It’s hard to believe, but in this lawsuit by Smartmatic voting machines against Fox News, Tucker Carlson’s alleged skepticism about voter fraud in November 2020 may be what dooms his employer:
It’s a pretty remarkable state of affairs when a judge is approvingly citing Tucker Carlson’s journalistic rigor, but that’s precisely the situation we find ourselves in now.
And rather ironically, that could be bad news for Fox News.
New York Supreme Court Judge David B. Cohen has now ruled that voting-machine company Smartmatic’s $2.7 billion defamation lawsuit against Fox News and Rudolph W. Giuliani can proceed. The case involved numerous false and baseless claims made on Fox about voter fraud involving the company’s voting machines.
In the ruling, the judge notably dropped Fox host Jeanine Pirro and former Trump lawyer Sidney Powell from the lawsuit — Pirro because her statements didn’t so directly accuse Smartmatic of illegality, and Powell because New York doesn’t have jurisdiction over her.
But the case against Fox, its other hosts and Giuliani can proceed. And in allowing it to, the judge previewed a tough road ahead for them in this monumental defamation case.
The ruling repeatedly says Fox hosts, Giuliani and Powell made claims “without any evidence” and “without any basis.” It also says that claims made by Giuliani, Fox host Maria Bartiromo and now-former Fox Business host Lou Dobbs could meet the legal standard of claims being “so inherently improbable that only a reckless person would have put [them] in circulation.”
“Even assuming that Fox News did not intentionally allow this false narrative to be broadcasted, there is a substantial basis for plaintiffs’ claim that, at a minimum, Fox News 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,” Cohen wrote.
“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. It called the lawsuit “baseless” and a “full-blown assault on the First Amendment which stands in stark contrast to the highest tradition of American journalism.”
But perhaps the ruling’s most biting — and also potentially legally important — section involves Carlson.
In the course of laying out the legal requirements for Smartmatic to prove its case, the judge noted that the company must prove Fox met the standard of acting with “actual malice” — i.e. not merely promoting false claims, but doing so with malice. And on that count, the judge says the best evidence that it did is Carlson.
That’s because Carlson, unlike the others, applied significant actual skepticism to the claims — and broadcast it.
It’s an episode many might have forgotten in the long and sordid run-up to the Jan. 6 insurrection on the U.S. Capitol. But there was a time in which none other than Carlson stepped forward to question the “stolen election” narrative that had taken hold in the Trump movement and in certain corners of his network. Carlson said on Nov. 19 that Powell’s claims were serious, but he also (rightfully) noted that she had yet to substantiate them. He said he had asked, over the course of a week, for the evidence and offered her his platform, but that she had declined.
Carlson said Powell “never demonstrated that a single actual vote was moved illegitimately by software from one candidate to another. Not one.” He said that when he invited her on his show, she became “angry and told us to stop contacting her.”
The episode alienated some Trump allies. But it also, in Cohen’s estimation, speaks to the possibility that Fox might meet the “actual malice” standard.
Of course there was actual malice. And no doubt Carlson was even more malicious than the others. But for some reason on that day, he didn’t go along with the party line and it may end up costing his company a whole lot of money.
Lest you think Tucker was fighting back against the Big Lie, he wasn’t. This is from the same week:
“You’ve heard a lot over the past few days about the security of our electronic voting machines, and this is a real issue no matter who raises it or who tries to dismiss it out of hand as a conspiracy theory. Electronic voting is not as secure as traditional hand counting, period. It never will be as secure,” Tucker said at the beginning of his opening monologue.
“The people now telling us to stop asking questions about voting machines are the same ones who claim that our phones weren’t listening to us,” he continued. “They lie.”
He added: “Going forward, we need to find out exactly what happened in this month’s presidential election. We need to find out, no matter how long it takes the investigation to unfold or how much it costs. And once we get answers from that investigation, we ought to revert immediately to the traditional system of voting — the one that served our democracy for hundreds of years. What we’re doing now is not working. That’s an understatement. As of tonight, the state of New York still hasn’t managed to count the votes in five house races thanks to mail-in voting. That’s a disaster, let’s stop pretending that it’s not.”
While Carlson tried to put up a facade of legitimacy by calling out former Trump attorney Sidney Powell last week, which resulted in backlash from his audience, he continues to embrace far-right conspiracies surrounding the election.
On Monday, he also outright accused the left of rigging the election by way of social media and claimed that Trump lost Pennsylvania because of a lack of presence from the NRA.
“Democrats used the coronavirus to change the system of voting. They vastly increased the number of mail-in ballots because they knew their candidates would benefit from less secure voting, and they were right,” he continued.
“They used the courts to neutralize the Republican party’s single most effective get-out-the-vote operation, which for generations had been the National Rifle Association. Not enough has been written about this, but anyone on the ground saw it. Thanks to legal harassment from the left, the NRA played a vastly reduced role in the election, and that made a huge difference in swing states like Pennsylvania and others.”
“But above all, Democrats harnessed the power of big tech to win this election. Virtually all news in the English speaking world travels through a single company: Google. A huge percentage of our political debates take place on Facebook and Twitter. If you use technology to censor the ideas that people are allowed to express online, ultimately you control how the population votes, and that’s exactly what they did. They rigged the election in front of all of us, and nobody did anything about it.”
He was all in.