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In a pivotal court hearing on Tuesday, a attorney for the voting technology firm Smartmatic argued that top executives at Fox News, including Rupert and Lachlan Murdoch, sanctioned a conscious plan to embrace baseless assertions of voting fraud promoted by Donald Trump.

“Their core viewers, their primary audience, abandoned them,” stated J Erik Connolly, Smartmatic's lawyer. “So what do they do? They return back to what they know best: they go back to disinformation, pro-Trump propaganda and fear-mongering. The election narrative and the election fraud claims was the perfect tool for them to get back onto their core messaging.”

A Massive Defamation Lawsuit Hangs in the Balance

During courtroom presentations, both sides pleaded with the New York state supreme court judge David B Cohen to rule on critical aspects of Smartmatic's $2.7bn legal action before a possible trial in the coming year. The company argues that Fox leaders hatched a plan to “shift” to Trump's claims to win back angry viewers.

The Network's Strong Rebuttal

K Winn Allen, representing the network, vigorously denied these claims. “No disinformation campaign was ordered,” he said. “It is total bunk. The evidence does not support it. It is hogwash. It is made up by opposing counsel.”

He added that the Murdochs, who held ultimate control over the network, “issued no directives to cover Smartmatic or the election fraud allegations.”

The Core Legal Hurdle: Proving “Actual Malice”

For Smartmatic to prevail, the voting firm must prove that key figures at Fox News were aware the allegations were false but allowed them to be aired regardless. Through legal motions, Smartmatic has pointed to internal communications showing hosts like Jeanine Pirro and Maria Bartiromo expressing doubt about the claims while also expressing a desire to help Trump.

Allen, Fox's lawyer countered that Smartmatic has “wildly inflated” its value and the projected damages from the coverage. Fox maintains its personalities were simply discussing newsworthy claims from the president's allies, not promoting them.

“This lawsuit really isn't about Fox's reporting of the 2020 election,” the Fox lawyer stated. “It's about Smartmatic's effort to seize on remarks made by the president's lawyers to rescue its financial livelihood.”

A Precedent Looms Large

Smartmatic's case strongly resemble the successful legal action brought by Dominion Voting Systems against Fox. In that case, a judge's summary judgment decisions proved critical, ruling that Fox's broadcasts were untrue and inherently damaging.

That ruling was later cited as a key factor in Fox's decision 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 legal defense at trial.

The Judge's Stance

The presiding judge offered no clear hints of his thinking but informed Smartmatic's lawyer that proving “actual malice” for a summary judgment would be a “difficult task.” He said he planned to examine all pertinent broadcasts before issuing his rulings.

“I think I have sufficient information, data, legal briefs, diagrams, charts and everything I need to make my ruling,” he told the two sides in the case.