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During a key court hearing on Tuesday, a lawyer for the voting technology company Smartmatic contended that top leaders at Fox News, specifically Rupert and Lachlan Murdoch, sanctioned a deliberate plan to adopt baseless assertions of voting fraud promoted by Donald Trump.

“Their core viewers, their primary audience, deserted them,” stated J Erik Connolly, the company's attorney. “What was their response? They return back to what they know best: they return back to misinformation, political propaganda and fear-mongering. The election story and the fraud allegations was the ideal vehicle for them to return to their central messaging.”

A Massive Defamation Lawsuit Hangs in the Balance

In oral arguments, both parties pleaded with the New York state supreme court judge David B Cohen to rule on essential elements of Smartmatic's $2.7bn defamation lawsuit ahead of a possible trial in the coming year. The plaintiff maintains that Fox executives hatched a plan to “shift” to the former president's allegations to recapture angry viewers.

Fox's Vehement Rebuttal

A lawyer for Fox News, representing the network, strongly contested these accusations. “No disinformation campaign was authorized,” he said. “It is completely false. The evidence does not support it. It is hogwash. It was fabricated by opposing counsel.”

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

The Core Legal Hurdle: Proving “Actual Malice”

For Smartmatic to prevail, the voting firm will have to demonstrate that key figures at Fox News knew the fraud claims were false but allowed them to be broadcast anyway. In its filings, Smartmatic has pointed to internal communications showing personalities like Jeanine Pirro and Maria Bartiromo expressing doubt about the claims while also expressing a desire to help Trump.

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

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

A Precedent Looms Large

The arguments strongly resemble the successful legal action brought by Dominion Voting Systems against Fox. In that case, a judge's summary judgment decisions were decisive, ruling that Fox's statements were false and defamatory per se.

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

The Judge's Position

Judge Cohen offered few indications of his leaning but told Smartmatic's lawyer that establishing “actual malice” for a pre-trial ruling would be a “hard sell.” He stated he intended to review all pertinent television segments before making a decision.

“I think I have sufficient material, data, briefings, diagrams, charts and everything I need to reach a verdict,” he informed the two sides in the lawsuit.