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In a key legal proceeding on Tuesday, a attorney for the voting technology company Smartmatic contended that top leaders at Fox News, specifically Rupert and Lachlan Murdoch, sanctioned a deliberate plan to embrace baseless assertions of election fraud championed by Donald Trump.

“The conservative viewers, their primary audience, abandoned them,” stated J Erik Connolly, Smartmatic's lawyer. “So what do they do? They revert to what they know best: they go back to misinformation, political propaganda and fear-mongering. The election story and the fraud allegations were the perfect vehicle for them to return to their central messaging.”

A Multi-Billion Dollar Libel Case Is at Stake

During oral arguments, both parties urged with Judge David B Cohen to decide on critical elements of Smartmatic's $2.7bn defamation lawsuit ahead of a potential trial in the coming year. The company argues that Fox leaders devised a plan to “pivot” to the former president's allegations to win back angry viewers.

The Network's Strong Rebuttal

A lawyer for Fox News, representing the network, vigorously denied these claims. “No disinformation campaign was ordered,” he stated. “It is total bunk. It is not supported by the record. It is nonsense. It was fabricated by lawyers on the other side.”

He further asserted that the Murdochs, who held ultimate control over the network, “issued no directives to cover Smartmatic or the fraud claims.”

The Central Legal Hurdle: Proving “Actual Malice”

For Smartmatic to prevail, the voting firm must prove that key figures at Fox News knew the fraud claims lacked truth but allowed them to be broadcast regardless. Through legal motions, Smartmatic cited internal communications showing hosts like Jeanine Pirro and Maria Bartiromo expressing doubt about the claims while also expressing a desire to assist Trump.

The network's attorney countered that Smartmatic has “grossly exaggerated” its worth and the estimated damages from the broadcasts. Fox contends its personalities were simply reporting on newsworthy allegations from the president's allies, not endorsing them.

“This suit is not truly about Fox's coverage of the 2020 election,” said Allen. “It's about Smartmatic's attempt to capitalize on comments made by the president's lawyers to rescue its business viability.”

A Previous Case Is Highly Relevant

The arguments closely mirror the successful defamation lawsuit brought by Dominion Voting Systems against Fox. In that case, a judge's pre-trial rulings were decisive, ruling that Fox's broadcasts were untrue and defamatory per se.

That legal decision was later cited as a major reason in Fox's choice to settle with Dominion for $787.5 million. A previous Fox executive remarked that the court's initial decisions had “severely limited” the company's ability to defend itself at trial.

Judge Cohen's Position

The presiding judge offered few hints of his thinking but informed Smartmatic's lawyer that proving “knowledge of falsity” for a pre-trial ruling would be a “difficult task.” He said he intended to review all pertinent television segments before making a decision.

“I think I have more than enough material, evidence, briefings, charts, charts and all I need to make my ruling,” he informed the two sides in the lawsuit.