Judge says Tucker Carlson’s past comments could hurt Fox News in $2.7bn Smartmatic defamation suit

A judge hearing a defamation lawsuit brought against Fox News by a voting software company has said the network’s case may suffer because one of its own hosts, Tucker Carlson, himself dismissed claims at the centre of the case.

In an opinion handed down in response to several motions to dismiss the lawsuit, New York State Supreme Court Judge David Cohen wrote that Smartmatic USA can continue pursuing its claims against the network and several of its hosts over the reporting of claims made by lawyer and conspiracy theorist Sidney Powell about the company’s systems.

He also wrote that “ironically, the statements of Tucker Carlson, perhaps the most popular Fox News host, militate most strongly in favour of a possible finding that there is a substantial basis that Fox News acted with actual malice” by airing claims that Smartmatic’s software was compromised, allowing the election to be stolen in Joe Biden’s favour.

As Judge Cohen puts it, even as network hosts including Lou Dobbs, Maria Bartiromo and others were still claiming that the company’s software played a role in the fictional “theft” of the election, Mr Carlson was reporting in writing and on air “that Powell never demonstrated that a single vote was flipped from President Trump to President Biden”.

As a result, he writes, “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.

Mr Carlson did indeed dismiss Ms Powell’s claims on air in a segment not long after the final 2020 election result was announced. Following up on a madcap news conference she held with Trump attorneys Rudy Giuliani and Jenna Ellis, Mr Carlson specifically addressed Ms Powell’s claims about compromised software.

“We invited Sidney Powell on the show,” Mr Carlson said in November 2020. “But she never sent us any evidence, despite a lot of requests, polite requests – not a page. When we kept pressing, she got angry and asked us to stop contacting her. When we checked with others around the Trump campaign, people in positions of authority, they told us Powell has never given them any evidence either. Nor did she provide any today at the press conference.

“Powell did say that electronic voting is dangerous, and she’s right, we’re with her there. But she never demonstrated that a single actual vote was moved illegitimately by software from one candidate to another. Not one.

“So why are we telling you this? We’re telling you this because it’s true. And in the end, that’s all that matters. The truth.”

Among the other hosts named in the suits are Jeanine Pirro, whose motion to dismiss the claim against her was granted, and Maria Bartiromo, the Fox Business host who regularly features live phone calls with Mr Trump on her show.

The judge denied Ms Bartiromo’s motion to dismiss, finding that Smartmatic’s lawyers “have adequately pleaded a substantial basis for their claim that Bartiromo acted with reckless disregard for the truth or falsity of the statements she made, and/or with a high degree of belief that said information was false”.

Also denied was a similar motion from Lou Dobbs, who shared some of Ms Powell’s claims about voter fraud on Twitter. The judge found against his claims that the claims he shared were “protected opinions”, writing that his claims “were statements of fact” that “clearly implied that he knew of certain other information, unknown to his audience, which supported what he said”.