“Strikes at the Heart” of the First Amendment

NEW YORK – February 8, 2021 – FOX News Media today filed a motion to dismiss a lawsuit by electronic voting company Smartmatic, stating that the complaint seeks to “stifle debate and chill vital First Amendment activities.”

Kirkland & Ellis Partner Paul Clement filed the motion on behalf of FOX News Media and commented, “This suit strikes at the heart of the First Amendment. Smartmatic’s theory is fundamentally incompatible with the reality of the modern news network and deeply rooted principles of free speech law.”

FOX News Media added, “FOX News has moved to dismiss the Smartmatic lawsuit because it is meritless. If the First Amendment means anything, it means that Fox cannot be held liable for fairly reporting and commenting on competing allegations in a hotly contested and actively litigated election.  We are proud of our election coverage which stands in the highest tradition of American journalism.”

The motion characterizes “two separate and independent reasons,” arguing for dismissal and stating that “Smartmatic’s complaint must be dismissed, and its efforts to reject our deeply rooted free-press protections must be firmly rejected.” Leading with the fact that “Smartmatic has not identified any statement by FOX itself that could be actionable as defamation,” the filing also demonstrates that Smartmatic fails to allege that FOX published the challenged statements with actual malice.”

As delineated in the motion, “Smartmatic’s effort to saddle FOX with billions of dollars of liability just for covering all sides of a vigorous debate of profound national importance must be dismissed.” Furthermore, the filing explains, “When a sitting President and his surrogates claim that an election was rigged, the public has a right to know what they are claiming, full stop. When a sitting President and his surrogates bring lawsuits challenging the results of an election, the public has a right to know the substance of their claims and what evidence backs them up, full stop. In that context, interviewing the President’s lawyers is fully protected First Amendment activity, whether those lawyers can substantiate their claims or not. Here, FOX was providing precisely that kind of newsworthy information — typically allowing the President’s surrogates to explain their allegations and evidence themselves.”

Additionally, the filing demonstrates that FOX News Media covered all aspects of the developing news, stating, “As the story unfolded, and Smartmatic denied many of those allegations, FOX covered that as well, including by reporting Smartmatic’s denials, offering Smartmatic the opportunity to tell its side, and soliciting the views of disinterested third parties on the veracity of the allegations against Smartmatic, sometimes in a debate-like format. In short, FOX did exactly what the First Amendment protects: It ensured that the public had access to newsmakers and unquestionably newsworthy information that would help foster “uninhibited, robust, and wide-open” debate on rapidly developing events of unparalleled importance.”

In conclusion, the motion argues that, “The logic of Smartmatic’s position would be that the press must censor all discussion of even the most newsworthy of public controversies to escape imputation of actual malice, even in the context of statements by objectively newsworthy third parties during live television interviews,” which is a blatant affront to the First Amendment.

FOX News Media operates the FOX News Channel (FNC), FOX Business Network (FBN), FOX News Digital, FOX News Audio, FOX News Books, the direct-to-consumer digital streaming services FOX Nation and FOX News International, and the newly announced platform FOX Weather. Currently the number one network in all of cable, FNC has also been the most watched television news channel for 19 consecutive years, while FBN currently ranks among the top business channels on cable. Owned by FOX Corporation, FOX News Media reaches 200 million people each month.



Irena Briganti/212-301-3608

Caley Cronin/212-301-3972