Fox News argues its hosts didn't need to fact-check election conspiracy theories from Trump's lawyers in response to Smartmatic defamation suit

• Fox News is trying to dismiss a $2.7 billion lawsuit from Smartmatic over election conspiracies.
• It argues its hosts didn't have a legal responsibility to fact-check falsehoods from Trump's lawyers.
• Election conspiracy theories have led to a tangle of legal consequences for right-wing media.

Attorneys representing Fox News once again asked a New York court to dismiss a defamation lawsuit from Smartmatic over conspiracy theories about the 2020 election, arguing its hosts didn't have a responsibility to fact-check the attorneys hired by Donald Trump.

"Smartmatic asks this Court to become the first in history to hold the press liable for reporting allegations made by a sitting President and his lawyers," the attorneys wrote in a brief filed to court Monday, later adding: "Smartmatic identifies no case in the history of our nation in which the press was held liable for reporting allegations made by or on behalf of a sitting President."

The lawsuit, filed in February, asks for $2.7 billion in damages and accuses Fox News of waging a disinformation campaign that irreparably damaged Smartmatic's reputation. It also targets three individual hosts - Maria Bartiromo, Jeanine Pirro, and Lou Dobbs - who hosted Trump's attorneys, Rudy Giuliani and Sidney Powell.

Powell and Giuliani had promoted conspiracy theories baselessly claiming that Smartmatic was secretly in cahoots with Dominion Voting Systems, a rival election technology company, in a complicated scheme to manipulate the 2020 presidential election that involved now-dead Venezuelan president Hugo Chavez.

Dozens of lawsuits, audits, investigations, and recounts have found no evidence of widespread fraud in the 2020 election.

The false claims have led to a messy fallout. Trump fired Powell in late November, and Giuliani distanced himself from her even as he continued to advance conspiracy theories. Dominion sued Powell, Giuliani, Fox News, and other right-wing media figures that pushed those theories. And Fox News canceled Lou Dobb's show shortly after Smartmatic filed its lawsuit.

Fox News first asked a judge to dismiss the case a few days after it was filed. On Monday, the network's attorneys at Kirkland & Ellis LLP asked the judge to dismiss the claims against the individual hosts as well. The attorneys argue the legal standards for defamation don't require the hosts to investigate whether Powell's and Giuliani's claims are actually true.

"Smartmatic simply identifies information 'available to' the public that it thinks the Fox hosts should have researched. But such 'failure to investigate' claims do not rise to the level of actual malice," the attorneys wrote, citing other legal cases.

In earlier filings, Smartmatic said that the Fox News hosts' failure to push back against false claims from Powell and Giuliani was itself defamatory, and said that the media organization shouldn't receive legal protections normally given to journalists.

The new filings from Fox News spend dozens of pages going through individual claims from Bartiromo, Pirro, and Dobbs, arguing their comments were summaries of what Trump's lawyers said, opinions protected by the First Amendment, or statements that didn't directly mention Smartmatic and therefore didn't need to be defended in the lawsuit.

As one example, Fox News' attorneys cite a tweet included in Smartmatic's lawsuit where Dobbs wrote, "Read all about Dominion and Smartmatic voting companies and you'll soon understand how pervasive this Democrat electoral fraud is, and why there's no way in the world the 2020 Presidential election was either free or fair."

They wrote the statement was simply an opinion, and that statements on Twitter should not be taken seriously.

"New York courts have recognized that Twitter is not a natural setting in which a reasonable viewer would conclude that he is hearing actual facts about the plaintiff," the lawyers argue.