In the past, Fox News lawyers have successfully argued in court that viewers literally should not believe what Tucker Carlson tells them.
Therefore, it’s more than a little ironic that a judge this week cited a rare display of Carlson’s journalistic prudence to reject the network’s motion to dismiss a multibillion-dollar defamation lawsuit, adding that Fox News may have “purposefully ignored” its popular host’s efforts to substantiate claims made on its airwaves.
In a 61-page ruling handed down on Tuesday, New York Supreme Court Judge David B. Cohen wrote that voting-tech firm Smartmatic’s $2.7 billion lawsuit against Fox News’s parent company Fox Corp., two of its hosts, and former Trump personal attorney Rudy Giuliani can proceed. Smartmatic accused the defendants of fabricating and airing false claims that the company was part of a massive vote-flipping conspiracy to “steal” the 2020 election from former President Donald Trump.
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While the judge said the firm’s case against Fox, current Fox anchor Maria Bartiromo, and former Fox Business host Lou Dobbs could move forward, he granted the motions to dismiss by Fox News host Jeanine Pirro and ex-Trump lawyer Sidney Powell, who infamously promised to “unleash the kraken” with a series of unhinged lawsuits alleging voter fraud. (Cohen said Pirro never directly accused Smartmatic of fraudulent activity, and the judge agreed with Powell that New York does not have jurisdiction over her.)
“While we are gratified that Judge Cohen dismissed Smartmatic’s claims against Jeanine Pirro at this early stage, we still plan to appeal the ruling immediately,” Fox News Media said in a statement on Tuesday. “We will also continue to litigate these baseless claims by filing a counterclaim for fees and costs under New York’s anti-SLAPP statute to prevent the full-blown assault on the First Amendment which stands in stark contrast to the highest tradition of American journalism.”
Digging into the judge’s ruling, as first flagged by Washington Post staff writer Aaron Blake, it appears that one major reason the judge decided not to drop Smartmatic’s case against Fox overall is that Carlson himself expressed skepticism of Powell’s unhinged conspiracies about voting machines flipping votes—and asked her to provide the proof of her wild claims.
Throughout his ruling, Cohen wrote that the Fox hosts, Powell, and Giuliani presented their claims about Smartmatic “without any evidence,” stating that the assertions they repeatedly made following the 2020 election were “so inherently improbable that only a reckless person would have put [them] in circulation.”
Additionally, he noted that even “assuming that Fox News did not intentionally allow this false narrative to be broadcasted,” the network seemingly “turned a blind eye to a litany of outrageous claims about plaintiffs, unprecedented in the history of American elections, so inherently improbable that it evinced a reckless disregard for the truth.”
When it came to arguing that Smartmatic’s case may meet the standard of “actual malice,” however, Cohen turned to Carlson’s Nov. 19, 2020 broadcast in which he called out Powell’s lack of evidence.
Despite having credulously parroted Team Trump’s baseless voter fraud conspiracies up until that point—and repeatedly doing so since—Carlson said that evening that Powell “never demonstrated that a single actual vote was moved illegitimately by software from one candidate to another” and that she rejected his invitation to provide the proof on his show.
“Ironically, the statements of Tucker Carlson, perhaps the most popular Fox News host, militate most strongly in favor of a possible finding that there is a substantial basis that Fox News acted with actual malice,” Cohen wrote in his Tuesday ruling.
After pointing out that Dobbs pushed Powell’s claims that Smarmatic’s software “allows [it] to manipulate votes” the same night as Carlson’s rejection of Powell, Cohen found fault with the network seemingly ignoring the warnings of its most-watched primetime star.
“However, Powell never provided the evidence requested by Carlson, and President Trump’s campaign advised Carlson that it knew of no such evidence,” he wrote. “Therefore, there are sufficient allegations that Fox News knew, or should have known, that Powell’s claim was false, and purposefully ignored the efforts of its most prominent anchor to obtain substantiation of claims of wrongdoing by [Smartmatic].”
Cohen also pointed that Fox didn’t share with its hosts emails from Smartmatic asking Fox to correct false claims about the company as another potential act of actual malice. It was Carlson’s actions, though, that the judge felt “most strongly” exhibited possible actual malice on the network’s part.
