DOVER, Del. — A Delaware judge on Monday ruled out the possibility of punitive damages a libel case an electronic voting machine manufacturer targeted by allies of former President Donald Trump versus a conservative news outlet that made allegations of vote manipulation in the 2020 election.
The ruling by Judge Eric Davis comes just days before jury selection begins in a lawsuit between Florida-based Smartmatic and cable network Newsmax.
Smartmatic alleges that hosts and guests on its Newsmax program made false and defamatory statements in November and December 2020, implying that Smartmatic participated in the manipulation of results and that its software was used to switch votes. Newsmax, also based in Florida, alleges that it simply reported on newsworthy allegations made by Trump and his supporters, including former New York City Mayor Rudy Giuliani and conservative attorney Sidney Powell.
In a ruling earlier this month, Davis said that claims about Smartmatic software or voting machines changing election outcomes were “factually false.” Importantly, however, he rejected Smartmatic’s claim that Newsmax acted with “express malice” under Florida law, meaning its primary motive was to harm Smartmatic.
“There is no evidence that Newsmax acted with malicious intent toward Smartmatic,” Davis wrote.
Attorneys for Newsmax asked for clarification of that ruling, arguing that it meant Smartmatic could not seek punitive damages for alleged defamation. Newsmax said Smartmatic had agreed to prove both express and actual malice in order to seek punitive damages.
Smartmatic denied such a determination, saying its definition of express malice was not the same as Newsmax’s. Smartmatic said it uses the term as an “imprecise shorthand” for a state of mind that is distinct from actual malice. Punitive damages, subject to a cap, are appropriate if a jury finds willful misconduct or gross negligence by a defendant, regardless of intent to harm the plaintiff, Smartmatic argued.
The judge rejected those arguments on Monday, saying that express malice is well-defined under Florida law, and that Florida law requires both actual malice and express malice for punitive damages. To prove actual malice, Smartmatic must show that Newsmax acted with “reckless disregard for the truth,” or with knowledge that the broadcast statements were false.
“(T)he Florida law provides that in order to support damages, the plaintiff must show that the defendant’s feelings toward the plaintiff manifested ill will, hostility, or malicious intent,” Davis wrote, adding that Smartmatic had agreed to damages with Newsmax in a pre-trial settlement.
“The court will not permit the jury to consider the issue of punitive damages at trial,” he concluded.
Newsmax released a statement praising the ruling, adding that Smartmatic’s lawsuit “threatens freedom of speech and freedom of the press.”
Smartmatic said in a statement that the ruling will not prevent the company from suing Newsmax for its “reckless defamation” and seeking “significant damages.”
In an earlier ruling, Davis said Newsmax should be allowed to argue that it is protected from liability under Florida’s “neutral reporting privilege,” which extends to “impartial and neutral reporting” of matters of public concern. Newsmax argues the privilege applies because many of the allegedly defamatory statements were made by third parties who appeared as guests or were repeated after they were made by third parties on non-Newsmax platforms.
In a ruling in Smartmatic’s favor earlier this month, Davis also said he had rejected Newsmax’s evidence related to a federal criminal investigation that led to accusations last month against three current and former Smartmatic executives, including the company’s Venezuelan-born co-founder Roger Piñate. The charges relate to an alleged scheme to pay more than $1 million in bribes to install Smartmatic voting machines in the Philippines. Newsmax argued that the investigation and charges should be presented to jurors as alternative grounds for alleged reputational harm or economic loss that Smartmatic attributes to Newsmax.
The judge denied Smartmatic’s motion to bar Newsmax from reporting evidence involving Smartmatic witnesses who invoked their Fifth Amendment right against self-incrimination. Davis said that issue would have to be decided on a “question-by-question” basis at trial. Piñate is among the witnesses scheduled to testify.
The Delaware lawsuit, which criticizes Newsmax reporting over a five-week period in late 2020, is one of several stemming from post-election reporting by conservative news organizations. Smartmatic is also Sue Fox News for defamation in New York and recently a lawsuit settled in the District of Columbia against One America News Network, another conservative outlet.
Dominion Voting Systems has similarly filed several defamation lawsuits against those who spread conspiracy theories who blames his election machinery for Trump’s loss. Last year, in a case presided over by Davis, Fox News settles with Dominion for $787 million.