In the opening paragraph of a nearly $3 billion defamation lawsuit against Fox News, we encounter this brilliant expression of the truth: “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.”
Fox News faces two massive defamation lawsuits. Taken together, the cases pose lethal threats to the network’s bottom line.
You might assume the company filing suit here is Dominion Voting Systems. But no. The above paragraph is from the New York defamation lawsuit by Smartmatic, an election and software technology company, against Fox News, Fox Corp. and some of the network’s hosts, as well as former President Donald Trump’s personal counsel Rudy Giuliani.
That means Fox News faces two massive defamation lawsuits: one from Dominion Voting Systems and the other from Smartmatic. Taken together, the cases pose lethal threats to the network’s bottom line.
Smartmatic alleges in its $2.7 billion lawsuit that Fox News and the other defendants broadcast more than 100 knowingly false statements about the company’s involvement in the 2020 election. (It’s seeking that amount because it claims it has lost more than $2.7 billion in value since the 2020 presidential election.) According to Smartmatic’s complaint, the defendants repeated, on at least 13 different broadcasts, the following false narrative: “Smartmatic was a Venezuelan company under the control of corrupt dictators from socialist countries. In [the defendants’] story, Smartmatic’s election technology and software were used in many of the states with close outcomes. And, in [the defendants’] story, Smartmatic was responsible for stealing the 2020 election by switching and altering votes to rig the election for Joe Biden and Kamala Harris.”
Despite attempts by the defendants to get the lawsuit dismissed, the New York Supreme Court confirmed last month that Smartmatic can move forward with its claims against Fox News, hosts Maria Bartiromo and Lou Dobbs, and Giuliani.
It’s not unreasonable to assume that as discovery proceeds and depositions are taken, Smartmatic, as Dominion already has, will have an opportunity to accuse Fox of not only defaming the company, but also deceiving its viewers all in the pursuit of profit. In Smartmatic’s case, the evidence will show that the network’s executives, anchors and hosts didn’t believe the baseless conspiracy theories about election and voting fraud but continued to promote those lies on its shows and even allowed guests such as Giuliani and Sidney Powell to repeat their dishonesty, thereby implicating Smartmatic.
Internal chats, emails and communications by Tucker Carlson, Laura Ingraham, Sean Hannity and other hosts, as well as executives including Rupert Murdoch and Suzanne Scott, which were produced during the discovery process in the Dominion case will prove to be valuable in Smartmatic’s case. Fox will object, of course, but now that the proverbial cat has been let out of the bag courtesy of the Dominion case, we should expect a judge to let Smartmatic use the defendants’ own words as evidence that Fox personalities believed, for example, that claims from Giuliani and Powell about a stolen election were absurd.
Unlike Dominion, Smartmatic is also pursuing claims against Giuliani and individual hosts Dobbs and Bartiromo.
Unlike Dominion, Smartmatic is also pursuing claims against Giuliani and individual hosts Dobbs and Bartiromo, two of the most egregiously bad actors at Fox News when it came to the network’s “disinformation campaign.” Smartmatic also has sued Powell, Mike Lindell, OANN and Newsmax in separate lawsuits in federal court, alleging similarly defamatory conduct.
Smartmatic is also seeking punitive damages from those it accuses of defamation. That is where it could draw the most blood. An award of punitive damages by a jury could be jaw-droppingly more than just the $2.7 billion in economic and non-economic damages Dominion seeks. If Dominion and Smartmatic prevail against Fox and are awarded actual and punitive damages, there could be little to nothing left of Fox at the end. An anticipated defense from Fox will likely be the fact that it aired, in December of 2020, a 3-minute video interview of an elections technology expert that seemed to backtrack on claims surrounding Smartmatic. The segment aired on shows with hosts Dobbs, Bartiromo, and Jeannine Pirro and showed the expert answering questions about Smartmatic and the 2020 presidential election. Fox could argue that in airing this video, it effectively retracted whatever perceived falsehoods were pushed out on the network about Smartmatic and that, therefore, it should not be found to be liable for defamation of the company. Significantly, Smartmatic argues in its lawsuit that the defendants’ dissemination of the lies created the perfect environment for a “mob to attack the U.S. Capitol” and that those lies “undermined people’s belief in democracy.” It also asks that the defendants “fully and completely retract their false statements and implications” about Smartmatic. For Fox in particular, having to affirmatively admit that what it peddled to its viewers were lies could be one of the worst punishments the network could suffer. Here’s another great paragraph from the lawsuit: “With this action, Smartmatic says: Enough. Facts matter. Truth matters. Defendants engaged in a conspiracy to spread disinformation about Smartmatic. They lied. And they did so knowingly and intentionally. Smartmatic seeks to hold them accountable for those lies and for the damage that their lies have caused.” Dominion may be closer to going to trial in its lawsuit against Fox, but we shouldn’t forget Smartmatic as the second in a potential one-two punch that knocks out Fox.
Katie S. Phang
Katie S. Phang is the host of "The Katie Phang Show," which airs Saturdays at 12 p.m. ET on MSNBC. She is a legal contributor for NBC News and MSNBC based in Miami. She leverages her significant trial attorney experience to provide analysis and commentary on the latest legal issues. 
