In one of the largest and most significant libel suits ever brought in this state, a company named Smartmatic alleges that certain Fox News hosts and others have falsely disparaged its election technology and software and defamed its corporation by accusing it of being part of a conspiracy that had switched votes from Trump to Biden. Fox News, in its response, claims that it is protected by the First Amendment “free speech” guarantee of the U.S. Constitution and the safeguards created by the U.S. Supreme Court. The viability of the libel case of Smartmatic v. Fox News will be decided in New York courts applying the First Amendment of the U.S. Constitution as well as New York’s common law—that is, the precedence established by New York courts concerning defamation.

After our founders adopted the First Amendment to our Constitution, which says that Congress cannot abridge “the freedom of speech, or of the press,” President John Adams and the Federalist-controlled Congress seemingly abridged “free speech” by enacting the Sedition Laws, which made it a crime to “write, print, utter, or publish … any false, scandalous and malicious writing” against the president and other executive branch officials.” Our founders, who wrote the First Amendment, felt free to pass the Sedition Laws because as drafters of the First Amendment they knew the amendment was not intended to protect libelous speech.