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In a key court hearing on Tuesday, a attorney for the voting technology company Smartmatic argued that top leaders at Fox News, specifically Rupert and Lachlan Murdoch, sanctioned a deliberate plan to embrace baseless claims of election fraud championed by Donald Trump.

“Their core viewers, their primary audience, abandoned them,” declared J Erik Connolly, Smartmatic's lawyer. “So what do they do? They revert to what they know best: they return back to misinformation, political propaganda and xenophobia. The election story and the election fraud claims was the perfect tool for them to return to their core messaging.”

A Massive Defamation Lawsuit Hangs in the Balance

In oral arguments, both parties pleaded with Judge David B Cohen to rule on essential elements of Smartmatic's $2.7bn defamation lawsuit before a potential trial next year. The plaintiff argues that Fox executives devised a plan to “pivot” to the former president's allegations to win back disaffected viewers.

The Network's Strong Denial

A lawyer for Fox News, speaking for the network, strongly contested these accusations. “No disinformation campaign was authorized,” he stated. “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 ultimately controlled the network, “issued no directives to cover Smartmatic or the fraud claims.”

The Central Legal Hurdle: Proving “Actual Malice”

For Smartmatic to prevail, the company will have to demonstrate that important personnel at Fox News were aware the allegations lacked truth but allowed them to be broadcast anyway. Through legal motions, Smartmatic cited 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 worth and the projected damages from the coverage. Fox contends its hosts were merely discussing newsworthy claims from the president's associates, not endorsing them.

“This suit 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 rescue its business viability.”

A Precedent Looms Large

The arguments strongly resemble the prior defamation lawsuit brought by Dominion Voting Systems against Fox. In that case, a judge's pre-trial rulings were decisive, finding that Fox's broadcasts were untrue and inherently damaging.

That legal decision was later cited as a key factor in Fox's decision to settle with Dominion for $787.5 million. A previous Fox legal officer remarked that the court's initial decisions had “hamstrung” the company's legal defense at trial.

Judge Cohen's Stance

The presiding judge gave few indications of his leaning but told Smartmatic's lawyer that establishing “actual malice” for a pre-trial ruling would be a “difficult task.” He said he intended to examine all pertinent television segments before making a decision.

“I think I have sufficient material, evidence, briefings, diagrams, graphs and all I need to make my ruling,” he told the parties in the lawsuit.