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A Delaware judge said that a jury will have to decide whether Newsmax engaged in actual malice against Smartmatic as the conservative news outlet amplified claims that the voting machine company helped rig the 2020 presidential election.
The ruling from Judge Eric M. Davis is just the latest in a series of lawsuits filed by Smartmatic and another election systems company, Dominion Voting Systems, over claims made by Newsmax, One America News Network and Fox News guests and personalities in the aftermath of the election.
Smartmatic sued Newsmax in November, 2021, claiming that as the network sought a larger audience, it published dozens of reports indicating that Smartmatic was in a “criminal conspiracy” to rig the results of the election, “and that its technology and software were used to switch votes from former President Trump to now President Biden.”
In his ruling, Davis wrote that “there remains a dispute as to whether Newsmax recklessly disregarded the truth. On one hand, Newsmax argues it was simply reporting matter on a public concern and it had no duty to conduct its own investigation. On the other hand, Smartmatic believes Newsmax reported the allegations knowing they were false.”
The judge added, “The jury must determine if Newsmax was doing what media organizations typically do—inform the public of newsworthy events—or did Newsmax purposely avoid the truth and defame Smartmatic.”
Davis also ruled that the “statements regarding Smartmatic software or voting machines altering the results of the Election are factually false. The reports and investigations conducted by multiple state and federal agencies since the Election universally come to the same result.”
Smartmatic did not provide any election machine software outside of Los Angeles during the cycle, Davis noted.
Among other things, the judge cited internal emails, including those from Newsmax host Bob Sellers and producer Jerry Burke.
“How long are we going to have to play along with election fraud?” Sellers wrote on Nov. 13, “So the election official, who did his job and is assuring Americans that their votes are valid, will get fired because Trump’s narrative is that there was widespread fraud, for which there is no evidence.”
A trial is scheduled to begin on Sept. 30.
In his ruling, the judge rejected Smartmatic’s claims that it was defamed by statements made on Newsmax about its prior history in Venezuela.
Davis wrote, “Smartmatic fails to explain how the statements concerning its history in Venezuela is materially false nor has Smartmatic proven it is false. Venezuelan government financing agencies invested over $200,000 into a smaller company owned by some of the same owners as Smartmatic. Scholarly studies conducted by Harvard University and Massachusetts Institute of Technology found the Venezuelan election was compromised.”
The judge added, “The statements regarding Smartmatic and its ties to Venezuelan are substantially true or present a triable issue of fact; and there has been reporting on the same in the United States as early as 2006 when Congresswoman Carolyn Maloney first raised concerns.”
In August, a federal grand jury in Florida indicted Smartmatic executives on allegations related to a bribery scheme in the Philippines.
Davis also ruled that the jury would have to decide whether Newsmax’s coverage of the aftermath of the election was protected by the neutral reporting privilege. He cited, among other things, a clip in which Newsmax personality Greg Kelly is interviewing Sidney Powell, one of the leading purveyors of the claim that the election was rigged.
“We have so much evidence I feel like it’s coming in through a firehose,” Powell said in one clip.
Kelly responded, “I believe her and I don’t believe the critics and the naysayers. Why? Because quite frankly, they don’t deserve credibility anymore.”
Davis wrote, “A jury could easily find that such a statement is not neutral or disinterested.”
The judge also rejected Smartmatic’s contention that Newsmax was guilty of “express malice,” where the primary intent of publishing the statement was to injure a plaintiff. Davis found that there “is no evidence that Newsmax acted with evil intent towards Smartmatic or that Newsmax’s proceeded with the intention to hurt Smartmatic. The record is devoid of facts showing that Newsmax harbored any evil or a motive arising from spite or ill as to Smartmatic.” He cited a November, 2020 email that Newsmax CEO Chris Ruddy sent to hosts and producers in which he “makes it clear to his staff that ‘Newsmax cannot project Biden the winner because Pres. Trump is contesting the election. . .’ and he believes ‘the President has a right to have a recount or review of these votes.'” Ruddy
Erik Connolly, Smartmatic’s lead trial attorney, said in a statement, “Today’s ruling vindicates our position. As we have said before, Newsmax’s own people knew they had no proof that Smartmatic was involved in any type of fraud involving the 2020 election, and yet they continued to peddle that false narrative. Newsmax must be held accountable to the fullest extent under law. We look forward to going to trial and presenting our case.”
Newsmax did not immediately have a comment.
Davis also presided over Dominion’s defamation lawsuit against Fox News. Just as the case was about to go to trial, the network settled the litigation for $787.5 million.
