NEW YORK — A Manhattan judge seemed skeptical this week that Fox News can’t be held liable for spreading lies about the 2020 election.

Manhattan Supreme Court Justice David Cohen appeared sympathetic to Smartmatic, a voting technology company that sued the conservative news network and President Donald Trump’s former attorneys Rudy Giuliani and Sidney Powell in February for $2.7 billion in damages, citing a “disinformation campaign” that harmed its business.

Fox News argues that its reporting on the 2020 election — including Giuliani and Powell’s far-fetched false claims — is protected by the First Amendment.

In one exchange during a three-hour hearing Monday, Cohen focused on false statements by Fox News host Lou Dobbs that Smartmatic had been banned in Texas.

“How is that not defamatory?” Cohen asked Fox attorney Paul Clement. “Did any evidence ever come to light that Smartmatic was banned in Texas?”

Smartmatic technology was only used in Los Angeles County for the Nov. 3 election.


The judge also pointed out that claims the election was stolen from Trump were so sketchy even Fox News host Tucker Carlson called them into question on-air. Nevertheless, the network kept covering Giuliani and Powell’s bizarre conspiracy theories that the election was somehow hacked.

“Didn’t that, at a minimum, alert Fox that they should be doing some more fact-checking on what Powell and Giuliani were saying at that point in time?” Cohen asked.

The judge at times appeared exasperated as Clement defended the network’s journalistic integrity. The lawyer tried to excuse misinformation spread by the network as the result of reporting on Giuliani, Powell and others’ statements.

Cohen did not indicate when he would issue a ruling Fox’s motion to dismiss the high-stakes suit. On Aug. 12, a federal judge in Washington D.C. rejected arguments by Trump’s lawyers to dismiss a similar suit brought by another voting technology firm, Dominion.

During another awkward back and forth, Cohen peppered Clement with questions about which of Dobbs’ false statements were opinion and which were fact.

The judge cited Dobbs’ Nov. 16 claim that Smartmatic had ties to Venezuelan President Hugo Chavez, who died in 2013. On Dec. 10, Dobbs claimed to have personally uncovered “groundbreaking new evidence” indicating the election came under “massive cyber attack orchestrated with the help of Dominion, Smartmatic and foreign adversaries.”


“That’s opinion, or that’s fact?” asked Cohen.

“Well, that’s reporting, that’s reporting the allegations that Powell is continuing to make,” Clement responded. “As to the evidence of fraud in the 2020 election, I think that’s clearly his opinion. His widely shared opinion at the time.”

Clement added that Dobbs didn’t need to fact-check the claim because he heard it from Giuliani.

Fox News canceled Dobbs’ show in February.

Fox News seeks to be dismissed from Smartmatic’s suit on the grounds that its reporting is protected by the First Amendment.

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