Tucker Carlson could play a starring role in Smartmatic's $2.7 billion defamation lawsuit – and Fox News should be terrified 
Jacob Shamsian
Fri, June 30, 2023 at 1:37 PM PDT
- Ever since he was fired from Fox News, Tucker Carlson has been trying to escape from the network's grip.
- He could have some leverage through Smartmatic's $2.7 billion defamation lawsuit.
- Carlson could play a starring role in helping Smartmatic prove its case, experts say.
Ever since Fox News fired its star host in April with no explanation, he has been in open conflict with the network.
Forbidden from hosting his own TV show for the duration of his contract, which ends in December of 2024, Carlson has resorted to vlogging on Twitter. But Fox isn't happy with that arrangement, sending legal threats over his new show.
Carlson has a potential ace up his sleeve: becoming a friendly witness for Smartmatic in its pending $2.7 billion lawsuit against Fox News.
Fox fired Carlson just days after it agreed to pay $787.5 million to settle a defamation lawsuit from Dominion Voting Systems. The timing contributed to theories — which Dominion has denied — that dropping Carlson was one of the settlement's terms.
Carlson may have been a damaging witness for Fox News for other reasons. According to the New York Times, evidence collected by Dominion as part of the lawsuit's discovery process show Carlson sending messages with misogynistic language and expressing some allegiance with a group of white men assaulting an "Antifa kid." The potential public damage would have hit Fox hard and fast. Before a settlement was reached, Dominion had planned to call Carlson to the witness stand.
Still on the horizon is Smartmatic's defamation lawsuit. Like Dominion, Smartmatic alleges that Fox News defamed it when it hosted Rudy Giuliani and Sidney Powell, two conspiracy theorist lawyers. In interviews on Fox News programs, they pushed false claims that Dominion and Smartmatic, two election technology companies, were somehow secretly in cahoots with each other and flipped the 2020 election from then-President Donald Trump to now-President Joe Biden.
Smartmatic's suit, which also includes Giuliani as a defendant (Powell is being sued separately in Washington, DC, court for jurisdictional reasons), is playing out in a New York state court and expected to go to trial in 2025. The judge previously ordered Fox to give Smartmatic all the discovery evidence in the Dominion lawsuit, handing Smartmatic a powerful weapon already.
If Smartmatic were to put Carlson on the witness stand — or even just play a deposition video — he could deal a potent blow against Fox News.
"It would be great primetime viewing when he has his deposition taken in the case," Clay Calvert, an expert in First Amendment law, told Insider.
Smartmatic has to meet a high legal standard. Tucker may help.
The fact that Carlson has already — in Fox's eyes — flouted his contract by hosting a show on Twitter could also make him dangerous. According to Gautam Hans, a First Amendment expert and professor at Cornell Law School, Fox shouldn't be sure he won't be willing to walk away from his ongoing contract, even if it means forfeiting tens of millions of dollars."For someone like Tucker Carlson, they could not be confident in the NDA holding in general, if they have one, because of his willingness to not comply with other provisions of his agreements," he said.
Fox News has contended that its actions are protected by the First Amendment and called Smartmatic's lawsuit an assault on free speech.
"We will be ready to defend this case surrounding extremely newsworthy events when it goes to trial, likely in 2025," a Fox spokesperson told Insider. "As a report prepared by our financial expert shows, Smartmatic's damages claims are implausible, disconnected from reality, and on its face intended to chill First Amendment freedoms."
A key hurdle for Smartmatic is proving "actual malice." To meet that legal standard, Smartmatic must prove not just that the claims were false, but that decision-makers such as anchors, producers, and executives at Fox News knew they were false, or acted with reckless disregard for the truth.
The only question, Hans said, is how far Carlson is willing to go in helping Smartmatic with its case, knowing it'll upset Fox News.
Tucker Carlson at a Fox News event in 2022.Jason Koerner/Getty Images
"Because the standard is so high, having as much ballast for your argument is never a bad thing, and I'm sure for Smartmatic, that would be appealing," Hans said. "The question is, is he willing to do that? Because it might open him up to some litigation risk in the future."
Carlson, as someone who has the ear the most important executives at Fox News and its parent company News Corp., can become an important witness to help Smartmatic make that argument. In private messages revealed through the Dominion litigation, he had already said he believed that Powell was "lying."
"One key factor where he's most relevant is source credibility, which is one of the circumstantial pieces of evidence that can show reckless disregard for truth," Calvert, nonresident senior fellow at the American Enterprise Institute, told Insider. "Courts have said that in other cases. How credible is your source? Did you have a reason to doubt your source?"
Carlson didn't respond to a request for comment. He has been circumspect in his public remarks about Fox News as his attorney tries to disentangle him from the network. But under subpoena and on the witness stand, no non-disclosure agreement could stop him from speaking his mind.
Fox will likely "try to paint him as he's got an ax to grind," Calvert said. But Smartmatic will have contemporaneous messages to work with. And under subpoena, Carlson will be obligated to be honest.
"He's obligated to tell the truth regardless of whether he had been fired," Calvert said. "Under the law, you don't embellish anything."
Read the original article on Business Insider
