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

“The conservative viewers, their bread and butter, deserted them,” stated J Erik Connolly, Smartmatic's lawyer. “What was their response? They revert to what they know best: they return back to misinformation, political propaganda and xenophobia. The election story and the fraud allegations was the ideal vehicle for them to return to their central messaging.”

A Massive Defamation Case Is at Stake

During oral arguments, both sides urged with Judge David B Cohen to rule on critical aspects of Smartmatic's $2.7bn defamation lawsuit ahead of a potential trial next year. The company maintains that Fox executives devised a plan to “pivot” to the former president's allegations to win back disaffected viewers.

The Network's Strong Rebuttal

K Winn Allen, representing the network, vigorously denied these accusations. “No campaign of misinformation was authorized,” he said. “It is total bunk. The evidence does not support it. It is nonsense. It is made up by lawyers on the other side.”

He added that the Murdochs, who ultimately controlled the network, “didn't give anyone any orders to cover Smartmatic or the election fraud allegations.”

The Central Legal Hurdle: Proving “Actual Malice”

To win its case, the voting firm must prove that key figures at Fox News knew the fraud claims were false but permitted them to be aired anyway. Through legal motions, Smartmatic cited internal communications showing hosts like Jeanine Pirro and Maria Bartiromo expressing doubt about the claims while also showing an interest to assist Trump.

The network's attorney countered that Smartmatic has “grossly exaggerated” its worth and the estimated financial losses from the coverage. Fox maintains its hosts were simply discussing newsworthy claims from the president's associates, not promoting them.

“This lawsuit is not truly about Fox's coverage of the 2020 election,” said Allen. “It's about Smartmatic's effort to seize on comments made by the president's lawyers to salvage its financial livelihood.”

A Previous Case Is Highly Relevant

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

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

The Judge's Stance

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 stated he planned to review all relevant broadcasts before making a decision.

“I think I have more than enough material, evidence, legal briefs, charts, graphs and all I need to reach a verdict,” he informed the two sides in the lawsuit.