Smartmatic’s case against Newsmax will test 2020 defamation claims

WILMINGTON, Del.- A high-stakes court case scheduled to begin later this month will finally test whether a television network can be held liable for making statements about the 2020 election that a voting technology company contends were false and defamatory.

The case pits the voting technology company Smartmatic against the conservative cable channel Newsmax, which Smartmatic says tanked its value by falsely portraying it as part of a nefarious plot to overturn the 2020 election in President Joe Biden’s favor. Smartmatic has also sued Fox News using similar arguments, making the Newsmax battle something of a bellwether. The Fox case, which will be held in New York, is not expected to go to trial until 2025.

The Newsmax case, scheduled to begin Sept. 30 in Wilmington, has implications both for the media industry and the cable channel, which has presented itself as a more conservative alternative to Fox News but is a much smaller business. “This is a bet-the-company case for Newsmax,” network attorney Howard M. Cooper said during a Sept. 16 hearing.

The case has echoes of the lawsuit filed by another voting technology company, Dominion Voting Systems, against Fox News, which never reached trial after the parties settled in April 2023 for $787.5 million. The judge in that case, Eric M. Davis, is also hearing the Smartmatic case, giving it something of a throwback feel for the reporters who flocked to Wilmington last year expecting a trial that could have included testimony from big shots like Rupert Murdoch and Tucker Carlson.

Smartmatic’s mission in the Newsmax case is a similar to what Dominion faced: to prove to a jury that executives and hosts at the cable channel knew that on-air claims were false, but allowed them anyway, which would meet the legal standard (“actual malice”) of defamation.

Among other claims, Smartmatic has pointed to a Nov. 17, 2020, remark by Newsmax correspondent Emerald Robinson, who falsely asserted that “Smartmatic software is what was used by Hugo Chávez and his successors to fix elections in Venezuela,” and a comment made by Newsmax host Chris Salcedo, who said that Smartmatic software comes with a “directive” on “how you change the results” of an election.

During the pretrial hearing, Davis said claims alleging that Smartmatic interfered with the 2020 election, including those made on Newsmax, were false.

“We’re not going to get into issues about whether the 2020 election was rigged by Smartmatic because it wasn’t rigged by Smartmatic,” the judge said.

Davis also said that Newsmax employees cannot cite the First Amendment to claim they are legally permitted to make allegedly defamatory accusations. During a sworn deposition, Newsmax host Greg Kelly said that Smartmatic was “trying to inhibit free speech,” according to a lawyer for the company. Davis was unconvinced. “Did anyone explain to Mr. Kelly that defamation is not free speech?” he asked. “Lying about somebody is not protected speech.”

The judge also decided at the Sept. 16 hearing that Newsmax will not be able to cite other broadcasts that correctly reported on election fraud allegations to buttress its case.

Unlike Dominion, which was used in many states around the country for the 2020 election, Smartmatic software was only used in Los Angeles County, which the company has used to argue that it could not possibly have swung the election.

Newsmax has contended that it was merely reporting on newsworthy allegations being made by President Donald Trump’s surrogates at the time, and has repeatedly pointed to a Dec. 19, 2020, statement it made declaring that Smartmatic had not stolen the election as proof that it made a good-faith effort to correct the record.

Unlike the Fox case, Smartmatic’s evidence — internal emails and text messages between Newsmax employees — has largely been hidden from view, though some communications have been revealed during recent hearings. In one message cited, Newsmax anchor Bob Sellers wrote to a producer, “How long are we going to have to play along with election fraud?” in reference to unproven election claims. The judge said that communication “shows that you don’t agree with it and you’re just doing it for some other reason,” an interpretation favorable to Smartmatic’s case.

Smartmatic’s lawyers have also emphasized a Nov. 12, 2020, email from Newsmax boss Chris Ruddy in which he said that “Newsmax does not have evidence of widespread voter fraud.” But the network pointed out that Ruddy also laid out a case for why coverage of the claims was necessary — that Newsmax “should not censor allegations made by the President or his lawyers or surrogates” — and told his employees to refer to such claims as “alleged.”

In a Sept. 12 ruling, the judge decided that some elements of the case have already been proved by Smartmatic and that others will need to be proved at trial. In a win for Newsmax, the judge decided that the network could argue to the jury that the comments at issue were protected by a privilege in Florida — where Newsmax is based — that allows media outlets to publish “accurate, fair and impartial” reports of judicial proceedings, or that they were made in a disinterested or neutral manner. The judge also ruled that Newsmax did not intentionally target Smartmatic out of a desire to hurt the company.

Newsmax requested that the judge delay the trial after the Department of Justice last month indicted the co-founder of Smartmatic, Roger Piñate, along with another company executive, for an alleged scheme to bribe officials in the Philippines to use Smartmatic election software. While the judge denied that motion, he said Newsmax attorneys can share public information about the charges with the jury.

A jury will be picked next week and the four-week trial is scheduled to be begin the following Monday, unless the two parties can settle. Smartmatic recently settled a similar lawsuit against the far-right network One America News, and a settlement with Newsmax could come at any time in the legal process. Dominion’s settlement with Fox came just moments before the trial was supposed to begin.