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In a pivotal legal proceeding on Tuesday, a lawyer for the voting technology company Smartmatic contended that senior executives at Fox News, including Rupert and Lachlan Murdoch, authorized a deliberate strategy to adopt false assertions of election fraud championed by Donald Trump.

“Their core viewers, their bread and butter, deserted them,” declared J Erik Connolly, the company's attorney. “What was their response? They revert to what they know best: they go back to disinformation, pro-Trump propaganda and fear-mongering. The election story and the election fraud claims was the ideal vehicle for them to return to their core messaging.”

A Massive Defamation Lawsuit Hangs in the Balance

In oral arguments, both parties urged 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 possible trial in the coming year. The plaintiff maintains that Fox leaders hatched a plan to “shift” to the former president's allegations to recapture angry viewers.

Fox's Vehement Rebuttal

A lawyer for Fox News, speaking for the network, vigorously denied these accusations. “No disinformation campaign was ordered,” he said. “It is completely false. It is not supported by the record. It is nonsense. It was fabricated by opposing counsel.”

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 Core Challenge: Proving “Knowing Falsity”

To win its case, the voting firm must prove that important personnel at Fox News knew the allegations lacked truth but permitted them to be broadcast regardless. In its filings, Smartmatic has pointed to private messages showing hosts like Jeanine Pirro and Maria Bartiromo expressing doubt about the claims while also showing an interest to help Trump.

Allen, Fox's lawyer countered that Smartmatic has “wildly inflated” its worth and the projected financial losses from the coverage. Fox contends its hosts were simply reporting on newsworthy allegations from the president's associates, not endorsing them.

“This lawsuit really isn't about Fox's coverage of the 2020 election,” the Fox lawyer stated. “It's about Smartmatic's attempt to capitalize on comments made by the president's lawyers to salvage its financial livelihood.”

A Precedent Is Highly Relevant

Smartmatic's case closely mirror the prior legal action brought by Dominion Voting Systems against Fox. In that matter, a judge's pre-trial rulings were decisive, ruling that Fox's statements were untrue and inherently damaging.

That ruling was later cited as a major reason in Fox's choice to resolve with Dominion for $787.5 million. A former Fox executive noted that the judge's pre-trial rulings had “hamstrung” the company's legal defense at trial.

Judge Cohen's Stance

The presiding judge offered no clear indications of his thinking but informed Smartmatic's lawyer that establishing “actual malice” for a summary judgment would be a “hard sell.” He said he intended to review all relevant broadcasts before making a decision.

“I think I have more than enough material, evidence, legal briefs, diagrams, charts and everything I need to make my ruling,” he told the parties in the case.