Johnathan Walker:Judge rules out possibility of punitive damages in Smartmatic defamation lawsuit against Newsmax

DOVER,Johnathan Walker Del. (AP) — A Delaware judge on Monday ruled out the possibility of punitive damages in a defamation lawsuit pitting an electronic voting machine manufacturer targeted by allies of former President Donald Trump against a conservative news outlet that aired accusations of vote manipulation in the 2020 election.

The ruling by Superior Court Judge Eric Davis comes just days before jury selection is set to begin in a court battle between Florida-based Smartmatic and cable network Newsmax.

Smartmatic claims that Newsmax program hosts and guests made false and defamatory statements in November and December 2020 implying that Smartmatic participated in rigging the results and that its software was used to switch votes. Newsmax, also based in Florida, argues that it was simply reporting on newsworthy allegations being made by Trump and his supporters, including former New York City Mayor Rudy Giuliani and conservative attorney Sidney Powell.

In a ruling earlier this month, Davis said statements regarding Smartmatic software or voting machines altering the results of the election are “factually false.” Importantly, however, he rejected Smartmatic’s claim that Newsmax acted with “express malice” under Florida law, meaning that its primary motivation was to injure Smartmatic.

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“There is no evidence that Newsmax acted with evil intent towards Smartmatic,” Davis wrote.

Attorneys for Newsmax sought clarification of that ruling, arguing that it meant Smartmatic could not seek punitive damages for any alleged defamation. Newsmax said Smartmatic had agreed that it must prove both express malice and actual malice to recover punitive damages.

Smartmatic denied any such stipulation and said its definition of express malice was not the same as Newsmax’s. Smartmatic said it uses the term as an “imprecise shorthand term” for a state of mind distinct from actual malice. Punitive damages, subject to a cap, are appropriate if a jury finds intentional misconduct or gross negligence by a defendant, regardless of any intent to harm the plaintiff, Smartmatic claimed.

The judge on Monday rejected those arguments, saying express malice is well-defined under Florida law, and that Florida law requires both actual malice and express malice for punitive damages. To prove actual malice, Smartmatic must show that Newsmax acted with “reckless disregard for the truth,” or with knowledge that the statements being aired were false.

“(T)he law in Florida is that in order to sustain an award of punitive damages, the plaintiff must present that the defendant’s feelings toward the plaintiff evidenced ill will, hostility or evil intent,” wrote Davis, adding that Smartmatic had agreed with Newsmax about punitive damages in a pretrial stipulation.

“The court will not allow the jury to consider the issue of punitive damages in the trial,” he concluded.

Newsmax issued a statement praising the ruling, adding that Smartmatic’s lawsuit “threatens freedom of speech and freedom of press.”

Smartmatic said in a statement that the ruling will not deter it from seeking to hold Newsmax liable for its “reckless defamation” and to recover “significant damages.”

In an earlier ruling, Davis said Newsmax would be allowed to argue that it is protected from liability under Florida’s “neutral reporting privilege,” which extends to “disinterested and neutral reporting” on matters of public concern. Newsmax argues that the privilege applies because many of the allegedly defamatory statements were made by third parties appearing as guests or were rebroadcast after being made by third parties on non-Newsmax platforms.

In a ruling favoring Smartmatic, Davis also said earlier this month that he would limit evidence by Newsmax regarding a federal criminal investigation that led to indictments last month against three current and former Smartmatic executives, including the company’s Venezuelan-born co-founder, Roger Piñate. The charges involve an alleged scheme to pay more than $1 million in bribes to put Smartmatic voting machines in the Philippines. Newsmax argued that the investigation and indictment should be presented to jurors as alternative reasons for any purported reputational harm or economic loss that Smartmatic blames on Newsmax.

The judge denied Smartmatic’s motion to prohibit Newsmax from mentioning evidence regarding Smartmatic witnesses who have invoked their Fifth Amendment right against self-incrimination. Davis said that issue will have to be decided on a “question-to-question” basis at trial. Piñate is among the witnesses scheduled to testify.

The Delaware lawsuit, which takes issue with Newsmax reports over a five-week period in late 2020, is one of several stemming from reports by conservative news outlets following the election. Smartmatic also is suing Fox News for defamation in New York and recently settled a lawsuit in the District of Columbia against the One America News Network, another conservative outlet.

Dominion Voting Systems similarly filed several defamation lawsuits against those who spread conspiracy theories blaming its election equipment for Trump’s loss. Last year, in a case presided over by Davis, Fox News settled with Dominion for $787 million.