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In a pivotal court hearing on Tuesday, a lawyer for the voting technology firm Smartmatic argued that senior leaders at Fox News, including Rupert and Lachlan Murdoch, sanctioned a deliberate strategy to adopt baseless assertions of election fraud promoted by Donald Trump.

“The conservative viewers, their bread and butter, deserted them,” stated J Erik Connolly, the company's attorney. “So what do they do? They revert to what they know best: they go back to misinformation, political 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 Libel Case Is at Stake

In courtroom presentations, both parties pleaded with Judge David B Cohen to rule on critical elements of Smartmatic's $2.7 billion defamation lawsuit before a potential trial in the coming year. The company argues that Fox executives hatched a plan to “pivot” to the former president's allegations to win back disaffected viewers.

Fox's Vehement Rebuttal

K Winn Allen, speaking for the network, vigorously denied these accusations. “No disinformation campaign was authorized,” he said. “It is total bunk. The evidence does not support it. It is nonsense. It is made up by opposing counsel.”

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 Central Challenge: Proving “Actual Malice”

To win its case, the company will have to demonstrate that key figures at Fox News were aware the fraud claims lacked truth but allowed them to be aired anyway. In its filings, Smartmatic has pointed to internal communications showing personalities like Jeanine Pirro and Maria Bartiromo voicing skepticism about the claims while also showing an interest to help Trump.

The network's attorney countered that Smartmatic has “wildly inflated” its value and the estimated financial losses from the coverage. Fox maintains its personalities were merely reporting on newsworthy allegations from the president's associates, not endorsing them.

“This suit is not truly about Fox's reporting of the 2020 election,” the Fox lawyer stated. “It concerns Smartmatic's attempt to seize on remarks 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 summary judgment decisions were decisive, finding that Fox's broadcasts were false 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 legal officer noted that the court's initial decisions had “hamstrung” the company's ability to defend itself at trial.

The Judge's Position

Judge Cohen offered no clear indications of his leaning but told Smartmatic's lawyer that establishing “actual malice” for a summary judgment would be a “difficult task.” He stated he planned to examine all pertinent broadcasts before issuing his rulings.

“I believe I have sufficient information, evidence, briefings, diagrams, charts and all I need to reach a verdict,” he informed the parties in the lawsuit.