Smartmatic’s suit against Newsmax over 2020 election reporting appears headed for trial
DOVER, Del. — A lawsuit between an electronic voting machine manufacturer targeted by allies of former President Donald Trump and a conservative news outlet that published allegations of vote manipulation in the 2020 election appears headed to trial, following a Delaware judge’s ruling on Thursday.
Florida-based Smartmatic is suing Newsmax, alleging that the cable network’s hosts and guests made false and defamatory statements after the election, suggesting that Smartmatic helped rig the results and that the network’s software was used to skew votes.
Newsmax, also based in Florida, claims it only reported on serious and newsworthy allegations made by Trump and his supporters, including former New York City Mayor Rudy Guiliani and conservative attorney Sidney Powell.
Attorneys for both sides asked District Court Judge Eric Davis to rule in their favor without holding a trial. The trial, which is scheduled to begin Sept. 30, was scheduled to begin Thursday. On Thursday, Davis granted both sides partial summary judgment, but he said a jury must decide several important issues.
“Reports about Smartmatic software or voting machines changing election results are factually incorrect,” Davis wrote, noting that Smartmatic did not supply any election machines or software used in the 2020 election outside of Los Angeles.
However, the judge found that not all of the allegedly defamatory statements Newsmax published, including statements about Smartmatic’s ties to Venezuela and the late President Hugo Chavez, were found to be materially false.
“Therefore, the court will allow Newsmax to challenge the falsity of Smartmatic’s ties to Venezuela,” he wrote.
In court documents, Newsmax has described Smartmatic as “a struggling election technology company with a checkered history” that is using a legally baseless and unconstitutional theory of liability to try to gain a huge windfall.
Last month, a federal grand jury in Florida three current and former executives charged of Smartmatic in a scheme to pay more than $1 million in bribes to deploy its voting machines in the Philippines. Prosecutors allege that Smartmatic’s Venezuelan-born co-founder Roger Piñate conspired with others to funnel bribes to the chairman of the Philippine Elections Commission using a slush fund created by overcharging for each voting machine it delivered to authorities.
In a favorable ruling for Newsmax, Davis rejected Smartmatic’s claim that the news outlet 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,” the judge wrote.
Davis previously ruled that Smartmatic is a “limited public figure” for defamation purposes and must show that Newsmax acted with “actual malice” by knowingly and recklessly ignoring the truth. On Thursday, he said that actual malice is a matter for a jury, and that a jury must also decide whether Smartmatic is entitled to damages.
In another blow to Smartmatic, Davis said Newsmax could argue that it is protected from liability under Florida’s “neutral reporting privilege,” which extends to “impartial and neutral reporting” on matters of public interest. Newsmax argues the privilege applies because many of the allegedly defamatory statements were made by third parties who appeared as guests, or were rebroadcast after being made by third parties on non-Newsmax platforms.
“Based on these facts, a reasonable jury could find that Newsmax reported on an issue of public concern without endorsing the election-related allegations,” he wrote, adding that a jury could also find that Newsmax’s reporting was not neutral.
Davis also said Newsmax could claim “fair reporting privilege” regarding White House correspondent Emerald Robinson’s reporting on a whistleblower statement filed in a Georgia lawsuit challenging the election results. The statement concerned Powell’s allegations that Smartmatic colluded with the Venezuelan government in that country’s 2013 presidential election.
Newsmax argues that Florida’s fair reporting privilege applies to accurate reporting of legal proceedings, including court records, and that Robinson reported on the contents of a sworn statement filed in federal court. Smartmatic argues that the sworn statement was not signed or sworn to, and therefore is not an official document. Davis said a jury will have to decide whether the fair reporting privilege applies to Robinson, who falsely reported that the sworn statement was sworn.
The Delaware lawsuit, which takes issue with 24 Newsmax reports 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.