“Reporting both the allegations and the denials is critical to the truth-seeking function, not an invitation for groundless lawsuits”

FOX News Media, along with Maria Bartiromo, Judge Jeanine Pirro and former host Lou Dobbs, have all filed replies in support of their motions to dismiss the lawsuit by electronic voting company Smartmatic. The replies follow FOX’s earlier motion to dismiss, which was filed on February 8^th, and the additional motions filed by Ms. Bartiromo, Ms. Pirro and Mr. Dobbs on February 11^th.

Kirkland & Ellis Partner Paul Clement filed the replies, which argue, “Seeking to impose billions of dollars in liability for [Fox’s] coverage goes beyond a chilling effect: It poses a direct threat to the reporting of newsworthy allegations on which our democracy depends. … Reporting both the allegations and the denials is critical to the truth-seeking function, not an invitation for groundless lawsuits.”

Referencing numerous cases in support of their arguments, the replies outline how both the First Amendment and New York’s anti-SLAPP statute compel dismissal of Smartmatic’s lawsuit. As the replies explain, Smartmatic’s frustration stems from the fact that it became embroiled in a heated national controversy brought forth by the sitting President of the United States. But “one cannot supply voting technology and expect to avoid the spotlight. Controversy comes with the territory.” And it was “the President’s allegations, not the press’s coverage of them, that put Smartmatic in the spotlight.” There’s no dispute that those allegations were newsworthy just by virtue of being made, and the “press does not lose its protection if the allegations are disproven; instead, the reporting is part of the truth-seeking process.” The replies highlight the extraordinary “chilling effect” that allowing a lawsuit like this one to go forward would have on public debate.

The replies also explain why Smartmatic fails to adequately allege the necessary “actual malice” to support a defamation suit, explaining that Smartmatic’s effort to make up in volume what it lacks in substance comes “nowhere close to bringing home to any of the FOX hosts (let along to FOX itself) the actual knowledge required to prove actual malice by clear and convincing evidence.”

The Bartiromo filing reinforces these core First Amendment claims. As it notes, Smartmatic has failed to identify any case “in the history of our nation in which a member of the press has been held liable for covering allegations made by a sitting president and his lawyers.” “Shorn of rhetoric and hyperbole,” the reply explains, Smartmatic’s allegations against Ms. Bartiromo “do not begin to withstand scrutiny.” The electronic voting company identifies fewer than “a dozen unique statements” stemming from three broadcasts within three weeks of the election, and “under both the First Amendment and Section 74, those statements are not actionable defamation as a matter of law.” The reply also explains why Smartmatic comes “nowhere close to satisfying the actual-malice standard imposed by the First Amendment and New York law,” which is another reason all the claims against Ms. Bartiromo must be dismissed.

As the Pirro brief explains, the sole claims from Smartmatic involving Ms. Pirro rest on statements from only two segments from the program Justice with Judge Jeanine, none of which come “close to actionable defamation.” The Pirro reply outlines how “any examination of those statements” pulled from Ms. Pirro’s program “readily confirms that they not only constitute neutral report, fair report, and/or opinion, but often did not even concern Smartmatic.” In calling for the claims against Ms. Pirro to be dismissed, the reply also explains why the Smartmatic complaint “falls woefully short of alleging facts that would prove by clear and convincing evidence that Pirro acted with actual malice.”

The Dobbs motion again illustrates the core First Amendment problems with Smartmatic’s claims. Contrary to Smartmatic’s assertions, Mr. Dobbs was not purporting to accept the president’s allegations as true or embrace them as his own; in fact, he reminded viewers that the president’s lawyers “would need to prove their claims in court” and “called for an investigation to find out the truth.” As the reply explains, that is not defamation; “it is core journalistic activity” fully protected by the First Amendment. Furthermore, the reply explains why Smartmatic “comes nowhere close to satisfying the actual-malice standard,” as it’s clear Mr. Dobbs reported the president’s allegations, presented Smartmatic’s denials, and offered his opinion that the allegations warranted an investigation. “That is not actual malice,” the response illustrates, “it is part of the uninhibited, robust and wide-open debate that our Constitution protects.”

The responses in support of the motions to dismiss were filed by Kirkland & Ellis on behalf of FOX News Media, Maria Bartiromo, Judge Jeanine Pirro and former host Lou Dobbs.

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