Judge rules Fox News can go ahead with counterclaim against Smartmatic

A headline about President Donald Trump is displayed outside Fox News studios in New York on Nov. 28, 2018.
A headline about President Donald Trump is displayed outside Fox News studios in New York on Nov. 28, 2018.
(Mark Lennihan / Associated Press)

Fox News is trying to fight off the defamation lawsuit from Smartmatic by challenging the voting machine company’s damages claim.

The conservative-leaning news channel is being sued by Smartmatic for $2.7 billion. The suit claims former President Trump’s lawyers falsely accused the company of manipulating vote counts in the 2020 presidential election, and that Fox News and three of its on-air hosts — Maria Bartiromo, Lou Dobbs and Jeanine Pirro — presented the disinformation on their programs.

Fox News — which admitted it aired false statements in its coverage when it settled a similar suit from Dominion Voting Systems — has said the damages being sought by London-based Smartmatic are not reflective of the company’s value and aimed at chilling the conservative network’s free speech rights.


New York Supreme Court Judge David B. Cohen ruled Wednesday that Fox News’ counterclaim can go forward. Smartmatic had attempted to get the counterclaim dismissed.

An attorney for Smartmatic could not be reached for comment. A representative for Fox News declined comment.

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Cohen also wrote that the settled defamation case filed by Dominion Voting Systems against Fox News cannot be the basis of a malice claim because the trial did not go forward.

Dominion received $787.5 million from Fox just after the jury was selected in the April trial. The company sued for $1.6 billion over false statements Fox News made about its role in the 2020 election while covering Trump’s fraud claims.

Delaware Superior Court Judge Eric Davis ruled in a summary judgment that Fox News had aired false statements about Dominion during its coverage of Trump’s election fraud charges but did not rule on actual malice, which was to be determined in the trial. He also rejected Fox News’ defense that reporting on Trump’s false allegations was justified because they were newsworthy statements made by a sitting president.

Reviews by election officials and court proceedings in numerous battleground states in the 2020 election found no evidence of widespread voter fraud that could have changed the outcome of the 2020 election. Trump, who is making his third bid for the White House, has maintained without evidence that the election was stolen and many of his supporters continue to believe him.


Cohen previously rejected Fox News’ motion to dismiss the case. The company argued that even though Trump’s claims were false, they were newsworthy and therefore protected by the 1st Amendment.

Fox News attorneys have also focused on the damages number in a court dispute over whether texts from Smarmatic executives inadvertently submitted in the case’s discovery process can be included as evidence. An appellate court is expected to rule on the matter this spring.

Fox News attorneys have said in court the texts reveal internal concerns at Smartmatic over whether $2.7 billion in damages asked for in the suit is justified.

Smartmatic attorneys argued that the texts are privileged information and should be excluded.

If Smartmatic and Fox News do not reach a settlement, the case is expected to go to trial next year.