Dobbs said.

Before that point, though, the claims involving Smartmatic had gone off the deep end.

A claim that is likely to figure prominently is the idea that Smartmatic voting data was sent to foreign countries, including Germany and Spain. “They’re sent outside the United States. And they’re not sent to Canada. They’re sent to Germany and Spain,” Giuliani said. Dobbs cited a “cyber Pearl Harbor” involving “foreign adversaries.” (Smartmatic says data was not sent overseas.)

In perhaps the most bizarre iteration, Dobbs on Nov. 19 cited “reports of a raid on a company, Scytl, in Germany, which held election data presumably, and a raid that was carried out by U.S. forces — or so goes the report.” Powell responded, “So it is related to the entire Smartmatic-Dominion software operation” in which “the votes can be changed.”

But the theory had already been roundly debunked in the days before by the Associated Press, USA Today and the New York Times, among others. Scytl said there was no raid of any type. The theory called to mind the “wackadoodle” email, which figured prominently in the Dominion case (and, in fact, that same email mentioned Scytl).

Robert L. Rabin, a defamation expert at Stanford Law School, said “some of the claims endorsed by Fox commentators are so preposterous on the surface that, taken together with the overlapping discovery materials from the Dominion suit, it appears that Smartmatic has a very substantial case.”

University of Utah law professor RonNell Andersen Jones added: “Smartmatic’s suit is in many respects even more compelling as a David-and-Goliath argument to put before a jury. Its complaint emphasizes that it played a totally small and uncontroversial role in the election and that these damaging lies from Fox catapulted it to fame by catapulting it to undeserved infamy.”

The same night as that Dobbs show came another event that bears significantly on the Smartmatic case. Shortly after Dobbs promoted this and other theories from Powell, none other than Fox host Tucker Carlson was offering a much more skeptical view of Powell’s claims. He did a monologue noting that she had yet to provide any real evidence to substantiate her far-reaching claims.

In a ruling last year allowing the case to move forward, a judge highlighted Carlson’s segment as the most significant evidence that Fox’s conduct might clear the “actual malice” bar for defaming Smartmatic.

“Therefore, there are sufficient allegations that Fox News knew, or should have known, that Powell’s claim was false, and purposefully ignored the efforts of its most prominent anchor to obtain substantiation of claims of wrongdoing by [Smartmatic]” New York Supreme Court Justice David B. Cohen said.

Perhaps Fox’s ultimate effort to insulate itself more than it did in the Dominion case — as best exemplified by the deposition-esque segment — will work to its benefit.

But Cohen added that even if Fox didn’t deliberately broadcast lies, “there is a substantial basis for plaintiffs’ claim that, at a minimum, Fox News turned a blind eye to a litany of outrageous claims about plaintiffs, unprecedented in the history of American elections, so inherently improbable that it evinced a reckless disregard for the truth.”

The Dominion case showed that it could make a compelling argument on that front; now it’s Smartmatic’s turn.