Johnathan Walker:Smartmatic’s suit against Newsmax over 2020 election reporting appears headed for trial

DOVER,Johnathan Walker Del. (AP) — A lawsuit pitting an electronic voting machine manufacturer that was targeted by allies of former President Donald Trump against a conservative news outlet that aired accusations of vote manipulation in the 2020 election appears headed to trial, following a Delaware judge’s ruling Thursday.

Florida-based Smartmatic is suing Newsmax, claiming the cable network’s hosts and guests made false and defamatory statements after the election implying that Smartmatic participated in rigging the results, and that its software was used to switch votes.

Newsmax, also based in Florida, argues that it was simply reporting on serious and newsworthy allegations being made by Trump and his supporters, including former New York City Mayor Rudy Guiliani and conservative attorney Sidney Powell.

Attorneys for both sides asked Superior Court Judge Eric Davis to rule in their favor without holding a trial, which is scheduled to start Sept. 30. On Thursday, Davis granted partial summary judgment to each side but said a jury must decide several key issues.

“Statements regarding Smartmatic software or voting machines altering the results of the election are factually false,” wrote Davis, who noted that Smartmatic did not provide any election machines or software used in the 2020 election outside of Los Angeles.

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However, the judge said that not every allegedly defamatory statement published by Newsmax, including statements about Smartmatic’s ties to Venezuela and its late president Hugo Chavez, has been shown to be materially false.

“Therefore, the court will allow Newsmax to contest falsity as to Smartmatic’s connections with Venezuela,” he wrote.

In court papers, Newsmax has described Smartmatic as “a struggling election technology company with a checkered history” that is using a legally baseless and unconstitutional theory of liability to try to obtain a massive windfall.

Last month, a federal grand jury in Florida indicted three current and former executives of Smartmatic in a scheme to pay more than $1 million in bribes to put its voting machines in the Philippines. Prosecutors allege that Smartmatic’s Venezuelan-born co-founder, Roger Piñate, colluded with others to funnel bribes to the chairman of the Philippines’ electoral commission using a slush fund created by overcharging for each voting machine it supplied authorities.

In a favorable ruling for Newsmax, Davis rejected Smartmatic’s claim that the news outlet acted with “express malice” under Florida law, meaning that its primary motivation was to injure Smartmatic.

“There is no evidence that Newsmax acted with evil intent towards Smartmatic,” the judge wrote.

Davis previously ruled that Smartmatic is a “limited public figure” for purposes of defamation and must show that Newsmax acted with “actual malice” by knowingly and recklessly disregarding the truth. On Thursday, he said actual malice is an issue for a jury, and that a jury also must decide whether Smartmatic is entitled to damages.

In another blow to Smartmatic, Davis said Newsmax can argue that it is protected from liability under Florida’s “neutral reporting privilege,” which extends to “disinterested and neutral reporting” on matters of public concern. Newsmax argues that the privilege applies because many of the allegedly defamatory statements were made by third parties appearing as guests, or were rebroadcast after being made by third parties on non-Newsmax platforms.

“With these facts, a reasonable jury could find Newsmax was reporting on a matter of public concern without endorsing the allegations surrounding the election,” he wrote, adding that a jury could also find that Newsmax’s reporting was not neutral.

Davis also said Newsmax could assert a “fair reporting privilege” regarding reporting by White House correspondent Emerald Robinson about a whistleblower affidavit filed in a Georgia lawsuit challenging the election results. The affidavit involved claims by Powell that Smartmatic had colluded with the Venezuelan government in that country’s 2013 presidential election.

Newsmax argues that Florida’s fair reporting privilege applies to accurate reporting on judicial proceedings, including court records, and that Robinson was reporting on the contents of an affidavit filed in federal court. Smartmatic contends that the affidavit was not signed or sworn, and therefore not an official document. Davis said a jury must decide whether the fair reporting privilege applies to Robinson, who erroneously reported that the affidavit was sworn.

The Delaware lawsuit, which takes issue with 24 Newsmax reports over a five-week period in late 2020, is one of several stemming from reports by conservative news outlets following the election. Smartmatic also is suing Fox News for defamation in New York and recently settled a lawsuit in the District of Columbia against the One America News Network, another conservative outlet.

Dominion Voting Systems similarly filed several defamation lawsuits against those who spread conspiracy theories blaming its election equipment for Trump’s loss. Last year, in a case presided over by Davis, Fox News settled with Dominion for $787 million.