DOVER, Del. (AP) 鈥� 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鈥檚 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,鈥� wrote Davis, who noted that Smartmatic did not provide any election machines or software used in the 2020 election outside of Los Angeles.
However, the judge said that not every allegedly defamatory statement published by Newsmax, including statements about Smartmatic鈥檚 ties to Venezuela and its late president Hugo Chavez, has been shown to be materially false.
鈥淭herefore, the court will allow Newsmax to contest falsity as to Smartmatic鈥檚 connections with Venezuela,鈥� he wrote.
In court papers, Newsmax has described Smartmatic as 鈥渁 struggling election technology company with a checkered history鈥� 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 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鈥檚 Venezuelan-born co-founder, Roger Pi帽ate, colluded with others to funnel bribes to the chairman of the Philippines鈥� 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鈥檚 claim that the news outlet acted with 鈥渆xpress malice鈥� under Florida law, meaning that its primary motivation was to injure Smartmatic.
鈥淭here is no evidence that Newsmax acted with evil intent towards Smartmatic,鈥� the judge wrote.
Davis previously ruled that Smartmatic is a 鈥渓imited public figure鈥� for purposes of defamation and must show that Newsmax acted with 鈥渁ctual malice鈥� 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鈥檚 鈥渘eutral reporting privilege," which extends to 鈥渄isinterested and neutral reporting鈥� 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.
鈥淲ith these facts, a reasonable jury could find Newsmax was reporting on a matter of public concern without endorsing the allegations surrounding the election,鈥� he wrote, adding that a jury could also find that Newsmax's reporting was not neutral.
Davis also said Newsmax could assert a 鈥渇air reporting privilege鈥� 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鈥檚 2013 presidential election.
Newsmax argues that Florida鈥檚 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 for defamation in New York and recently in the District of Columbia against the One America News Network, another conservative outlet.
Dominion Voting Systems similarly filed several defamation lawsuits against blaming its election equipment for Trump鈥檚 loss. Last year, in a case presided over by Davis, with Dominion for $787 million.
Randall Chase, The Associated Press
