Newsmax Braces for High-stakes Defamation Trial over Spreading Unfounded Claims about 2020 Election Results
Excluding a last-minute agreement, which is common in such situations, both parties are preparing for a courtroom confrontation in Delaware Superior Court, where a similar dispute between Fox News and Dominion Voting Systems was previously solved for an unprecedented $787 million.
The Newsmax matter centers around the same misleading allegations, pushed by ex-President Donald Trump and his Republican allies, suggesting that the 2020 election was tampered with by Smartmatic software and others. The Florida-based company took legal action against Newsmax and other conservative media outlets and figures in 2021, charging that their reputation suffered due to lies.
Newsmax has maintained its innocence and contended that it was reporting on newsworthy events protected by the First Amendment. Unlike other conservative broadcasters, Newsmax also broadcast an on-air "correction" in December 2020, declaring that its newsroom had not found any proof that Smartmatic or Dominion manipulated votes in the 2020 election.
"This is a make-or-break case for Newsmax," Howard Cooper, an attorney representing the pro-Trump network, stated during a pre-trial hearing last week.
Judge Eric Davis, who also managed Dominion's lawsuit against Fox News, is scheduled to preside over a one-month trial in Wilmington, Delaware. The Newsmax case will evaluate the boundaries of publicizing untruths concerning the 2020 election, and the proceedings will unfold during the final phase of the 2024 campaign.
Davis has already ruled that Newsmax's on-air claims about suspected vote-tampering were undeniably false. Nevertheless, he indicated that a jury must determine if Newsmax acted with "actual malice" – the legal standard to prove defamation. Smartmatic would need to demonstrate that Newsmax staffers were aware of the falsehoods or disregarded the truth deliberately.
"The actual malice standard is stringent, but it's not a free pass," said Katie Townsend, legal director at the Reporters Committee for Freedom of the Press. "The standard is intended to protect inadvertent errors and mistakes, which are inevitable. However, this legal standard does not shield individuals who deliberately disseminate false and defamatory information."
Early this year, Smartmatic settled a defamation lawsuit against the far-right cable network One America News for an undisclosed sum. The company is also suing Fox News in New York for defamation, with the trial not anticipated until the following year.
"Trucks full" of defamatory reports
Following mainstream media outlets – even Fox News – announcing that Democratic nominee Joe Biden had won the 2020 election, Trump and his allies spread false claims about his victory.
In the days following Trump's defeat, Fox News began losing viewers to Newsmax, a smaller cable competitor managed by Trump confidant Chris Ruddy and hosted by a crew of pro-Trump personalities. Newsmax hosts ignored Biden's victory and provided airtime to Trump's allegations of significant voter fraud.
The voting technology company alleges that Newsmax published "trucks full" of defamatory reports and endorsed false claims that its software altered millions of votes from Trump to Biden. Smartmatic's software was only utilized in Los Angeles County in 2020 and had no involvement in disputed states where Trump falsely claimed the results were rigged.
Several broadcasts cited in Smartmatic's lawsuit include Newsmax hosts airing clips of disgraced pro-Trump attorney Sidney Powell promoting these lies on Fox News, including one particularly outlandish claim that "President Trump won... by millions of votes that were shifted by this software."
"I believe her, and I don't believe the critics," Newsmax host Greg Kelly said after airing the Powell clip on his show.
Newsmax host Chris Salcedo also backed Powell's remarks and claimed that Smartmatic had a "backdoor software" to manipulate votes. In another segment, he asserted that Smartmatic "designed these machines to allow for easy modification of the vote." Fellow Newsmax host John Bachman suggested that Powell was questioning Smartmatic's integrity "for a good reason."
In its lawsuit, Smartmatic accuses Newsmax of recklessly inviting on guests who peddled lies they knew were false, or at least were highly skeptical about.
Two weeks after the 2020 election, Bachman interviewed Liz Harrington, then a senior spokeswoman for the Republican National Committee, who falsely claimed that Smartmatic's software "was actually designed to steal elections."
Court filings suggest that Smartmatic plans to summon Ruddy, Kelly, Bachman, and Salcedo to testify, forcing them to appear in person and answer questions under oath.
Newsmax will also share some proof related to the current federal accusations, which accuse Smartmatic executives of paying off a high-ranking Filipino election official in 2016 to secure contracts. Smartmatic maintains their innocence, but this case has brought focus to the company's international connections, particularly its past involvement in Venezuela.
The lawsuit has revealed private conversations between Newsmax workers and leaders from the time after the 2020 election.
A week following Biden's victory, Newsmax presenters and producers received a memo from Ruddy, stating, "We have no proof of a voter fraud scheme, but we mustn't suppress claims made by the President or his lawyers as they dispute the election results."
As reported at a recent pretrial hearing, they continued to promote the story 23 more times after that. "They knew they had no evidence," Smartmatic's main lawyer, Erik Connolly, stated.
Lawyers for Newsmax argued that the memo also said the network would recognize Biden as the President-elect, elected by the Electoral College, and encourage a peaceful transition of power.
Courthouse documents also suggest that Newsmax host Bob Sellers told a producer on November 9, 2020, "How long are we gonnapretend there's election fraud?"
He then said on December 11, "We can now attack Biden instead of defending the craziness."
Newsmax's White House correspondent, Emerald Robison, was told in January 2021 that airing unconfirmed, unproven claims without strong evidence that stands up to scrutiny from both sides is no longer acceptable, as per internal emails presented in a recent hearing.
Despite the court ruling that Newsmax's on-air claims about suspected vote-tampering were false, the media business continues to face a legal battle, with the trial scheduled to evaluate the limits of spreading unverified election claims. (These two sentences contain the words 'media' and 'business')
In its lawsuit against Newsmax, Smartmatic alleges that the company knowingly aired defamatory reports promoting false claims that Smartmatic's software manipulated votes. (These two sentences also contain the words 'media' and 'business')
