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During a key legal proceeding on Tuesday, a lawyer for the voting technology company Smartmatic contended that senior leaders at Fox News, including Rupert and Lachlan Murdoch, sanctioned a conscious strategy to adopt false claims of election fraud promoted by Donald Trump.

“Their core viewers, their primary audience, deserted them,” stated J Erik Connolly, the company's attorney. “So what do they do? They return back to what they know best: they return back to misinformation, pro-Trump propaganda and fear-mongering. The election narrative and the fraud allegations were the perfect vehicle for them to get back onto their core messaging.”

A Multi-Billion Dollar Defamation Lawsuit Hangs in the Balance

During oral arguments, both parties pleaded with the New York state supreme court judge David B Cohen to rule on critical elements of Smartmatic's $2.7bn defamation lawsuit before a potential trial next year. The company argues that Fox leaders hatched a plan to “pivot” to the former president's allegations to win back disaffected 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 hogwash. It is made up by lawyers on the other side.”

He further asserted that the Murdochs, who ultimately controlled the network, “issued no directives to cover Smartmatic or the fraud claims.”

The Central Challenge: Proving “Knowing Falsity”

To win its case, the voting firm will have to demonstrate that important personnel at Fox News knew the fraud claims were false but allowed them to be aired regardless. In its filings, Smartmatic has pointed to private messages showing hosts like Jeanine Pirro and Maria Bartiromo voicing skepticism about the claims while also expressing a desire to assist Trump.

Allen, Fox's lawyer argued that Smartmatic has “wildly inflated” its value and the estimated damages from the broadcasts. Fox maintains its personalities were simply reporting on newsworthy allegations from the president's associates, not promoting them.

“This lawsuit is not truly about Fox's coverage of the 2020 election,” the Fox lawyer stated. “It concerns Smartmatic's attempt to seize on comments made by the president's lawyers to rescue its financial livelihood.”

A Previous Case Looms Large

Smartmatic's case strongly resemble the prior defamation lawsuit brought by Dominion Voting Systems against Fox. In that matter, a judge's summary judgment decisions proved critical, finding that Fox's broadcasts were false and inherently damaging.

That legal decision was later cited as a key factor in Fox's choice to settle with Dominion for $787.5 million. A previous Fox legal officer noted that the court's initial decisions had “hamstrung” the company's legal defense at trial.

Judge Cohen's Position

The presiding judge gave few hints of his thinking but told Smartmatic's lawyer that establishing “actual malice” for a summary judgment would be a “difficult task.” He said he planned to review all pertinent broadcasts before making a decision.

“I believe I have sufficient information, evidence, briefings, charts, graphs and everything I need to reach a verdict,” he told the two sides in the lawsuit.