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During a pivotal court hearing on Tuesday, a lawyer for the voting technology firm Smartmatic argued that senior executives at Fox News, specifically Rupert and Lachlan Murdoch, sanctioned a deliberate strategy to embrace false claims of election fraud promoted by Donald Trump.

“The conservative viewers, their bread and butter, deserted them,” declared J Erik Connolly, the company's attorney. “What was their response? They return back to what they know best: they return back to disinformation, political propaganda and fear-mongering. The election narrative and the election fraud claims was the perfect vehicle for them to get back onto their core messaging.”

A Multi-Billion Dollar Libel Case Hangs in the Balance

In oral arguments, both parties urged with Judge David B Cohen to rule on critical aspects of Smartmatic's $2.7bn defamation lawsuit ahead of a possible trial next year. The company maintains that Fox executives hatched a plan to “pivot” to Trump's claims to win back angry viewers.

Fox's Vehement Rebuttal

K Winn Allen, representing the network, vigorously denied these claims. “No disinformation campaign was authorized,” he said. “It is completely false. It is not supported by the record. It is nonsense. It is made up by lawyers on the other side.”

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

The Core Challenge: Proving “Actual Malice”

To win its case, the voting firm will have to demonstrate that key figures at Fox News were aware the allegations lacked truth but allowed them to be broadcast anyway. Through legal motions, Smartmatic cited private messages showing personalities 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 “wildly inflated” its worth and the estimated financial losses from the broadcasts. Fox maintains its personalities were simply reporting on newsworthy claims from the president's associates, not promoting them.

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

A Precedent Is Highly Relevant

The arguments strongly resemble the prior legal action brought by Dominion Voting Systems against Fox. In that matter, a judge's pre-trial rulings proved critical, finding that Fox's broadcasts were false and defamatory per se.

That legal decision was later cited as a key factor in Fox's choice to resolve with Dominion for $787.5 million. A former Fox executive remarked that the court's initial decisions had “hamstrung” the company's ability to defend itself at trial.

Judge Cohen's Stance

The presiding judge gave no clear indications of his thinking but told Smartmatic's lawyer that establishing “actual malice” for a summary judgment would be a “difficult task.” He stated he intended to review all relevant broadcasts before making a decision.

“I think I have sufficient information, evidence, legal briefs, diagrams, graphs and everything I need to reach a verdict,” he told the two sides in the case.