The Real Cost of Fake News: Smartmatic’s $2.7 Billion Defamation Lawsuit Against Fox News

Abstract

On February 4, 2021, voting machine company Smartmatic filed a defamation lawsuit against Rudolph Giuliani, Sidney Powell, Fox News, and Fox News personalities Lou Dobbs, Maria Bartiromo, and Jeanine Pirro. The complaint seeks $2.7 billion in compensatory damages, punitive damages, and attorney’s fees. The 285-page complaint alleges the damages were incurred from the defendants’ false claims that Smartmatic was actively involved in rigging the 2020 U.S. presidential election in favor of Joe Biden. This is similar to the defamation lawsuit filed by Dominion Voting Systems, Inc., (Dominion) against Sidney Powell on January 8, 2021. Part II of this Article addresses the complaint generally. Part III considers the allegation that the defendants actively colluded together. Part IV analyzes the case against Giuliani and Powell, including false statements, intent, their failed election fraud lawsuits, actual malice, and potential immunity as attorneys for Donald Trump. Part V considers the case against Fox News, including issues of potential motivations, what was known when, ambiguities in coverage, and the accessibility of accurate information. Part VI considers Smartmatic’s various damages claims, including the ability to sue on behalf of employees and receive compensation for future, reputational harm. Part VII compares the present lawsuit to the earlier Dominion lawsuit against Sidney Powell. Part VIII uses the plaintiffs’ attorney’s former “pink slime” defamation lawsuit as a comparison. Part IX concludes by predicting the trial outcome and ramifications this case may have on the political process and defamation precedent. The outcome of the Smartmatic lawsuit could have significant consequences not just for the defendants but also for the political landscape. For example, the discovery process has the potential to uncover damaging communications implicating high-profile players. There is even evidence to suggest that future litigation could include former President Trump. The Smartmatic lawsuit could also have a long-term effect on defamation case law if it reaches the Supreme Court. The Court could use it as an opportunity to revisit Sullivan, as recently advocated for by Justice Thomas.