“This lawsuit is a dangerous attempt to destroy not just an independent, family-run media company, but the principles of free speech and a free press upon which this country was founded,” said Herring Networks, operator of the far-right network.
Smartmatic sued OAN last November over the pro-Trump outlet’s persistent reports baselessly alleging a rigged or stolen 2020 election. The company based in Boca Raton, Florida, made nearly 470 allegations in a 197-page libel suit.
OAN’s answer — filed Aug. 26, nearly 10 months later — runs 310 pages.
“OAN was uniquely accurate and truthful in various aspects of its reporting on the 2020 U.S. presidential election,” writes Blaine C. Kimrey, the Vedder Price attorney writing for Herring Networks — who worked at two daily newspapers and has a journalism degree from the University of Kansas.
Herring is demanding a jury trial before federal Judge Carl J. Nichols in the District of Columbia. Nichols was nominated in 2019 by President Trump but has issued rulings against Trump allies like Steve Bannon.
Citing media reports instead of its own numbers, OAN says it lost “presence” in 20 million homes as of July 2022 — out of 35 million — after being dropped by DirecTV and Verizon Fios. (OAN is suing former DirecTV parent AT&T in San Diego Superior Court, with hearings set for January 2023.)
Addressing OAN’s election denialism, Smartmatic said in its suit that “the first time it happened could be a mistake. The second, third, fourth and 50th times it happened were intentional choices” and OAN “chose to do the wrong thing every time. It reported a lie.”
Smartmatic — which also is suing Fox News and several allies of Donald Trump — says OAN’s election lies led to valuation losses exceeding $2 billion.
But Herring’s answer says Smartmatic won’t be able to prove it suffered any damages “arising from any alleged conduct of Herring.”
OAN says Smartmatic’s suit “was designed to grab headlines, and Plaintiffs and their representatives have boasted that they intend to punish and take down OAN for its reporting.”
Times of San Diego sent OAN CEO Robert Herring Sr. and his legal team several questions about the Aug. 26 legal filing.
One noted that OAN in the filing “admits that Congress certified Joe Biden and Kamala Harris as the winners of the 2020 election for President and Vice President of the United States, based on the electoral count alleged in Paragraph 65.”
By using “alleged,” we asked, was OAN suggesting the “electoral count” as certified wasn’t true or accurate? What is the true Electoral College count?
Herring replied via email: “You have never written anything good about us, why would I want to say anything?”
(OAN also was asked if it was considering a settlement like its one with Georgia election workers and whether it was planning to file an anti-SLAPP motion as a media outlet alleging free-speech intimidation.)
Smartmatic lawyers didn’t respond to a separate request for comment.
The Florida company said in November that OAN knew that Smartmatic was not used in any state or county outside of Los Angeles County.
“That fact is easily ascertainable from public records,” said Smartmatic. “Perhaps recognizing this flaw with its story, OANN tried to hedge its bets by linking Smartmatic to Dominion and other voting machine systems. OANN accomplished this by stating and implying that a corporate relationship between Smartmatic and Dominion existed and by stating and implying that Smartmatic’s technology and software was ‘in the DNA’ of every other voting machine, including Dominion machines.”
OAN’s answer: “Defendant denies [those] allegations.”
In its answer, OAN also doubles down on its views of the Trump-Biden election and defends its reporting as truthful:
- “Defendant asserts that there is evidence of ‘rigging,’ ‘compromise’ and ‘theft’ associated with the 2020 U.S. presidential election, just as there is with pretty much any election globally. Errors occurred, both inadvertently and intentionally.”
- “Defendant admits that the information OAN published about any Smartmatic entity was accurate and truthful and that OAN was uniquely accurate and truthful in various aspects of its reporting on the 2020 U.S. presidential election.”
- “Defendant denies that no Venezuelans control one or more Smartmatic or Smartmatic-affiliated entities.” (Although Venezuelans co-founded Smartmatic, the notion of that nation’s control has been repeatedly debunked.)
- “Defendant denies that any Dominion website is the best source for truthful information about any Dominion or Smartmatic entity.”
- “Defendant admits that OAN prides itself on providing viewers with credible, honest, unbiased reporting. In asserting that ‘OANN and its journalists are legally and ethically bound to provide factually accurate information,’ Paragraph 21 asserts a legal conclusion to which no response is required; nevertheless, Defendant acknowledges that legal and ethical standards exists in the journalistic profession and that OAN dutifully abides by those standards.”
Defendant responds that OAN complies with journalism ethical standards, but Plaintiffs have failed to specify what entity’s standards they’re allegedly invoking.
In the journalism profession, there is nothing generally referred to as “generally accepted journalism standards” (in contrast, for instance, to Generally Accepted Accounting Principles in the accounting profession).
Defendant doesn’t understand whether Plaintiffs are referring to Society for Professional Journalists standards, Associated Press standards, or some other organization’s standards.
Defendants admits that verification in hard news reporting is important but denies that not doing so equates to actual malice.