Smartmatic USA Corp. v. Newsmax Media, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
SMARTMATIC USA CORP., )
SMARTMATIC INTERNATIONAL )
HOLDING B.V., and SGO )
CORPORATION LIMITED, )
)
Plaintiffs, )
) C.A. No.: N21C-11-028 EMD
v. )
)
NEWSMAX MEDIA, INC., )
)
Defendant.
)
Submitted: August 22, 2024
Decided: September 12, 2024
Upon Defendant’s Motion for Summary Judgment,
GRANTED in part and DENIED in part.
Upon Plaintiffs’ Motion for Summary Judgment,
GRANTED in part and DENIED in part.
Michael J. Barrie, Esquire, Kate Harmon, Esquire, Benesch, Friedlander, Coplan & Aronoff LLP,
Wilmington, Delaware; J. Erik Connolly, Esquire, Nicole Wrigley, Esquire, David D. Pope,
Esquire, William Walsh, Esquire, Lee B. Muench, Esquire, Lauran Tortorella, Esquire, Olivia
Sullivan, Esquire, Meghan Golden, Esquire, Benesch, Friedlander, Coplan & Aronoff LLP,
Chicago, Illinois. Attorneys for Plaintiffs Smartmatic USA Corp., Smartmatic International
Holding B.V., and SGO Corporation Limited.
C. Barr Flinn, Esquire, Kevin A. Guerke, Esquire, Timothy E. Lengkeek, Esquire, Lauren Dunkle
Fortunato, Esquire, Michael A. Laukaitis II, Esquire, Young Conaway Stargatt & Taylor LLP,
Wilmington, Delaware; Douglas D. Herrmann, Esquire, Troutman Pepper Hamilton Sanders
LLP, Wilmington, Delaware; Bennet J. Moskowitz, Esquire, Troutman Pepper Hamilton Sanders
LLP, New York, New York; Misha Tseytlin, Esquire, Troutman Pepper Hamilton Sanders LLP,
Chicago, Illinois; Howard M. Cooper, Esquire, Joseph M. Cacace, Esquire, Josh L. Launer,
Esquire, Maria A. Lombardi, Esquire, Todd & Weld LLP, Boston, Massachusetts. Attorneys for
Defendant Newsmax Media, Inc.
DAVIS, J.
I. INTRODUCTION
This is a civil action involving defamation claims. Plaintiffs Smartmatic USA Corp.,
Smartmatic International Holding B.V., and SGO Corporation Limited (collectively,
“Smartmatic”) allege Defendant Newsmax Media, Inc. (“Newsmax”) published false and
defamatory statements about Smartmatic relating to Smartmatic’s role in the 2020 United States
Presidential Election (the “Election”).
Specifically, Smartmatic alleges Newsmax published or republished “false statements and
implications during news broadcasts, in online reports, and on social media that Smartmatic
participated in a criminal conspiracy to fix, rig, and steal the 2020 U.S. election.”1 Smartmatic
maintains Newsmax’s statements constitute defamation per se because the statements charge
Smartmatic with a “serious crime and were of a nature tending to injure Smartmatic in its trade,
business, and profession.”2 Smartmatic seeks actual, consequential, special, and punitive
damages.3
On November 3, 2021, Smartmatic filed its Complaint.4 In February 2022, Newsmax
filed its Answer, affirmative defenses, and a Counterclaim.5 In June 2022, Newsmax filed a
motion for judgment on the pleadings under Civil Rule 12(c).6 The Court denied Newsmax’s
motion for judgment on the pleadings on February 3, 2023.7
1
Amended Complaint (hereinafter “Am. Compl.”) ¶ 432, March 28, 2023 (D.I. 177).
2
Id. ¶ 440.
3
Id. ¶¶ 446-7.
4
See D.I. 1.
5
See D.I. 59. Smartmatic filed its Answer to Newsmax’s Counterclaim in February 2022. See D.I. 60.
6
See D.I. 69, D.I. 70.
7
See Smartmatic USA Corp. v. Newsmax Media, Inc., 2023 WL 1525024 (Del. Super. Feb. 3, 2023).
2
On March 28, 2023, Smartmatic filed its First Amended Complaint (the “Amended
Complaint”).8 Newsmax moved to dismiss the Amended Complaint on April 28, 2023.9 The
Court issued a memorandum opinion, denying Newsmax’s motion to dismiss on August 23,
2023.10
On June 7, 2024, Newsmax filed its Motion for Summary Judgment (the “Newsmax
Motion”).11 On July 3, 2024, Smartmatic filed its brief in opposition to the Newsmax Motion.12
Smartmatic also filed a Motion for Summary Judgment (the “Smartmatic Motion”)13 Newsmax
filed its response in opposition to the Smartmatic Motion on July 3, 2024.14 Both parties
submitted their reply briefs in support of their respective motions for summary judgment on July
31, 2024.15 The Court heard oral arguments on the cross-motions for summary judgment on
August 22, 2024, at which time the matter was taken under advisement.16
For the reasons stated below, the Court GRANTS in part and DENIES in part the
Smartmatic Motion and GRANTS in part and DENIES in part the Newsmax Motion.
8
See Am. Compl.
9
See D.I. 226, D.I. 227.
10
See Smartmatic USA Corp. v. Newsmax Media, Inc., 2023 WL 5551026 (Del. Super. Aug. 23, 2023).
11
See Defendant's Opening Brief in Support of Its Rule 56 Motion for Summary Judgment (hereinafter “Newsmax
MSJ”) June 7, 2024 (D.I. 934).
12
See Smartmatic’s Brief in Opposition to Newsmax’s Rule 56 Motion for Summary Judgment (hereinafter
“Smartmatic Opp”) July 3, 2024 (D.I. 1041).
13
See Smartmatic's Opening Brief in Support of Motion for Summary Judgment (hereinafter “Smartmatic MSJ”)
June 7, 2024 (D.I. 933).
14
See Defendant's Response in Opposition to Plaintiffs' Brief in Support of Their Motion for Summary Judgment on
Liability (hereinafter “Newsmax Opp.”) July 3, 2024 (D.I. 1043).
15
See Reply Brief in Support of Smartmatic’s Motion for Summary Judgment on Liability (hereinafter “Smartmatic
Reply”) July 31, 2024 (D.I. 1115). See Defendant’s Reply Brief in Support of its Rule 56 Motion for Summary
Judgment on Liability (hereinafter “Newsmax Reply”) July 31, 2024 (D.I. 1116).
16
D.I. 1180.
3
II. RELEVANT FACTS
A. PARTIES
Plaintiff Smartmatic USA Corp. is an election technology and software company that
does business by entering into contracts with government entities all around the
world.17 Smartmatic USA Corp. is incorporated in Delaware and has its principal place of
business in Boca Raton, Florida.18 During the Election, Smartmatic USA Corp. only “provided
election technology and software” to Los Angeles County.19 Smartmatic USA Corp. “played no
part in the counting or tabulation of votes” in Los Angeles County.20
Plaintiff Smartmatic International Holding B.V. owns 100% of Smartmatic USA Corp.21
Smartmatic International Holding B.V. is incorporated in the Netherlands and has its principal
place of business in Amsterdam, Netherlands.22 Smartmatic International Holding B.V. “owns
multiple companies operating under the Smartmatic brand in almost two dozen
countries.”23 Smartmatic International Holding B.V. “did not play any role in the [Election]
outside of the technology and software provided by Smartmatic USA Corp. for Los Angeles
County.”24
Plaintiff SGO Corporation Limited owns 100% of Smartmatic International Holding
B.V.25 In other words, SGO Corporation Limited owns 100% of Smartmatic International
Holding B.V., which owns 100% of Smartmatic USA Corp.26 SGO Corporation Limited is
17
Am. Compl. ¶ 11.
18
Id.19
Id.20
Id. ¶ 12.
21
Id.
22
Id.
23
Id.
24
Id.
25
Id. ¶ 13.
26
Id.
4
incorporated in the United Kingdom and has its principal place of business in London, United
Kingdom.27 SGO Corporation Limited “did not play any role in the [Election] outside of the
technology and software provided by Smartmatic USA Corp. for Los Angeles County.”28
Defendant Newsmax provides media services through: (i) Newsmax news channels on
television; (ii) the news website Newsmax.com; (iii) mobile apps for smartphone devices; and
(iv) social media accounts, including the @newsmax X (formerly known as Twitter) handle and
a YouTube page.29 Newsmax is incorporated in the State of Delaware and has its principal place
of business in West Palm Beach, Florida.30
B. RELEVANT NON-PARTIES
1. Newsmax’s Executives
Christopher Ruddy, Chief Executive Officer of Newsmax, “served as the chief editorial
officer, setting the company’s editorial policies and strategies.”31 Mr. Ruddy “exercised final
editorial authority” within Newsmax.32 Elliot Jacobson, Chief Content Officer of Newsmax, was
primarily responsible for the “operations of Newsmax’s programming initiatives, including
managing all staff, managing talent, overseeing Newsmax’s production schedules and all of
Newsmax’s programming initiatives.”33 Gary Kanofsky, Newsmax’s News Director, “oversaw
daily news coverage strategy, journalist assignments and story selection.”34 Mr. Kanofsky also
collated the day’s news and facilitated daily morning meetings with Newsmax’s hosts and
producers.35
27
Id.
28
Id.
29
Id. ¶ 15.
30
Id.
31
Smartmatic MSJ at 68.
32
Id.
33
Id.
34
Id. at 69.
35
Id.
5
2. Newsmax’s Hosts and Producers
Bob Sellers and Heather Childers are the hosts of America Agenda, which is produced by
Jerry Burke.36 Christopher Salcedo hosts The Chris Salcedo Show, produced by Julian Atienza.37
Greg Kelly hosts Greg Kelly Reports.38 Christopher Knowles and Damon Plotnick are producers
of Greg Kelly Reports.39 John Bachman Now is hosted by John Bachman and produced by Erin
Parker and Chris Tamas.40 Shaun Kraisman and Emma Rechenberg host National Report, which
is produced by Amalia Cella.41 Grant Stinchfield is the host of Stinchfield and Cynthia Costas is
the producer.42 Robert Schmitt hosts Wake Up America.43 Emerald Robinson was a Newsmax
White House Correspondent.44
3. Peter Neffenger
Peter Neffenger is a board member and chair of the board with Smartmatic.45 Former-
President Obama nominated Mr. Neffenger to the Transportation Security Administration head
and the Senate confirmed Mr. Neffenger to that post.46 President Biden thereafter appointed Mr.
Neffenger to President Biden’s transition team, focusing on “general management issues within
[DHS] and immigration in particular.”47 Mr. Neffenger maintained that role with President
Biden’s team from September 2020 to January 2021.48
36
Newsmax Opp. at 105.
37
Id. at 107.
38
Id. at 108.
39
Id.
40
Id. at 109.
41
Id. at 111.
42
Id. at 114.
43
Id. at 115.
44
Id. at 116.
45
Newsmax MSJ. See Ex. 1 (hereinafter “Neffenger Dep.”).
46
Neffenger Dep. 26:11–15.
47
Id. at 27:6–11.
48
Id. at 27:12–16.
6
C. SMARTMATIC’S INITIAL HISTORY AS AN ELECTION TECHNOLOGY COMPANY
Smartmatic was founded in 2000 in Boca Raton, Florida.49 The two founders, Antonio
Mugica and Roger Piñate, both originally from Venezuela, serve as Smartmatic’s CEO and
President, respectively.50 Samira Saba serves as Smartmatic’s Director of Communications.51
Smartmatic began as a secure online set of protocols in the banking industry but shifted its focus
to election technology and software following the 2000 United States Presidential Election.52
Since 2003, “Smartmatic’s election technology has processed more than 5 billion secure votes
worldwide without a single security breach.”53
Currently, Smartmatic provides “end-to-end election services to local, state, and national
governments.”54 Smartmatic’s products include electronic voting machines, electronic counting
machines, ballot marking devices, voter management, poll worker support, online voting, and
election management platforms.55
In 2004, Venezuela used Smartmatic’s technology in the first automated election in
Venezuela, where the election was won by Hugo Chavez.56 This election caused a public
controversy.57 Some believed the election was fraudulent because seven months before
Smartmatic was awarded the 2004 Venezuelan election contract, a Venezuelan government
financing agency invested over $200,000 into a small technology company, owned by some of
the same people as Smartmatic.58 The Venezuelan government agency received a 28 percent
49
Am. Compl. ¶ 20.
50
Newsmax MSJ at 5.
51
Newsmax MSJ. Ex. 4 (hereinafter “Saba Dep.”) at 23:11–18.
52
Am. Compl. ¶¶ 20-1.
53
Id. ¶ 22.
54
Id. ¶ 24.
55
Id. ¶ 25; See also Newsmax MSJ at 7.
56
Am. Compl. ¶ 27.
57
See Saba Dep. at 23:4–24:25; 75:13–81:20; 199:5–215:17; 303:5–24.
58
Newsmax MSJ. Ex. 78.
7
stake in the smaller technology company for its investment and a seat on the board, which was
occupied by a former adviser to Mr. Chavez.59
The New York Times reported that concerns “about possible ties between the owners of
Smartmatic and the Chavez government have been well known to the United States foreign
policy officials since before the 2004 recall election in which Hugo Chavez, a strong ally of
President Fidel Castro of Cuba, won by an official margin of nearly 20 percent.”60
A professor at Harvard University’s John F. Kennedy School of Government and a
professor at the Massachusetts Institute of Technology Sloan School of Management, together,
conducted a scholarly study, finding statistical evidence that the 2004 Venezuelan election was
compromised.61 Mr. Mugica, in his affidavit, stated: “Elections conducted with Smartmatic
technology have been validated by world-renowned institutes such as the Carter Center, the
Organization of American States, and the European Union.”62 However, the scholarly study
published in May 2012, titled: In Search of the Black Swan: Analysis of the Statistical Evidence
of Electoral Fraud in Venezuela, addresses why the authors do not agree with the Carter Center’s
findings.63
On October 6, 2006, Congresswoman Carolyn Maloney (D-NY) wrote a letter expressing
national security concerns and asking the Committee on Foreign Investment in the United States
(“CFIUS”) to investigate Smartmatic and its association with the Venezuelan government. 64 In
December 2006, in response to the CFIUS investigation, Smartmatic announced it planned to sell
its U.S. subsidiary Sequoia Voting Systems, Inc.65 Congresswoman Maloney noted that
59
Id.
60
Id.
61
Id. at Ex. 76-78.
62
Smartmatic MSJ. Ex. 135 ¶ 34.
63
Newsmax MSJ, Ex. 76 p. 19.
64
Id. at Ex. 7.
65
Saba Dep. at 158:2–11.
8
Smartmatic decided to sell Sequoia, rather than complete the CFIUS investigation.66 Also, in
2006, “a Chicago alderman raised questions about potential ties between Sequoia and the
Venezuelan government when the company’s machines were used in the March 2006 Chicago
primaries and did not produce results for days.”67
After the 2008 U.S. President election, there were reports of miscounted votes in Cook
County, Illinois at the precinct that used the Sequoia equipment that Smartmatic delivered.68 “In
2010, Dominion Voting Systems Corporation (“Dominion”), a competitor of Smartmatic,
acquired Sequoia’s assets.”69
“Smartmatic continued to provide election technology and services in various Venezuelan
elections through July 2017.70 Smartmatic’s Venezuelan ties again drew international scrutiny
when the company provided technology and services for Venezuela’s elections for the creation of
the National Constituent Assembly on July 30, 2017.”71
D. SMARTMATIC’S HISTORY IN THE PHILIPPINES
In 2010, a Filipino publication reported Smartmatic failed to disclose “secret backdoors”
in its precinct count optical scanner (PCOS), which potentially allowed unauthorized control
over the system and vote manipulation.72 In March 2016, “a columnist at the Philippine Daily
Inquirer claimed that Smartmatic’s machines could be manipulated, and elections conducted by
the company could not be trusted.”73
66
Newsmax MSJ at 10.
67
Id. at 9. See also Saba Dep. at 161:6–167:11.
68
Id.
69
Newsmax MSJ at 10; see also Saba Dep. at 167:22–168:11.
70
Newsmax MSJ at 9.
71
Id.
72
Id. at 10
73
Id.
9
In 2017, “The Manila Times reported that three Smartmatic employees and employees of
the Republic of the Philippines Commission on Elections (“COMELEC”) had been charged with
changing the script in the transparency server on election night [in May 2016] without
authorization.”74 In 2019, Filipino President Rodrigo Duterte recommended that COMELEC
replace Smartmatic with a new technology provider due to concerns that Smartmatic’s system
was not accurately counting Filipinos’ votes.75
In August 2017, Smartmatic, its executives, and employees came under criminal scrutiny
in the Philippines.76 The Philippines’ National Bureau of Investigation’s Anti-Fraud Division
(“NBI”) began investigating an alleged bribery and “money-laundering scheme involving former
COMELEC Chairman Andres Donato Bautista, Smartmatic, and its executives.”77
The U.S. Department of Homeland Security’s Homeland Security Investigations (“HSI”),
thereafter, started its investigation into the same.78 On September 19, 2023, after the HSI
investigation, the Department of Justice filed a criminal complaint against Mr. Bautista in the
Southern District of Florida.79 Mr. Bautista was charged with “receiving a $4 million bribe as
part of a money laundering conspiracy to conceal a scheme involving four unnamed “Co-
Conspirators” and four unnamed companies in exchange for three lucrative contracts, worth
approximately $199 million, for voting machines and related election services in the Philippines
in 2015 and 2016.”80 During their depositions, Mr. Mugica and Mr. Piñate confirmed the
74
Id. at 11. See also Ex. 79.
75
Newsman MSJ at 11.
76
Id.
77
Id. See United States v. Bautista, No.1:23-mj-03829 (S.D. Fla. Sept. 19, 2023).
78
Id.
79
Id. at 12.
80
Id.
10
unnamed individuals are Smartmatic executives and employees and the unnamed companies are
Smartmatic entities.81
Smartmatic is also being investigated in the United Kingdom for the same alleged
misconduct related to the 2016 Philippines election.82
On November 29, 2023, because of the NBI investigation, COMELEC disqualified
Smartmatic from participating in the procurement process for the 2025 election in the
Philippines.83
E. Smartmatic’s Role in the 2020 Election
In 2018, Los Angeles County selected Smartmatic to aid in the manufacture and
implementation of a new election system in the County.84 Specifically, Los Angeles County has
a “Voting Solutions for All People” (“VSAP”) initiative, which is intended to ensure greater
voter participation through “convenient, accessible, and secure” voting options.85
Smartmatic and Los Angeles County entered into a contract whereby Smartmatic would
“manufacture (hardware and software) and implement new custom-designed [ballot marking
devices]” as part of the VSAP initiative.86 For the Election, Smartmatic provided the following
election services for Los Angeles County: “(1) engineered and manufactured the [ballot marking
device] hardware,” “(2) programmed and installed the [ballot marking device] software,” “(3) led
the California certification process,” “(4) created the backend software to manage the devices,”
“(5) provided systems integration services,” “(6) built the VSAP operations center,” “(7) handled
logistics and setup/breakdown of vote centers,” “(8) oversaw real-time data management for
81
Id. See Ex. 10 at 493:1‒6, 494:1‒5, 504:15–507:6, 507:10‒508:11, 509:3‒510:5.
82
Newsmax MSJ, Ex. 12.
83
Id. at Ex. 13.
84
Am. Compl. ¶ 46.
85
Id. ¶¶ 48-9.
86
Id. ¶ 51.
11
deployment,” and “(9) supplied Help Desk services on Election Day.”87 Smartmatic notes that
the Election in Los Angeles County, the largest voting jurisdiction in the United States, was
flawless from a technological perspective.88
Smartmatic did not play a role in the Election outside of Los Angeles County.89
Smartmatic’s “technology, software, equipment, and services” were not used outside of Los
Angeles County in the Election.90 Smartmatic did not license or contract “with any third party,
including other election technology companies [i.e., Dominion], for the use of Smartmatic’s
technology, software, machines or services” during the Election.91 Smartmatic played no role in
the states with close vote tallies, such as Nevada, Arizona, Georgia, Pennsylvania, Michigan, and
Wisconsin.92 “Apart from commenting on its role in the [Election] in Los Angeles County,
Smartmatic made no public comments about the [Election]” before Newsmax began reporting on
the Election.93
In March 2020, Politico reported on Los Angeles County’s use of Smartmatic’s
technology, and called it a “risky voting experiment.”94 Politico stated that Smartmatic’s
machines’ “security gaps, if left unfixed, could provide a gateway for a rogue election staffer or
someone else with physical access to alter software on the voting machines or their back-end
computer systems, possibly changing votes or otherwise disrupting the presidential race.”95 The
87
Id. ¶ 53.
88
See id. ¶¶ 57-8.
89
Am. Compl. ¶ 60.
90
Id.
91
Id.
92
Id. ¶ 61.
93
Id. ¶ 62.
94
Newsmax MSJ at 7. See Kim Zetter, Los Angeles County’s risky voting experiment (March 3, 2020)
https://www.politico.com/news/2020/03/03/los-angeles-county-voting-experiment-119157.
95
Id.
12
report also noted the Smartmatic’s questionable and controversial record, stating, “critics have
expressed concerns about the company that built the system, U.K. based Smartmatic.”96
F. POST ELECTION MEDIA COVERAGE
On November 6, 2020, President Biden won the Election; however, then-President Trump
stated that the election was far from over and filed multiple lawsuits challenging the Election
results.97 The lawsuits raised concerns with Dominion and Smartmatic’s voting equipment and
election technology and claimed to have evidence “that the companies facilitated voter fraud and
electronic vote manipulation in the election.”98 As discussed above, in 2009, Dominion entered
into “intellectual property licensing agreements” with Smartmatic and acquired Sequoia’s assets
in 2010 which were owned by Smartmatic.99
In November 2020, then-President Trump stated, on X, that Dominion’s machines are
“rigged,” Dominion deleted 2.7 million votes for Trump nationwide, and claimed he won the
election.100 At the same time, Sidney Powell used her X account to state, “Dominion Machines
[are] engineered by China, Venezuela, and Cuba.”101 On November 16, 2020, within two weeks
of the Election, The New York Times reported that then-President Trump had “posted over 300
tweets attacking the integrity of the vote count.”102 “RNC employees, the former Mayor of New
York City and U.S. Attorney for the Southern District of New York, a former General and
National Security Advisor, a former federal prosecutor, the former Governor of Arkansas, current
96
Id.
97
Newsmax MSJ at 15. Donald J. Trump for President, Inc. v. Hobbs, No.CV2020-14248 (Ariz. Sup. Ct. Nov. 7,
2020); Donald J. Trump for President, Inc. v. Benson, No.1:20-cv-1083 (W.D. Mich. Nov. 11, 2020); Wood v.
Raffensperger, No.1:20-cv-4651 (N.D. Ga. Nov. 17, 2020); Pearson v. Kemp, No.1:20-cv-4809 (N.D. Ga. Nov 25,
2020); Feehan v. Wisconsin Elections Commission, No.2:20-cv-1771 (E.D. Wis. Dec. 1, 2020).
98
Newsmax MSJ at 16.
99
Id. See also Smartmatic Int'l Corp. v. Dominion Voting Sys. Int'l Corp., 2013 WL 1821608, at *1 (Del. Ch. May 1,
2013).
100
Newsmax MSJ at 16.
101
Id. at 17.
102
Id.
13
and former members of Congress, then-President Trump, his legal team, representatives, people
claiming an affiliation with then-President Trump and other affiliates” (collectively, “Trump
Affiliates”) “publicly claimed that the 2020 Election was manipulated through the exploitation of
election technology supplied by several government contractors; Smartmatic being one of
them.”103
Lin Wood, an attorney and Trump Affiliate, initiated a lawsuit in Georgia, “aiming to
overturn the election results.”104 With this lawsuit, a former security guard for Mr. Chavez
submitted an affidavit stating he assisted Mr. Chavez in manipulating elections using Smartmatic
machines and claiming that: “the software and fundamental design of the Dominion electronic
electoral system and its software are based on software that is a derivative of the Smartmatic
Electoral Management System.”105
Ms. Powell and Mr. Wood, together, filed another lawsuit in Georgia, that cited to an
affidavit from a witness who claimed that “Smartmatic and Dominion were founded by foreign
oligarchs and dictators” to manipulate votes and ensure that “Venezuelan dictator Hugo Chávez
never lost another election.”106
These allegations drew the attention of many of the nation’s major news organizations,
including Fox News, CNN, and The New York Times.107
G. NEWSMAX’S REPORTING ON THE ELECTION
From July 2020 to the week before the Election, Newsmax “averaged 58,000 viewers
from 7 to 10 p.m. on weekdays.”108 At that time, Newsmax’s numbers were not comparable to
103
Id.
104
Id. at 18.
105
Id; See Wood, No.1:20-cv-4651.
106
Newsmax MSJ at 19; Pearson, No 1:20-cv-4809.
107
Newsmax MSJ at 20.
108
Am. Compl. ¶ 75, Ex. 146.
14
Fox News’ massive following.109 The week after the Election, Newsmax’s ratings jumped ten-
fold from its pre-Election numbers.110 In the wake of the Election, Newsmax called attention to
the fact that then-President Trump posted Newsmax clips to his followers on X.111 Within three
days of the Election, Newsmax’s viewership surpassed Fox Business and CNBC.112 These
increases in coverage led to more viewers and more money for Newsmax.113 Newsmax
“averaged approximately 242,000 prime-time viewers in the fourth quarter of 2020.”114
Smartmatic states Newsmax engaged “in publishing false information about Smartmatic
during the disinformation campaign, but it also did so with ill-will and improper motives for self-
preservation, self-promotion, and financial and other gains.”115 Specifically, Smartmatic alleges
Newsmax “did not mind destroying Smartmatic’s reputation because it served its financial
interests,” and “this was not about providing fair and neutral reporting of a debate .”116
Smartmatic also maintains “this was about trying to beat Fox News, endearing itself to the
millions of Americans who supported President Trump, and making money.”117
Starting on November 10, 2020, through December 2020, Newsmax aired statements
from Trump Affiliates and published multiple articles on its website concerning the controversy
surrounding the Election.118 Newsmax’s published articles discussed “the skepticism expressed
by federal judges regarding” the lawsuits filed by Trump Affiliates; “views of the secretaries of
state, attorneys general, and senators. . . who stated that there was no evidence of widespread
109
Id. ¶ 75.
110
Id. ¶ 76. Newsmax’s daytime viewership also increased by a multiple of ten, and the number of daily active users
on its mobile app increased fourteen-fold from pre- to post-Election. Id. ¶ 76, Exs. 146, 148.
111
Id. ¶ 77, Ex. 150.
112
Id. ¶ 78, Ex. 151.
113
Id. ¶ 78.
114
Newsmax MSJ at 20.
115
Am. Compl. ¶ 412.
116
. Id. ¶ 230.
117
Id.
118
Newsmax MSJ at 23.
15
voter fraud;” and the difficulties then-President Trump “would encounter in overturning the
[Election] results.”119
On December 11, 2020, Newsmax received a letter from Smartmatic’s counsel
demanding a retraction of allegedly defamatory reporting contained in Newsmax’s coverage of
the Election.120 Newsmax responded by issuing a public clarification titled “Facts About
Dominion, Smartmatic You Should Know” and explaining: “No evidence has been offered that
Dominion or Smartmatic used software or reprogrammed software that manipulated votes in the
2020 election.”121 Newsmax’s statement also stated that it had “not reported as true certain
claims made about these companies,” and informed its audience that Newsmax has no evidence
that: “(1) either Dominion or Smartmatic owns the other, or has any business association with
each other; (2) Dominion uses Smartmatic software or vice versa; (3) Dominion or Smartmatic
used software that manipulated votes in the 2020 Election; or (4) George Soros or Hugo Chávez
owned Smartmatic.”122
On December 21, 2020, Newsmax extended an invite for a Smartmatic representative to
appear on a Newsmax broadcast and address on air anything Smartmatic considered to be
inaccurate.123 Smartmatic did not respond to the written invitation, or the follow-up calls from
Newsmax’s counsel.124
On October 27, 2021, Smartmatic provided Newsmax “a list of defamatory statements
about Smartmatic that were broadcast and published by Newsmax” and demanded Newsmax
119
Id. at 23-4.
120
Am. Compl. ¶ 238.
121
Newsmax MSJ at 25.
122
Id. at 26.
123
Id. at 26. Ex. 24.
124
Id.
16
“fully and completely retract these defamatory statements.”125 Subsequently, Smartmatic filed
this action.
The Amended Complaint alleges Newsmax’s “disinformation” about Smartmatic focused
on the following themes:
Smartmatic’s election technology and software were widely used in the 2020 U.S.
election;
Smartmatic fixed, rigged, and stole 2020 U.S. election for Joe Biden and Kamala
Harris;
Smartmatic’s election technology and software (1) were compromised or hacked
during the 2020 U.S. election and (2) sent votes overseas to be compromised or
hacked;
Smartmatic was founded and funded by corrupt dictators from socialist and
communist countries; and
Smartmatic’s election technology and software were designed to and have fixed,
rigged, and stolen elections before.126
On the other hand, Newsmax categorized the statements as allegedly defamatory
statements made either by third parties unaffiliated with Newsmax or by Newsmax personnel.127
The allegedly defamatory statements made by third parties include allegations or suggestions
that: (1) “Smartmatic was either influenced by foreign entities or had foreign origins;” (2)
Smartmatic’s software was problematic; and (3) Mr. Neffenger was connected to President
Biden’s team.128
In the Smartmatic Motion, Smartmatic refers to twenty-four publications that were
allegedly defamatory (the “At-Issue Statements”). Smartmatic is moving for summary judgment
125
Am. Compl. at Ex. 55.
126
Id. ¶ 173.
127
Newsmax MSJ at 29.
128
Id. at 28-30.
17
only as to the At-Issue Statements. Newsmax, in the Newsmax Motion, is moving for summary
judgment on all claims asserted in the Amended Complaint.
H. NEWSMAX’S INTERNAL COMMUNICATION
On November 12, 2020, Mr. Ruddy drafted an email (the “November Email”)—
circulated to Newsmax’s hosts and producers by Mr. Jacobson—explaining Newsmax’s editorial
position and the lack of evidence supporting voter fraud allegations, stating:
Newsmax's Editorial Position:
We are not calling the election for Joe Biden because we believe that the voters and
state election authorities should make that decision, not media organizations.
Media organizations that so clearly were wrong in their polls which showed a
landslide election for Joe Biden should not be the arbiters of the election results.
Newsmax cannot project Biden the winner because Pres. Trump is contesting the
election in several states, including races where the vote difference is less than 1
percent. In Georgia it is less than a quarter of a percent. We believe the President
has a right to have a recount or review of these votes.
In the 2000 election when AI Gore contested the Fla results, media organizations
withheld a projection on the winner until mid-December.
We believe most states will certify by Nov. 23rd. Based on state certifications of
closely contested races, Newsmax will call the race for the winner.
Vote fraud:
Newsmax does not have evidence of widespread voter fraud. We have no evidence
of a voter fraud conspiracy nor do we make such claims on Newsmax.
We have reported on significant evidence of widespread election irregularities and
vote fraud. We will continue to report on that.
We believe we should not censor allegations made by the President or his lawyers
or surrogates. Our job is not to filter the news but report information and allow
Americans to decide.
The President has made several legal challenges to results in several states, we will
continue to report on these.
18
Newsmax will fully accept and acknowledge the President elect as decided by the
electoral college. We will encourage a smooth transition of power from one term to
the next, whoever the winner is.
When discussing voter/election fraud continue to use terms such as "alleged" and
avoid any appearance of endorsement of conspiracy theories etc. 129
On November 12, 2020, Mr. Kanofsky sent Newsmax’s producers and hosts a fact sheet
that Newsmax received from Dominion titled Setting the Record Straight (“Dominion Fact
Sheet”), which stated, in relevant part:
First and foremost, Dominion Voting Systems categorically denies any claims about
any vote switching or alleged software issues with our voting systems. Dominion
systems continue to reliably and accurately count ballots, and state and local
election authorities have publicly confirmed the integrity of the process.
This year, despite the fact that voting has proceeded smoothly in all 28 states where
our systems are used, close vote counts in several battleground states coupled with
delayed results reporting have created the opportunity for a number of company-
focused rumor and disinformation campaigns to spread online.
No credible reports or evidence of any software issues exist. While no election is
without isolated issues, Dominion Voting Systems are reliably and accurately
counting ballots. State and local election authorities have publicly confirmed the
integrity of the process.
All U.S. voting systems must provide assurance that they work accurately and
reliably as intended under federal U.S. Election Assistance Commission and state
certification and testing requirements. Election safeguards – from testing and
certification of voting systems, to canvassing and auditing – prevent malicious
actors from tampering with vote counts and ensure that final vote tallies are
accurate.130
On November 19, 2020, Mr. Kanofsky emailed Newsmax’s producers and hosts a fact sheet
that Newsmax received from Smartmatic titled Smartmatic Fact-checked (“Smartmatic Fact
Sheet”), which stated, in relevant part:
Over the last two decades, Smartmatic has registered and counted nearly 5 billion
auditable votes without a single spoiled vote or security breach.
129
Smartmatic MSJ at 43. Ex. 154 (emphasis added) (D.I. 921).
130
Smartmatic MSJ at 43-4. Ex. 155 (D.I. 921).
19
Smartmatic designed its technology to enable all election stakeholders to audit the
entire process.
Smartmatic software has been open to audits by all political parties in all countries
where it operates. All audits of elections that have used Smartmatic technology
have validated the accuracy of the results, confirming the integrity of the election.
Elections conducted with Smartmatic technology have been validated by world-
renowned institutions such as the Carter Center, the United Nations, the
Organization of American States, and the European Union. All claims about the
integrity of the system or the accuracy of the results have been dismissed.
Smartmatic has no ties to governments or political parties of any country.131
The Smartmatic Fact Sheet also included the following question and answers:
Who owns Smartmatic? Smartmatic was founded in Boca Raton, Florida in 2000.
Two of the founders, Antonio Mugica and Roger Piñate, continue to run the
company as CEO and President, respectively. The majority of shares (83%) are held
by SGO, a company owned by the Mugica and Piñate families. The remaining
shares are held by employees (10%) and angel investors (7%).
Is Smartmatic a Venezuelan company? No. Smartmatic was founded and
incorporated in the U.S. It is now headquartered in London, UK.
Does Smartmatic own any other voting machine company? No.
Has Smartmatic owned any voting machine company in the USA? Smartmatic
owned Sequoia Voting systems and sold it in 2007.
Is Smartmatic’s software used in other company’s voting machines? No.
Smartmatic’s software is not licensed or otherwise used by other companies.
Where were Smartmatic products used during the 2020 US election? Smartmatic
technology was only used in Los Angeles County, CA. It was not used anywhere
else.
On December 19, 2020, Newsmax published an article titled Facts About Dominion,
Smartmatic You Should Know (the “December Article”), explaining:
Newsmax has found no evidence either Dominion or Smartmatic owns the other,
or has any business association with each other.
We have no evidence Dominion uses Smartmatic’s software or vice versa.
131
Smartmatic MSJ at 45-6. Ex. 162 (D.I. 928).
20
No evidence has been offered that Dominion or Smartmatic used software or
reprogrammed software that manipulated votes in the 2020 election.
Smartmatic has stated its software was only used in the 2020 election in Los
Angeles, and was not used in any battleground state contested by the Trump
campaign and Newsmax has no evidence to the contrary.
Smartmatic is a U.S. company and not owned by the Venezuelan government, Hugo
Chavez or any foreign official or entity.
Smartmatic states it has no operations in Venezuela. While the company did
election projects in Venezuela from 2004 to 2017, it states it never was founded by
Hugo Chavez, nor did it have a corrupt relationship with him or the Venezuelan
government.132
During this time, Mr. Sellers (host) and Mr. Burke (producer) had the following
conversation thread (the “Sellers/Burke Conversation”), questioning the Election reporting:
November 9: Sellers: “How long are we going to have to play along with election
fraud?”
November 9: Sellers: “Trump’s MO is always to play victim [] And answer this
question. Is there anything at all that could result in another election? The answer
is no. and are there enough votes that could be switched or thrown out from fraud
or irregularities? No.”
November 13: Sellers: “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.”
December 11: Sellers: “But I feel good that we can start slamming Biden instead of
defending crazy []”
December 16: Sellers: “Yes. The election was stolen. Trump gets to stay. [] Same
in Pa. same in Michigan. Same in AZ. [] Of course, all of the down ballot tickets
must be wrong too. [] So the dozen Republicans who won don’t get to go.” Childers:
“Geez–I get it. Good night everyone.” Sellers: “This is just the way Jerry and I
talk.” Childers: “Got it.” Sellers: “It’s all fodder for good TV. [] Which is what we
do.”
132
Smartmatic MSJ at 47.
21
December 17: Sellers: “I’m a little uncomfortable with how much [Heather] is
trying to promote these conspiracy theories [] We should let the guests do it[.]”
Burke: “absolutely [] just one more day to go[.]”133
I. THE ELECTION INVESTIGATION
While former-President Trump’s affiliates were making statements questioning the
integrity of the Election, several federal and state agencies addressed and denied the
allegations.134
On November 12, 2020, the Elections Infrastructure Government Coordinating Council
and Election Infrastructure Sector Coordinating Executive Committees, jointly, announced that
the Election was “the most secure in American history” and there was no evidence of voting
systems changing, deleting, or losing votes.135 On November 13, 2020, the Commissioner for
the U.S. Election Assistance Commission announced that there was “no widespread fraud or
malfunction” that would change the results of the Election.136 On November 16, 2020, many
election security and computer science experts stated they are aware of the allegation concerning
the Election, however, the allegations are “unsubstantiated or technically incoherent.”137 On
December 1, 2020, U.S. Attorney General William Barr announced that upon its investigation,
the Department of Justice found no “fraud on a scale that could have effected a different outcome
in the election.”138
On December 22, 2022, The Select Committee to Investigate the January 6th Attack on
the United States Capital conducted an 18-month investigation that concluded: “Not a single
witness— nor any combination of witnesses—provided the Select Committee with evidence
133
Id 86-7.
134
Id. at 58-9.
135
Id. Ex. 188.
136
Id. Ex. 190.
137
Id. Ex. 191.
138
Id. Ex. 193.
22
demonstrating that fraud occurred on a scale even remotely close to changing the outcome in any
State.”139
To date, there are no investigations or reports that concluded the Election was
compromised or that Smartmatic or Dominion manipulated the votes through its voting
machines.140
III. PARTIES’ CONTENTIONS
A. THE NEWSMAX MOTION
1. Newsmax
Newsmax argues that both Florida law141 and the First Amendment of the United States
Constitution protect media organizations, such as Newsmax, when the organization engages in
neutral reporting on a matter of public concern.142 Newsmax contends that even putting the
neutral reporting protection aside, some of the alleged defamatory allegations were true.143
Newsmax also argues that, under Florida law, Smartmatic must show evidence of actual damages
caused by Newsmax’s reporting. Newsmax maintains that Smartmatic has produced no evidence
of any actual damages.144 And even if the Court finds Newsmax liable for damages, Newsmax
asserts that Smartmatic’s damages claim would still fail because Smartmatic’s customers are
government officials who are prevented from allowing media reports to affect contractual
relationships per public procurement rules.145
139
Id. Ex. 197 at 47.
140
Smartmatic MSJ at 60.
141
On May 21, 2024, the Court issued a preliminary order holding that Florida substantive law will apply in this
civil action (D.I. 745).
142
Newsmax MSJ at 48.
143
Id. at 61.
144
Id. at 83.
145
Id. at 95.
23
Newsmax also argues that the alleged defamatory statements are not actionable as
defamation because they are not “of and concerning” Smartmatic.146 Newsmax asserts that
Smartmatic has not presented evidence to prove the falsity element of its defamation claim.147
Newsmax claims that Smartmatic is a limited public figure, therefore, Smartmatic must show
actual malice which Smartmatic cannot do.148 As a result, Newsmax argues Smartmatic also
cannot recover punitive damages under Florida law.149
Finally, Newsmax contends that Smartmatic failed to serve a pre-suit notice—as required
by Florida law—on Newsmax specifying all the allegedly defamatory statements in the Amended
Complaint so the same should be dismissed.150 That said, Newsmax maintains it exercised its
constitutional right of free speech in connection with a public issue, so the Florida anti-SLAPP
statute applies to this action.151
2. Smartmatic
Smartmatic, in opposition, contends that Florida law does not recognize an absolute
privilege and Newsmax, a media organization, “should be held responsible for the publication of
false reports when done with the requisite fault (negligence or actual malice).”152 Smartmatic
goes on to argue that, even if there was a neutral reporting privilege under Florida law,
Newsmax’s reporting was not neutral nor disinterested.153 Smartmatic maintains that the
evidence now demonstrates Smartmatic is not a limited purpose public figure under Florida law,
so Smartmatic only has to show that Newsmax was negligent in its reporting.154 Smartmatic also
146
Id.
147
Id. at 61.
148
Id. at 66-7.
149
Id. at 120.
150
Id. at 125.
151
Id. at 127.
152
Smartmatic Opp. at 2.
153
Id. at 28.
154
Id. at 12.
24
maintains that it has properly established every element of defamation, including “of and
concern” and “falsity.”155
Furthermore, Smartmatic believes it is entitled to presumed damages as the alleged
defamatory statements qualify as defamation per se published with actual malice.156 Smartmatic
argues that presumed damages “have long served the critical public policy of allowing the
plaintiff to vindicate its name” and should be allowed under Florida law or Delaware public
policy.157 Smartmatic explains how Smartmatic’s expert reports are sufficient evidence to
establish Newsmax’s reporting harmed Smartmatic’s reputation and caused economic losses. As
such, Smartmatic is entitled to general and special damages.158 Smartmatic also argues that it
provided evidence of actual malice and express malice, therefore punitive damages is a factual
matter for the jury to decide.159
With that, Smartmatic believes the Court should rule one of the three following ways: (i)
Florida does not recognize a neutral reporting privilege; (ii) actual malice negates any privilege;
or (iii) the At-Issue Statements were not neutral and disinterested, so privilege does not apply.160
All three options would require the Court to reject Newsmax’s privilege defense.161
B. THE SMARTMATIC MOTION
1. Smartmatic
Smartmatic believes it has satisfied its burden for summary judgment because Mr. Ruddy
wrote to Newsmax’s executives stating that, “Newsmax does not have the evidence of
155
Id. at 38-40.
156
Id. at 50. “It would violate 100 years of jurisprudence to deprive a plaintiff of presumed damages for defamation
per se published with actual malice.” Id.
157
Smartmatic Opp. at 52, 61.
158
Id. at 63, 98.
159
Id. at 114.
160
Id. at 33-4.
161
Id.
25
widespread voter fraud” and “no evidence of voter fraud conspiracy.”162 Smartmatic asserts it is
entitled to summary judgment on liability for the At-Issue Statements that Newsmax published
between November 10, 2020, and December 18, 2020.163 Smartmatic believes that the Court
should allow a jury to determine damages only.164 Smartmatic contends that each At-Issue
Statement satisfies the elements of defamation including the “of and concerning” element” as the
publications falsely stated or implied that Smartmatic participated “in rigging the 2020
election.”165
Smartmatic also argues it is entitled to summary judgment on actual malice because
Newsmax’s executives, hosts and producers acted with reckless disregard for the truth.166
Smartmatic contends that Newsmax “possessed accurate information debunking what it stated
and implied about Smartmatic,” but Newsmax still purposefully avoided investigating its claims
and did not evaluate the third-party guests.167
2. Newsmax
Newsmax opposes, contending Smartmatic is moving for summary judgment on liability
by “attempting to side-step Florida law’s unequivocal requirements for establishing liability and
damages in defamation actions.”168 Specifically, Newsmax argues: (i) “Smartmatic tries to evade
Florida’s mandate that allegedly defamatory material is subject to a statement-by-statement
analysis with proper context considered.” (ii) Smartmatic “dilute[s]” the actual malice standard
under Florida and First Amendment law; (iii) Smartmatic misstates Florida’s law on neutral
reporting and fair reporting privileges; and (iv) Smartmatic “ignores that Florida law’s special
162
Smartmatic MSJ at 1.
163
Id. at 2.
164
Id. at 4-6.
165
Id. at 53.
166
Id. at 68, 84.
167
Id. at 118.
168
Newsmax Opp. at 1.
26
treatment of media defendants requires proof of actual damages and causation even in
defamation per se cases.”169
IV. STANDARD OF REVIEW
Civil Rule 56 governs motions for summary judgment.170 “The Court will grant
summary judgment if, after viewing the record in a light most favorable to the non-moving party,
no genuine issues of material fact exist and the movant is entitled to judgment as a matter of
law.”171 On a motion for summary judgment, the Court “(i) construes the record in the light most
favorable to the non-moving party; (ii) detects, but does not decide, genuine issues of material
fact; and (iii) denies the motion if a material fact is in dispute.”172 The moving party bears the
initial burden of showing the motion is supported by the undisputed facts.173 If the moving party
carries its burden, then the burden shifts to the non-moving party to show a genuine issue of
material fact exists, and that a trial is necessary.174 If the Court concludes a more thorough
inquiry into, or development of, the record would clarify the law or its application, the Court
may deny summary judgment. 175
V. DISCUSSION
A. SMARTMATIC IS A LIMITED PURPOSE PUBLIC FIGURE
Under Florida law, courts employ a two-step analysis to determine whether a plaintiff is a
limited purpose public figure.176 Step one is whether there is a “public controversy,” meaning
169
Id. at 2-4.
170
Super. Ct. Civ. R. 56.
171
CVR Refining., LP v. XL Specialty Ins. Co., 2021 WL 5492671, at *8 (Del. Super. Nov. 23, 2021) (citing Merrill
v. Crothall-Am., Inc., 606 A.2d 96, 99-100 (Del. 1992)); Del. Super. Ct. Civ. R. 56.
172
CVR Refin., LP, 2021 WL 5492671, at *8 (citing Judah v. Del. Tr. Co., 378 A.2d 624, 632 (Del. 1977); Merrill,
606 A.2d at 99; Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962)).
173
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
174
Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
175
See Alexander Indus., Inc. v. Hill, 211 A.2d 917, 918-19 (Del. 1965).
176
See Mile Marker, Inc. v. Petersen Publ’g, L.L.C., 811 So. 2d 841, 845 (Fla. Dist. Ct. App. 2002).
27
whether a “reasonable person would have expected persons beyond the immediate participants in
the dispute to feel the impact of its resolution.”177 Step two is “whether the plaintiff played a
sufficiently central role in the instant controversy to be considered a limited purpose public
figure for the purposes of that controversy.”178 Whether a plaintiff is a public figure is a question
of law.179
Newsmax maintains Smartmatic is a limited purpose public figure under Florida law
because the allegedly defamatory statements were on matter of public concern and Smartmatic
has played a sufficiently central role in this controversy.180 Newsmax also argues that the Court
previously ruled, under Florida law, Smartmatic is a limited purpose public figure, and that
ruling is law of the case.181
Smartmatic believes the Court “assumed that Smartmatic played a sufficient central role
in the controversy” but now the evidence demonstrates that Smartmatic is not a limited purpose
public figure.182 Specifically, Smartmatic argues that Smartmatic could not have played a
sufficiently central role to the 2020 Election controversy because: (i) only Los Angeles County
used Smartmatic’s services; (ii) the 2020 Election controversy “had nothing to do with the role
that Smartmatic actually played. . .”; (iii) Smartmatic could not have been a part of the public
controversy because Smartmatic did not provide voting machines; and (iv) Smartmatic “did
nothing to thrust itself into the public controversy about the 2020 election.”183
Based on the facts available to the Court during the motion for judgment on the pleadings
stage, the Court found:
177
Id. (citing Gertz, 418 U.S. at 323).
178
Id. at 846 (citing Gertz, 418 U.S. at 345).
179
Michel v. NYP Holdings, Inc., 816 F.3d 686, 702 (11th Cir. 2016).
180
Newsmax MSJ at 69-70.
181
Id. at 68.
182
Smartmatic Opp. at 12.
183
Id. at 12-4.
28
Under Florida law, Smartmatic is a limited purpose public figure. Step one—the
“public controversy” step—is satisfied. In Mile Marker, Inc. v. Petersen Publ'g,
L.L.C., the Florida District Court of Appeal found the plaintiff to be a limited
purpose public figure. The plaintiff manufactured hydraulic winches, which are
employed by “off-road enthusiasts for hauling stranded motor vehicles.” The
defendant published an article about the plaintiff in its magazine. The Florida court
found the plaintiff to be a limited purpose public figure because there was a “pre-
existing public controversy in a segment of the population” regarding hydraulic
winches versus electric winches, and off-road magazine readers would be
“impacted by the resolution of the instant dispute.” Similarly, here, there was a
“pre-existing public controversy in a segment of the population” regarding the
accuracy and integrity of the Election, including its voting software. Moreover, this
segment of the population could be “impacted by the resolution” of this litigation.
Step two is met because Smartmatic “played a sufficiently central role” in this
instant controversy as part of the VSAP initiative in Los Angeles County, the largest
voting jurisdiction in the United States.184
The Court continues to find that Smartmatic is a limited purpose public figure as the
facts, as developed, in this case do not support a different finding. Moreover, the Court does not
need to reanalyze step one to determine if this is a “public controversy” because the parties agree
that the Election was a matter of public concern. 185
For purposes of step two, the circumstances surrounding Smartmatic were subject to
substantial public debate even before the 2020 Election.186 In 2006, Congresswoman Maloney
requested that the Committee on Foreign Investment in the United States investigate
Smartmatic’s connection to Venezuela and Mr. Chavez.187 In 2008, there were reports of
miscounted votes in an Illinois precinct that used Sequoia equipment.188 In 2019, Philippines
President Duterte recommended replacing Smartmatic because he had concerns about
Smartmatic’s technology.189 In March 2020, Politico reported on Smartmatic’s reputation and
184
Smartmatic USA Corp., 2023 WL 1525025, at * 13.
185
See Smartmatic Opp. at 9.
186
See Thomas v. Patton, 2005 WL 3048033, at *2 (Fla. Cir. Ct. Oct. 21, 2005), aff'd and remanded, 939 So. 2d 139(Fla. Dist. Ct. App. 2006).
187
Newsmax MSJ at 6.
188
Id.189
Id.29
discussed issues with Smartmatic voting machines.190 Thus, Smartmatic “could have, and should
have, realistically expected” that their involvement in the 2020 Election would have an impact
on a national public controversy.191
In determining whether a plaintiff is a limited purpose public figure, Florida courts also
consider the level of media access available to the plaintiff.192 Courts should also examine the
“nature and extent of the advertising and publicity campaigns” in the past and pay attention to
the marketing strategy that emphasizes the controversy.193
Based on the record and Florida case law, Smartmatic is a limited purpose public figure.
Smartmatic had access to the media, including access to Newsmax; Newsmax invited
Smartmatic to come on air to inform Newsmax viewers that the statements were false and tell its
side of the story. Smartmatic chose not to accept the invitation. Smartmatic believes it is a
private person; however, a private person cannot easily secure access to the media to rebut
falsehoods concerning him, like public figures can.194
Furthermore, Smartmatic’s customers are governments; therefore, Smartmatic must place
a bid to obtain a contract with the government to offer its services. So, Smartmatic understands
it could be involved in a national public controversy if its services become a matter of public
concern. Similar to public figures and public officials, Smartmatic “voluntarily expose[d]
themselves to increased risk of injury from defamatory falsehoods concerning them.”195
Therefore, the Court continues to find that Smartmatic is a limited purpose public figure.
190
Id. at 7.
191
See Thomas, 2005 WL 3048033, at * 2.
192
Mile Marker, Inc. v. Petersen Publ'g, L.L.C., 811 So. 2d 841, 846 (Fla. Dist. Ct. App. 2002).
193
Id.194
See Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974).
195
Id.30
B. MALICE
1. Actual Malice – Under Federal Constitutional Law
If a plaintiff is found to be a limited purpose public figure, the New York Times v. Sullivan
standard of actual malice will apply.196 For purposes of this decision and at trial, the standard of
actual malice will apply because Smartmatic is a limited purpose public figure.
Actual malice must be shown before a public figure may recover for defamation relating
to a public concern.197 The plaintiff must establish the defendant made a defamatory statement
“with knowledge that it was false or with reckless disregard of whether it was false or not.”198
The actual malice test “is not an objective one and the beliefs or actions of a reasonable person
are irrelevant.”199 “Rather, we ask whether the defendant instead of acting in good faith, actually
entertained serious doubts as to the veracity of the published account, or was highly aware that
the account was probably false.”200
To satisfy the reckless disregard standard, a plaintiff must show that the defendant “in
fact entertained serious doubts as to the truth of [its] publication” or had “a ‘high degree of
awareness of . . . probable falsity.’”201 “[T]he state of mind required for actual malice would
have to be brought home to the persons in the [defendant's] organization having responsibility for
the publication of the [statements].”202 Failure to investigate a statement’s truth or falsity, alone,
196
See Gertz, 418 U.S. at 352.
197
See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).
198
Id; Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 773 (1986).
199
St. Amant v. Thompson, 390 U.S. 727, 731 (1986).
200
Michel v. NYP Holdings, Inc., 816 F.3d 686, 703 (11th Cir. 2016); see also Garrison v. St. of La., 379 U.S. 64, 74
(1964)).
201
St. Amant v. Thompson, 390 U.S. 727, 731 (1968) (citing Garrison v. St. of La., 379 U.S. 64, 74 (1964)).
202
Sullivan, 376 U.S. at 287.
31
is insufficient to establish actual malice.203 However, the “purposeful avoidance of the truth” is
different.204 The plaintiff must establish actual malice by clear and convincing evidence.205
Newsmax contends Smartmatic has failed to provide evidence that would permit a
reasonable jury to conclude that Newsmax acted with actual malice.206 Newsmax also contends
the record shows that Newsmax’s reporting of the allegations concerning Smartmatic were made
by then-President Trump and by individuals unaffiliated with Newsmax. Newsmax therefore
claims it was only providing accurate reports of newsworthy claims.207 Moreover, Newsmax
maintains it clarified the reporting and “endorsed Smartmatic’s denials of the allegations” once
the evidence that Trump Affiliates promised to produce did not materialize.208 Finally, Newsmax
contends that Smartmatic must establish Mr. Ruddy acted with actual malice as he “exercised
final editorial authority over all” of the alleged statements.209
Smartmatic argues Newsmax’s executives acted with reckless disregard of the truth
because: (i) the executives either drafted or reviewed the November Email and the December
Article; (ii) the executives conceded they did not have evidence supporting the statements and
implications made about Smartmatic; (iii) the executives “did nothing to vet the credibility of the
guests who appeared” on Newsmax nor did the guest provide documentation to support the
statements the guest made; and (iv) Mr. Ruddy had access to then-President Trump, and then-
President Trump never mentioned Smartmatic was involved with altering the 2020 Election.210
203
St. Amant, 390 U.S. at 731-33 (stating “Actual malice requires more than a departure from reasonable journalistic
standards.”).
204
Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 692 (1989).
205
Hepps, 475 U.S. at 773.
206
Newsmax MSJ at 73.
207
Id.208
Id. at 75.
209
Newsmax Opp. at 87.
210
Smartmatic MSJ at 69-83.
32
For similar reasons, Smartmatic argues Newsmax’s hosts and producers also acted with reckless
disregard of the truth.211
The Court finds there are genuine issues of material facts regarding actual malice.
Newsmax reported on allegations regarding the Election and Smartmatic, but 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 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.
A reasonable jury could conclude that Newsmax had sufficient information that the
allegations about Smartmatic were false through, e.g., the Dominion Fact Sheet, Smartmatic
Fact Sheet, and the statements made by federal and state agencies disclaiming any fraud. Or a
reasonable jury could conclude the Dominion Fact Sheet, and Smartmatic Fact Sheet were self-
serving and Newsmax properly performed as a media organization and continued informing the
public as the allegations unfolded. Newsmax, as a media organization, was not required to
conduct its own investigation into the Election, so the fact that the hosts and producers did not
have evidence does not necessarily support a finding of actual malice. However, the record is
disputed as to whether Newsmax purposely avoided the truth. Accordingly, actual malice is a
question for the jury.
211
Id. at 84-5.
33
2. Punitive Damages
If the jury finds actual malice in Newsmax’s reporting, the jury could award punitive
damages. Under Florida law, “[w]here allegedly defamatory statements involve a matter of
public concern, punitive damages can be recovered only where actual malice is shown.”212
“Punitive damages may properly be imposed to further a State's legitimate interests in punishing
unlawful conduct and deterring its repetition”213 Although states “possess discretion over the
imposition of punitive damages, it is well established that there are procedural and substantive
constitutional limitations on these awards.”214 Therefore, punitive damages is also a question
for a jury to determine.
3. Express Malice – Under Florida Law
Under Florida common law, express malice is “necessary to overcome the common-law
qualified privilege.”215 Whether express malice exists is a question of fact.216 Express malice “is
present where the primary motive for the statement is shown to have been an intention to injure
the plaintiff.”217 Express malice may be established indirectly, by proving a series of acts which,
in the totality of surrounding circumstances, “are inconsistent with the premise of a reasonable
man pursuing a lawful objective, but rather indicate a plan or course of conduct motivated by
spite, ill-will, or other bad motive.”218 “Strong, angry, or intemperate words do not alone show
212
19A Fla. Jur 2d Defamation and Privacy § 133 (citing Rabren v. Straigis, 498 So. 2d 1362 (Fla. Dist. Ct. App.
1986)).
213
BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996).
214
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003).
215
Nodar v. Galbreath, 462 So. 2d 803, 806 (Fla. 1984) (holding that “…there must be a showing that the speaker
used his privileged position to gratify his malevolence.”); Loeb v. Geronemus, 66 So. 2d 241, 244 (Fla. 1953)
(holding express malice which negates a “qualified privilege must be actual and not merely inferred from falsity”).
216
McCurdy v. Collis, 508 So. 2d 380 (Fla. Dist. Ct. App. 1987) (stating “[p]roof of malice in fact involves
production of evidence from which the jury could conclude that the challenged statement was motivated by ill will
and the desire to harm”).
217
Nodar, 462 So. 2d at 806-7.
218
Southern Bell Telephone & Telegraph Company v. Roper, 482 So.2d 538, 539 (Fla. 3d DCA 1986); 29 Am. Jur. 2d
Evidence § 361.
34
express malice;” rather, the plaintiff must show that the speaker used his privileged position “to
gratify his malevolence.”219 “The malice which vitiates a qualified privilege must be actual and
not merely inferred from falsity, etc.”220 Moreover, the privilege is not destroyed merely because
the speaker feels “hostility or ill will toward the plaintiff.”221
The evidentiary burden to show express malice is preponderance of the evidence—less
than the clear and convincing standard applicable to actual malice.222 “Where a person speaks
upon a privileged occasion, but the speaker is motivated more by a desire to harm the person
defamed than by a purpose to protect the personal or social interest giving rise to the privilege,”
then express malice can be inferred, and the privilege is destroyed.223
Newsmax argues Smartmatic has not put forth any evidence that shows Newsmax’s
primary motivation for publishing the allegedly defamation statements was to injure Smartmatic
personally.224 Newsmax notes that Smartmatic has consistently alleged that Newsmax published
the statements for “self-preservation, self-promotion, and financial and other gains because it
was motivated, in part, by the desire for ratings, to cater to individuals and companies supporting
President Trump, and to avoid losing viewers to competing media organizations like Fox News
and OANN.”225
Smartmatic believes because it “has already established” actual malice as a matter of law,
it has also established express malice which is a lesser standard than actual malice.226 And if
“express malice is not automatically satisfied, Smartmatic has more than enough evidence of
219
Id. at 811.
220
Loeb, 66 So. 2d at 244.
221
Id.
222
Id. Miami Herald Pub. Co. v. Ane, 458 So. 2d 239 (Fla. 1984).
223
Nodar, 462 So. 2d at 811.
224
Newsmax MSJ at 122.
225
Id. at 123.
226
Smartmatic Opp. at 114.
35
express malice for the question of punitive damages to go to the jury.”227 Smartmatic contends
because Newsmax published the statements without proof and without conducting its own
investigation, the Court can infer Newsmax’s intended to harm Smartmatic.
The Court finds that Smartmatic conflates the law of express malice and actual malice.
The two are distinct otherwise the common law privileges would not exist in a media case
involving a public figure. “Actual malice under the New York Times standard should not be
confused with the concept of malice as an evil intent or a motive arising from spite or ill will.”228
Either way, Smartmatic has not properly pled express malice in its Amended Complaint nor has
Smartmatic put forth any evidence that would support a finding of express malice.
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.
Moreover, the November Email—sent to Newsmax’s hosts and producers before Newsmax
received the Smartmatic Fact Sheet—clearly states Mr. Ruddy’s position on reporting the
Election. Mr. Ruddy 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.”229
There is no reasonable way to conclude that Mr. Ruddy was acting from spite or ill will;
however, it is reasonable to conclude Mr. Ruddy found it appropriate to give then-President
Trump and Trump Affiliates a platform to explain their Election allegation because Mr. Ruddy
believed that “the President has a right to have a recount or review of these votes.”230 The
227
Id.
228
Masson v. New Yorker Mag., Inc., 501 U.S. 496, 511 (1991).
229
See D.I. 920.
230
See id.36
November Email and the numerous depositions of Newsmax employee shows the same. The
record makes it clear that Newsmax would have reported on the same allegations, no matter who
was providing the voting machines. Contrary to Smartmatic’s allegation, this was not a
“campaign” to defame Smartmatic and a capitalistic motive does not support a finding of express
malice. In viewing the record “in light of the totality of surrounding circumstances,” as
Smartmatic suggested the Court do, the evidence does not support a finding of conduct
motivated by spite, ill-will, or other bad motive.231
To be clear, whether Newsmax, knowingly and recklessly disregarded the truth as to
Smartmatic and the Election is a question for the jury—i.e., actual malice. However, as required
under Florida law, Smartmatic has not demonstrated that there exists a genuine issue as to a
material fact on whether Newsmax acted with express malice—i.e., Newsmax’s primary motive
for the statements was to intentionally to injure Smartmatic, or otherwise constituted a plan or
course of conduct motivated by spite, ill-will, or other bad motive. Accordingly, the Court
denies the Smartmatic Motion on malice and grants the Newsmax Motion on express malice.
C. ELEMENTS OF DEFAMATION
To state a claim for defamation under Florida law, a plaintiff must establish: “(1)
publication;232 (2) falsity; (3) actor must act with knowledge or reckless disregard as to the
falsity on the matter concerning a public [figure] ...; (4) actual damages; and (5) statement must
be defamatory.”233 A statement is defamatory in Florida if it is false and “exposes a person to
231
Smartmatic Opp. at 115.
232
There is no genuine dispute that the alleged defamatory statements were published by Newsmax to a third-party.
233
Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008) (citing Restatement (Second) of Torts § 558
(1977)).
37
distrust, hatred, contempt, ridicule, or obloquy or which causes such person to be avoided, or
which has a tendency to injure such person in his office, occupation, business or employment.”234
The Florida Supreme Court made it clear that a plaintiff suing a media defendant must
plead malice and damages.235 Florida law adopted the United States Supreme Court’s ruling in
Gertz, “which eliminates presumed damages for defamation per se actions against media
defendants.”236 The Court notes that defamation per se does still exist in Florida in cases that do
not involve the media.237
Smartmatic motions this Court to allow presumed damages as a matter of Delaware
public policy because eliminating presumed “damages here would be contrary to longstanding
Delaware public policy expressed in its Bill of Rights.238 The Court declines to do so. In Gertz,
the Court held so long as the States do not impose liability without fault, “the States may define
for themselves the appropriate standard of liability for a publisher or broadcaster” for defaming a
“private individual.”239 The Gertz Court reasoned “this approach provided a more equitable
boundary between the competing concerns” of media organizations and private individuals.240
234
Thomas v. Jacksonville Television, Inc., 699 So. 2d 800 (Fla. Dist. Ct. App. 1997); “A communication is
defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to
deter third persons from associating or dealing with him.” Restatement (Second) of Torts § 559 (1977).
235
Mid-Florida Television Corp. v. Boyles, 467 So. 2d 282 (Fla. 1985). See also Blake v. Giustibelli, 182 So. 3d 881,
884-85 (Fla. Dist. Ct. App. 2016) (“Thus after Gertz, in libel cases involving media defendants, fault and proof of
damages must always be established.”); Edelstein v. WFTV, Inc., 798 So.2d 797, 797-98 (Fla. Dist. Ct. App. 2001)
(“The court’s decision in Boyles makes clear that since Gertz a plaintiff suing a media defendant must nevertheless
plead and prove actual injury.”).
236
Corsi v. Newsmax Media, Inc., 519 F. Supp. 3d 1110, 1119 (S.D. Fla. 2021).
237
See Blake, 182 So. 3d at 885; Lawnwood Med. Ctr. Inc. v. Sadow, 43 So. 3d 710, 727-29 (Fla. Dist. Ct. App.
2010).
238
Smartmatic Opp. at 61.
239
Gertz, 418 U.S. at 348.
240
Id.38
The Court has held that Florida law applies. Therefore, the Court will apply Florida law
on presumed damages, as well. The Court holds that, under Florida law, Smartmatic must plead
and prove actual malice and damages when suing Newsmax, a media organization.241
1. Of and Concerning
Under Florida law and federal law, a cause of action for defamation cannot be maintained
unless it is shown that the alleged defamatory statements are “of and concerning” the plaintiff.242
Put differently, the statements must be specifically directed at the plaintiff to be actionable.243
The allegedly defamatory publications should not be interpreted by extremes, “but should
be construed as the common mind would normally understand it.”244 The Court will consider
whether an average person upon reading the allegedly defamatory publications statements could
reasonably have concluded that Smartmatic was implicated.245 Although the “of and
concerning” requirement is generally a question of fact for the jury, it can also be decided as a
matter of law where the statements “are incapable of supporting a jury's finding that the allegedly
libelous statements refer to a plaintiff”246
Smartmatic argues that there is no material dispute that the At-Issue Statements were “of
and concerning” Smartmatic because the statements refer to Smartmatic or SGO by name.247
241
Mid-Florida Television Corp, 467 So. 2d at 283 (stating “at common law, before Gertz, we said ‘[w]ords
amounting to a libel per se necessarily import damage and malice in legal contemplation, so these elements need not
be pleaded or proved, as they are conclusively presumed as a matter of law.’ This statement is no longer accurate
regarding a libel action against the media”).
242
Thomas v. Jacksonville Television, Inc., 699 So. 2d 800 (Fla. Dist. Ct. App. 1997) (citing Rosenblatt v. Baer, 383
U.S. 75, 86 (1966)).
243
Rosenblatt v. Baer, 383 U.S. 75, 86 (1966)).
244
Walsh v. Miami Herald Publishing Co., 80 So.2d 669, 671 (Fla.1955).
245
See Miami Herald Pub. Co. v. Ane, 423 So. 2d 376 (Fla. Dist. Ct. App. 1982), approved, 458 So. 2d 239 (Fla.
1984).
246
Thomas, 699 So. 2d at 805 (internal citations omitted).
247
Smartmatic MSJ at 50.
39
And the At-Issue Statements refer either to Smartmatic systems, technology, software, or voting
machines.248
Newsmax contends that many of the allegedly defamatory statements are the exact types
of class-wide allegations the Florida courts routinely dismiss.249 Newsmax further contends that
Smartmatic claims it was defamed from statements that did not mention Smartmatic, but rather
referenced “another electronic voting machine company: Dominion.”250
The At-Issue Statements here are of and concerning Smartmatic. Every At-Issue
Statements refers to Smartmatic, and a common mind would understand the statement or the
segment as whole to be “of and concerning” Smartmatic. The Amended Complaint, on the other
hand, includes statements that do not reference to Smartmatic directly. During an interview with
Ms. Powell, Mr. Huckabee stated:
The media keeps saying “there’s no evidence, there’s no evidence.” You and others
have shown hundreds of affidavits, sworn statements, under penalty of perjury, that
means a person could go to prison for lying about it, of people who say they saw
funny business going on. How come we can’t seem to get the media and even the
general public interested in the evidence you have amassed and distributed?251
However, a common mind would find this statement is “of and concerning” Smartmatic even
though it is does not mention Smartmatic specifically by name because the Election coverage in
whole made it clear that Smartmatic was being accused of “rigging” the Election.
Therefore, the Smartmatic Motion on the “of and concerning” factor is granted, and the
Newsmax Motion on the same is denied.
248
Id.249
Newsmax MSJ at 58.
250
Id. at 60.
251
Am. Compl. ¶ 161.
40
2. Falsity
The First Amendment and Florida law require a public figure plaintiff to prove falsity.252
“A statement is not considered false unless it would have a different effect on the mind of the
reader from that which the pleaded truth would have produced.”253 Under the substantial truth
doctrine, “a statement does not have to be perfectly accurate if the ‘gist’ or the ‘string’ of the
statement is true.”254 In considering falsity, the Court “overlooks minor inaccuracies and
concentrates upon substantial truth.”255 However, “if the statement is capable of more than one
meaning,. . .the trier of fact should determine whether the language used was actually understood
in its defamatory sense.”256
“It is for the Court to decide, as a matter of law, whether the complained of words are
actionable expressions of fact or non-actionable expressions of pure opinion and/or rhetorical
hyperbole.”257 To determine whether an allegedly defamatory statement is actionable, the court
examines the statement in its totality and the context in which was published.258 All the words
used must be considered, “not merely a particular phrase or sentence.”259 Additionally, “the
court must give weight to cautionary terms used by the person publishing the statement.”260 The
court must also “consider all of the circumstances surrounding the statement, including the
medium by which the statement is disseminated and the audience to which it is published.”261
252
Smith v. Cuban Am. Nat. Found., 731 So. 2d 702 (Fla. Dist. Ct. App. 1999) (citing Philadelphia Newspapers, Inc.
v. Hepps, 475 U.S. 767 (1986)).
253
Smith, 731 So. 2d at 706.
254
Parekh v. CBS Corp., 820 Fed. Appx. 827 (11th Cir. 2020) (citing Smith, 731 So. 2d at 731).
255
Smith, 731 So. 2d at 707 (citing Masson v. New Yorker Magazine, 501 U.S. 496, 517 (1991)).
256
Smith, 731 So. 2d at 707 (citing Wolfson v. Kirk, 273 So. 2d 774 (Fla. Dist. Ct. App. 1973)).
257
Fortson v. Colangelo, 434 F. Supp. 2d 1369, 1379 (S.D. Fla. 2006)
258
Fortson, 434 F. Supp. 2d at 1379 (citing From v. Tallahassee Democrat, Inc., 400 So. 2d 52 (Fla. Dist. Ct. App.
1981)).
259
Id.260
Id.261
Id.41
Newsmax argues that the statements regarding “Smartmatic’s connections to Venezuela,
and the role of Smartmatic technology in elections in Venezuela, the Philippines, and the United
States are substantially true.”262 Newsmax also contends that the statements concerning Mr.
Neffenger and the statements claiming that Smartmatic’s software was used by Dominion are
substantially true.263 Newsmax does not dispute that some of the statements made by Trump
Affiliates proved to be false, but Newsmax asserts that its own reporting of those “allegations as
the story developed was not substantially and materially false.”264
Smartmatic asserts that the statements falsely “stated or implied that Smartmatic
participated in rigging the 2020 election or Smartmatic’s software was used to rig the 2020
election.”265 Smartmatic states it is “crystal clear” that it did not participate in rigging the 2020
election for the following reasons: (i) Smartmatic only provided its service in Los Angeles
County for the 2020 election; (ii) Smartmatic’s machines allowed voters to select the candidate
of their choice and generated a paper record of the vote; (iii) the machines did not switch, alter,
or change any votes; (iv) the post-election audits verified the 2020 results; and (v) Newsmax
acknowledged it has no evidence of Smartmatic or its software altering the 2020 election.266
Smartmatic has provided no evidence showing the statements regarding Neffenger and ties to
Venezuela are false.
Here, under the under the substantial truth doctrine, the Court cannot find that every
allegedly defamatory statement is materially false. At-Issue Statement #3 includes John
Bachman stating:
262
Newsmax MSJ at 62.
263
Id. at 64.
264
Id. at 65.
265
Smartmatic MSJ at 53.
266
Id. at 54-7.
42
Well, you heard the concerns about Dominion. There’s also some voting software
called Smart Tech that has caught the attention of a lot of Trump supporters and for
good reason. Retired Admiral Peter Neffenger is the chairman of Smartmatic. He’s
also part of Joe Biden’s transition team. Michael Flynn’s attorney, former federal
prosecutor Sidney Powell, says it’s not a coincidence. But we do need to get to the
bottom of all these allegations regarding Dominion and Semantic or Smart Tech I
should say.267
Mr. Bachman’s statement there is substantially true. Mr. Neffenger admitted under oath,
during his deposition that he was a part of President Biden’s team that he is currently the
chairman of the board for Smartmatic. Similarly, in At-Issue Statement #4, Robinson stated, in
part: “They’ve added an executive from that software company to their transition team, his name
is Peter Neffenger. And until recently, he was listed as the chief board member of
Smartmatic.”268
At-Issue Statement #4 also includes Mr. Kraisman’s statement that:
This name here we’re going to give you is Peter Neffenger. He is a former Chief of
the Transportation Security Administration and now sits on the board of the
company called Smartmatic, which is responsible for the software used to count
hundreds of thousands, if not millions of votes, in this specific election
Ms. Robinson’s and Mr. Kraisman’s statement here are substantially true. As stated, Mr.
Neffenger confirmed his connection to President Biden and role on the Smartmatic board. It is
also substantially true that Smartmatic was responsible to “count hundreds of thousands, if not
millions of votes;” Smartmatic offered its services to Los Angeles County, one of the largest
precincts in the Country, so while there may be minor inaccuracies in Kraisman’s statement, the
“gist” of the statement is substantially true. At the very least, the Court would find there is a
triable issue on whether the statement is substantially true.
267
Id. at 14.
268
Id. at 16.
43
Again, At-Issue Statement #2 includes Greg Kelly stating: “Peter Neffenger, his name has
emerged, he worked for the, I’m sorry, Semantic systems, I believe, and he has a role in the
Biden transition team. Anything you can tell us about how are Smartmatic rather Smartmatic –
how big a deal is this?” This is not only substantially true, but it is completely true. Mr.
Neffenger is a Smartmatic board member.269 Moreover, President Biden appoint Mr. Neffenger
to President Biden’s transition team.270
Next, the statement alleging Smartmatic has connections to Venezuela are also
substantially true. In an exchange between Mr. Kraisman and Ms. Robinson, Ms. Robinson
stated:
Now, as you said, and Sidney Powell’s been talking specifically a lot about
Dominion voting machines and Smartmatic. She suggests that any American
official who allowed these into their states should be investigated for possible
conflicts of interest or kickbacks. Now, clearly, that’s not how the Biden camp feels,
however, because they have added an executive or former executive to Smartmatic.
That’s the software Powell are talking a lot about that was used in Venezuela’s,
were heavily implicated and had Venezuela’s dirty elections. They’ve added an
executive from that software company to their transition team, his name is Peter
Neffenger. And until recently, he was listed as the chief board member of
Smartmatic.271
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. Moreover, when CFIUS was to
investigate Smartmatic and its ties to the Venezuelan government, Smartmatic sold its U.S.
subsidiary to Dominion. For these reasons, the At-Issue Statements that discuss Smartmatic’s
269
Neffenger Dep.
270
Id. at 27:6-16.
271
Am. Compl. ¶ 110.
44
ties to Venezuela do not satisfy the falsity factor for defamation. 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.
The Court needs to be clear that this does not mean that allegations regarding Smartmatic
and the Election are disputed. The factual record is clear. Smartmatic did not provide any
election machines or software in connection with the Election outside of Los Angeles. In
addition, the factual record is clear that no one ever alleged that votes in Los Angeles were
altered or manipulated or otherwise questionable. Accordingly, 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. Newsmax has not created any genuine issue as to a material fact on the
issue of falsity/truth on Smartmatic’s involvement in the Election.
Therefore, the Court will allow Newsmax to contest falsity as to Smartmatic’s
connections with Venezuela. However, the Court will instruct the jury that any allegations
regarding whether the Election and its results were somehow altered or manipulated by
Smartmatic are factually false/untrue.
3. Actual Damages
To recover for defamation, the plaintiff “must show that the damages were proximately
caused by the defamatory statements.”272 Actual damages “must be proven by specific evidence
as to the time, cause, and amount.”273 Under Florida law, as discussed above, presumed damages
272
Cape Publications, Inc. v. Reakes, 840 So. 2d 277 (Fla. Dist. Ct. App. 2003).
273
Flynn v. Cable News Network, Inc., 2023 WL 5985193 at *5 (M.D. Fla. Feb. 22, 2023).
45
for defamation per se actions against media defendants is unavailable, therefore, the plaintiff
must plead and prove actual damages.274
Newsmax states Smartmatic has failed to provide a link between Newsmax’s reporting
and Smartmatic’s damages.275 Specifically, Newsmax contends that: (i) Smartmatic’s damage
expert reports “make no sufficient attempt to show that Smartmatic’s harms result from
Newsmax’s conduct” rather than the 2020 Election reporting by third-party news organization;276
(ii) Smartmatic has no evidence “that any of its customers—government contracting officials—
viewed Newsmax’s election coverage, let alone that its reporting impacted those customers’
decision making”;277 and (iii) Smartmatic’s customers (government entities) are required to make
decisions based on objective requirements found in their government, not based on public
perception.278
Smartmatic asserts it has “developed significant expert and fact-based evidence to
demonstrate harm.”279 Particularly, Smartmatic states it will offer expert reports demonstrating
the statements: (i) were disseminated to a unique audience, and contributed to a negative public
perception of Smartmatic; (ii) harmed Smartmatic’s “brand and reputation as a provider that
facilities secure and accurate elections;” and (iii) hindered Smartmatic’s business and it lost
“hundreds of millions in business and incur[red] expenses to restore its reputation.”280
Damages is a question for the jury. Newsmax questions the amount of damages and the
accuracy of how those damages are calculated. Newsmax argues the experts’ reports are flawed
and unsupported by the record; however, the credibility of qualified experts and their findings is
274
See, e.g., Corsi, 519 F. Supp. 3d at 1119 (citing Mid-Florida Television Corp., 467 So. 2d at 282).
275
Newsmax MSJ at 83.
276
Id. at 88.
277
Id. at 93.
278
Id. at 97.
279
Smartmatic Opp. at 63.
280
Id.
46
a question for the jury. The Special Master issued an Order denying the parties’ Daubert
Motions, stating, it is a “jury function” to determine the credibility of experts.281 Moreover, the
Court has denied any exceptions to the decisions by the Special Master on the damages experts
of the parties.
D. PRIVILEGE
“Defamation is an area of state law, and the various defamation privileges are an integral
part of the law of defamation.”282 Whether a defendant is protected by privilege is a question of
law for the court to determine.283 To be clear, in Florida, the media “has no qualified privilege to
defame a private individual simply by virtue of the matter being of public concern.”284 However,
the media does have “qualified privilege to report on matters brought out in public proceedings”
even if it involves private individuals.285
Whether privilege applies is generally a question of law.286 However, the Florida
Supreme Court stated:
In determining whether or not a communication is privilege, the nature of the
subject, the right, duty, or interest of the parties in such subject, the time, place, and
circumstances of the occasion, and the manner, character, and extent of the
communication, should all be considered. When all these facts and circumstances
are conceded, a court may decide whether a communication is a privileged one, so
as to require the plaintiff to prove express malic[e]. But, when all the essential facts
and circumstances are not conceded, the existence or nonexistence of the privilege
should be determined by the jury from all the facts and circumstances of the case. .
. .287
281
D.I. 1114.
282
Rendon v. Bloomberg, L.P., 403 F. Supp. 3d 1269 (S.D. Fla. 2019) (quoting Baravati v. Josephthal, Lyon & Ross,
Inc., 28 F.3d 704 (7th Cir. 1994)).
283
Corsi, 519 F. Supp. 3d at 1119 (internal citations omitted).
284
Ortega v. Post-Newsweek Stations, Fla., Inc., 510 So. 2d 972, 975 (Fla. Dist. Ct. App. 1987).
285
Id.286
Huszar v. Gross, 468 So.2d 512, 516 (Fla. 1st DCA 1985).
287
Hartley & Parker v. Copeland, 51 So. 2d 789 (Fla. 1951); see also Coogler v. Rhodes, 38 Fla. 240, 21 So. 109(1897) (stating the admissible evidence “under the plea of privileged communication”, is “to be considered by the
jury as to whether the alleged libelous language was published through the express malice of the defendant.”).
47
Thus, the Court decides whether the privilege is legally available to Newsmax; however, the jury
will make the factual determination whether Newsmax’s reporting falls within that privilege
because all the facts and circumstances are not “conceded.”
Here, there is no dispute that the reporting on the 2020 Election was a matter of general
or public concern.288 However, Smartmatic believes it is a private individual, thus “absolute
privilege” is not available for Newsmax.289 To support its position, Smartmatic argues that
Miami Herald Publishing Co. “forecloses adopting an absolute privilege shielding Newsmax
from liability” for its statements.290
In Miami Herald Publishing Co., a newspaper falsely reported the plaintiff, a private
person, was the owner of a beer truck found carrying three tons of marijuana.291 There, the
Florida Supreme Court declined to extend qualified privilege for a newspaper to defame a private
person merely because the defamatory communication is directed to a matter of public
concern.292 Instead, the court held that because the plaintiff is a private person, the plaintiff
needs to show the media defendant was negligent with its reporting.293
The Miami Herald Publishing Co. negligence standard is inapplicable here. Smartmatic
is a limited purpose public figure, Newsmax is a media defendant, and there is no express
malice. Accordingly, privilege is available.
1. Neutral Reporting Privilege
“Under Florida law, it is well settled that disinterested communications of matters of
public concern are privileged, even if defamatory.”294 This privilege, known as the “neutral
288
Smartmatic Opp. 8 (Smartmatic concedes that the 2020 election was a matter of “public or general concern.”).
289
Id. at 9.
290
Id. at 8.
291
Miami Herald Pub. Co, 423 So. 2d at 241.
292
Id.293
Id.294
Rendon, 403 F. Supp. 3d at 1276.
48
reporting privilege,” is only extended to disinterested and neutral reporting by media
defendants.295 A “news story” is protected by the neutral reporting privilege when the statement
is a “disinterested report” of a newsworthy event.296
The reporting could be privileged even if the source is unreliable.297 In Smith,
the plaintiff alleged that defendants published defamatory statements in a newspaper article.298
But because the article recounted a third-party’s statements and reported that plaintiff had been
contacted and refused to comment, the court found that the story was protected by the neutral
reporting privilege. This was true even though the plaintiff was not a public figure, and the
source was not a “prominent” or “reliable” source.299
Newsmax contends the neutral reporting privilege applies here because many of the
statements Smartmatic challenges were “statements by third parties made on non-Newsmax
platforms and re-broadcast by Newsmax, or by third parties appearing as guests on Newsmax’s
programs.”300 Newsmax further states when it broadcasted these third-party statements,
Newsmax identified the speaker and provided information on the speaker’s title and their role in
the unfolding events.301 Newsmax contends that Newsmax’s hosts and reporters “endeavored to
make it clear that they were discussing or analyzing allegations by prominent public figures with
personal knowledge of the unfolding controversy.”302
Smartmatic argues the facts from previous cases that applied neutral reporting privilege
are not analogous to this case because Smartmatic is a private figure. Instead, Smartmatic cites
295
Ortega Trujillo v. Banco Cent. Del Ecuador, 17 F. Supp. 2d 1334, 1338 (S.D. Fla. 1998).
296
Smith v. Taylor Cnty. Pub. Co., 443 So. 2d 1042 (Fla. Dist. Ct. App. 1983).
297
Rendon, 403 F. Supp. 3d at 1277.
298
443 So. 2d 1042.
299
Id.300
Newsmax MSJ at 42.
301
Id. at 43.
302
Id. at 44.
49
to Miami Herald Publishing Co. and argues “the Florida Supreme Court declined to recognize a
neutral reporting privilege.”303 Next, Smartmatic argues that even if the Court were to find the
privilege applied, Smartmatic has shown express malice; therefore, the privilege is negated.304
The Court has already found that Smartmatic is a limited purpose public figure and not a private
figure. In addition, the Court has found that no genuine issue of material fact exists on the issue
of express malice.
In this case, because all the facts and circumstances are not conceded, the jury should
decide whether neutral reporting privilege applies. With these facts, a reasonable jury could find
Newsmax was reporting on a matter of public concern without endorsing the allegations
surrounding the Election. However, a reasonable jury could also find that Newsmax provided its
viewers with a report of the newsworthy event but that the report was not a disinterested report
of the newsworthy event.
Here is an example. At-Issue Statement #2 states:
Greg Kelly: And the evidence is slowly emerging. Yes, I would have liked to have
seen it yesterday. But the President has some very, very smart lawyers. One of my
favorites, Sidney Powell, she helped Michael Flynn beat the travesty of a case that
was lodged against him.
Sidney Powell (clip): President Trump won by not just hundreds of thousands of
votes but by millions of votes that were shifted by this software that was designed
expressly for that purpose. We have sworn witness testimony of why the software
was designed. It was designed to rig elections. He was fully briefed on it. And he
saw it happen in other countries. It was exported internationally for profit by the
people that are behind Smartmatic and Dominion. They did this on purpose. It was
calculated. They’ve done it before we have evidence from 2016 in California. We
have so much evidence I feel like it’s coming in through a firehose.
Greg Kelly: I believe her and I don’t believe the critics and the naysayers. Why?
Because quite frankly, they don’t deserve credibility anymore.305
303
Smartmatic MSJ at 126.
304
Id. at 127.
305
Smartmatic MSJ at 12-3 (emphasis added).
50
At-Issue Statement #2 plays a clip of Ms. Powell’s stating her views, which seems to be subject
to the neutral reporting privilege. However, after Ms. Powell’s clip, Mr. Kelly’s statement could
be construed as an endorsement of Ms. Powell’s clip. Mr. Kelly told his audience he believes
Powell’s allegations and he offered his opinion that “the critics and the naysayers . . . don’t
deserve credibility anymore.” A jury could easily find that such a statement is not neutral or
disinterested.
Here is another example. At-Issue Statement #5 states:
Sidney Powell (clip): Well, let me [say] this way. First of all, I never say anything
I can’t prove. Secondly, the evidence is coming in so fast, I can’t even process it
all. Millions of Americans have written I would say by now, definitely hundreds of
thousands have stepped forward with their different experiences of voter fraud. But
this is a massive election fraud. And I’m very concerned it involved not only
Dominion and that Smartmatic software, but that the software essentially was used
by other election machines also. It’s the software that was the problem. Even their
own manual explains how votes can be wiped away.
Chris Salcedo: Now. Yep. They, they issue voting software with a directive and
here’s how you change the results. Why would you issue a voting machine that says,
here’s, here’s a step-by-step process and how you can change the results.
Chris Salcedo: But what Sidney Powell is suggesting is that those who did, there’s
only one reason why you buy Dominion software. There’s only one reason why you
buy that is so you can cheat. And any officer who bought this should be under
investigation, according to Sidney Powell. Because there’s only one reason why
you buy election software with instructions on how to change the vote.306
At-Issue Statement #5 plays a pre-recorded statement by Ms. Powell, and then Mr. Salcedo
questions Ms. Powell’s allegations and identifies the allegations as Ms. Powell’s words.
However, the facts and circumstances surrounding At-Issue Statement #5 are not conceded. The
jury should decide whether Mr. Salcedo’s reporting after Ms. Powell’s pre-recorded statement
was disinterested reporting about matters of public concern or if he adopted Ms. Powell’s
statement as his own and was no longer neutral.
306
Id. at 18-9 (emphasis added).
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2. Fair Report Privilege
In Florida, the news media also has a “qualified privilege to make reports of judicial and
quasi-judicial proceedings as long as they are accurate, fair and impartial.”307 Although the first
uses of the fair report privilege were “related to official proceedings—like court proceedings—
the privilege has since been expanded to cover a wide range of government-derived sources,”
including public records and statements from government officials.308 Neutrally hosting and
moderating a fiery debate is privileged.309
The plaintiff can challenge the fair report privilege where the reporting is not “reasonably
accurate and fair” in describing the contents of the government records and statements.310 In
other words, the publication or broadcast must be a “substantially correct account of the
information contained in public records or from a government source.”311
Smartmatic argues that the relevant statements are not protected because Ms. Robinson
was not reporting on an official document and her account of the document was not reasonably
fair and accurate.312 Specifically, Smartmatic asserts that (i) a document released on the internet
is not an official document; (ii) calling the document a “sworn affidavit” was not an accurate and
fair account of the document because the “sworn affidavit” was not signed or sworn; and (iii)
Ms. Robinson did not mention the document was filed with a lawsuit.313
307
Huszar, 468 So.2d at 516.
308
Larreal v. Telemundo of Fla., LLC, 489 F. Supp. 3d 1309 (S.D. Fla. 2020) (citing Folta v. New York Times Co.,
2019 WL 1486776 (N.D. Fla. Feb. 27, 2019); Woodard v. Sunbeam Television Corp., 616 So. 2d 501 (Fla. Dist. Ct.
App. 1993) (holding privilege applies to information the reporter received from Attorney General's Office and
contained in a report from the Florida Department of Law Enforcement).
309
Corsi, 519 F. Supp. 3d at 1125.
310
Larreal, 489 F. Supp. 3d at 1319.
311
Id.
312
Smartmatic Opp. at 36.
313
Id.
52
Newsmax argues that the privilege applies to information received from government
officials, and it extends to the publication on the contents of the public record.314 And “what
matters is that Ms. Robinson reported on the contents of a federal-lawsuit affidavit, not who she
received it from.”315
Here, the fair report privilege is available to Ms. Robinson’s reporting on the affidavit as
it was submitted with the lawsuits initiated by Trump Affiliates claiming the Election was
compromised. However, a jury will decide whether Ms. Robinson’s reporting falls within the
fair report privilege and whether she provided her audience with reasonably “accurate and fair”
contents of a government record. At-Issue Statements numbers 6, 7, 8, and 9 include Ms.
Robinson reporting on the affidavit, which state:
Well, this stopping of counting on election night, particularly in five different states,
is exactly what prompted a whistleblower to come forward and provide a sworn
affidavit to Trump lawyer Sidney Powell, which she released on the Internet
yesterday. In that affidavit, the high-ranking military official says that – or provides
a detailed firsthand – details of his firsthand experience of manipulating vote
software called Smartmatic in the 2013 presidential election. He was there watching
it in Venezuela. In it he says that this Smartmatic software serves as the basis or the
DNA for all software used in every voting machine. In it he says that as he watched
the 2020 presidential election night coverage it, quote, “The circumstances and
events are eerily reminiscent of what happened with Smartmatic software
electronically changing votes in the 2013 presidential election in Venezuela.”316
Well, a high-ranking military official has provided a sworn affidavit detailing his
firsthand experience with vote-switching software in Venezuela, particularly in the
2013 presidential election in that country. This person says that the Dominion
voting machines uses a similar software that, quote, “has the same DNA.” This
person is saying that they’re coming forward because of what they saw in the 2020
presidential election here in this country saying, quote, “The circumstances and
events are eerily reminiscent of what happened with Smartmatic software
electronically changing votes in the 2013 presidential election in Venezuela.”317
314
Newsmax Reply at 17.
315
Id.
316
Smartmatic MSJ at 20.
317
Id. at 21.
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Yes, Powell says that this is a high ranking military official who has come forward
as a whistleblower detailing his firsthand experience watching votes be changed
during a Presidential election in Venezuela, specifically in 2013. This
whistleblower says that the software that was used was [] Smartmatic. And it was
designed specifically for Hugo Chavez and his successor in order to manipulate
votes without detection. But Smartmatic according to this whistleblower[,]
software that is essentially the ancestor for the software used by Dominion voting
machines and every other vote tabulating machine. The whistleblower saying that
Smartmatic software is the DNA of every vote [] tabulating company software. In
his affidavit, he says quote, the fact that the voting [] machine displays a voting
result that the voter intends and prints out a paper ballot, which reflects that change
does not matter. It is the software that counts the digitized vote and reports the
results. The software itself is the one that changes the information electronically to
[] the operator of the software and vote-counting system intends to produce that
counts. This whistleblower [] says he is coming forward because he’s concerned
about what he has seen during the 2020 presidential election, saying, quote, the
circumstances and events are eerily reminiscent of what happened with Smartmatic
software electronically changing votes in the 2013 presidential election in
Venezuela.318
In Lavin v. New York News, Inc., a newspaper reported on an affidavit filed in a federal
lawsuit by the FBI.319 The affidavit discussed allegedly improper relationships between certain
policemen and persons associated with organized crime.320 Although there were some
discrepancies between what appeared in the affidavit and what was reported, the court held that
the report was fair and accurate because it conveyed a substantially correct account of the official
document.321
A “qualified privilege of reporting on official proceedings is the settled law of
Florida.”322 This privilege “exists so that the public may be kept informed of the workings of
government.”323 “That purpose is served, notwithstanding any inaccuracy of the information,
when the information brought out in official proceedings is reported.”324 Although “the press has
318
Id. at 22.
319
757 F.2d 1416 (3d Cir.1985).
320
Id.321
Id.322
Ortega v. Post-Newsweek Stations, Fla., Inc., 510 So.2d 972, 976 (Fla. Dist. Ct. App. 1987).
323
Id.324
Id. at 977.
54
no duty to go behind statements made at official proceedings and determine their accuracy before
releasing them,” Ms. Robinson could have easily verified the affidavit was sworn.325 Therefore,
the Court cannot determine as a matter of law that Ms. Robinson’s reporting was a fair and
accurate report with minor discrepancies. Ms. Robinson reported the affidavits were sworn when
they were not. A reasonable jury could find Ms. Robinson’s misstatement was material so the
fair report privilege may not apply. Conversely, a reasonable jury could find that because the
contents were read accurately, the fact that the affidavit is sworn or unsworn is immaterial.
E. FLORIDA NOTICE STATUTE
Florida's retraction statute states:
Before any civil action is brought for publication or broadcast, in a newspaper,
periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days
before instituting such action, serve notice in writing on the defendant, specifying
the article or broadcast and the statements therein which he or she alleges to be false
and defamatory.326
Newsmax argues Smartmatic failed to provide Newsmax with a pre-suit notice as
required by Florida law specifying the additional statements added to the Amended Complaint,
so Newsmax is entitled to summary judgment on those statements.327 Newsmax also argues that
not only did Smartmatic fail to give notice, but Smartmatic also failed to request that Newsmax
retract the statements.328
Smartmatic argues that Newsmax is not entitled to summary judgment based on the
retraction statute because: (i) “Newsmax waived the pre-suit notice defense by failing to raise it
as an affirmative defense” in its answer to the Amended Complaint; (ii) Newsmax also failed to
raise the issue in its motion to dismiss; (iii) Smartmatic provided Newsmax with notice of the
325
Id. at 976.
326
Fla. Stat. Ann. § 770.01.
327
Newsmax MSJ at 126.
328
Id.55
statements that Smartmatic intended to add to its Amended Complaint before filing its Amended
Complaint; (iv) the additional statements are of the same nature as the statements that
Smartmatic provided notice for; and (v) serving Newsmax an additional notice would be
futile.329
Here, Newsmax’s defense under the Florida retraction statute is deemed waived. In
Ingersoll v. Hoffman,330 the Supreme Court of Florida held that the “defendant's failure to timely
and specifically raise statutory pre-suit notice conditions until after applicable statute of
limitation had run constituted a waiver of the issue.”331 It was Newsmax’s duty to the raise the
defense in either its Answer to the Amended Complaint or its Motion to Dismiss the Amended
Complaint. Newsmax did not. Now, after the statute of limitations has run, Newsmax is
motioning the Court to grant summary judgment on the additional statements in the Amended
Complaint. This defense was not raised timely; therefore, the defense is inapplicable to this
action.
F. FLORIDA SLAPP
Florida's anti-SLAPP statute prohibits a person from filing a cause of action “against
another person or entity without merit and primarily because such person or entity has exercised
the constitutional right of free speech in connection with a public issue[.]”332 It provides that
“[t]he court shall award the prevailing party reasonable attorney fees and costs incurred in
connection with a claim that an action was filed in violation of this section.”333
329
Smartmatic Opp. 123-25.
330
589 So.2d 223 (Fla.1991).
331
Acosta v. HealthSpring of Fla., Inc., 118 So. 3d 246 (Fla. Dist. Ct. App. 2013).
332
Fla. Stat. Ann. § 768.295.
333
Id.56
Newsmax argues Smartmatic’s claims are based on Newsmax’s exercise of its common
law and constitutional rights, and Smartmatic’s suit is meritless.334 Smartmatic opposes.335 A
meritless claim would not survive a defendant’s motion for summary judgment.336 Therefore, the
Florida SLAPP statute is inapplicable here.
VI. CONCLUSION
For the reasons stated above, the Smartmatic Motion is GRANTED on the issues of: (i)
whether the statements were published; “of and concerning” Smartmatic; and (iii) falsity with
respect to Smartmatic and the Election. Otherwise, the Smartmatic Motion is DENIED.
The Newsmax Motion is GRANTED on express malice only. Otherwise, the Newsmax
Motion is DENIED.
IT IS SO ORDERED
September 12, 2024
Wilmington, Delaware
/s/ Eric M. Davis
Eric M. Davis, Judge
cc: File&ServeXpress
334
Newsmax MSJ at 128.
335
Smartmatic Opp. at 126.
336
See Gov’t Employees Ins. Co. v. Right Spinal Clinic, Inc., 2022 WL 2466039, at *11-2 (M.D. Fla. July 6, 2022).
57