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During a key legal proceeding on Tuesday, a lawyer for the voting technology company Smartmatic contended that top leaders at Fox News, including Rupert and Lachlan Murdoch, sanctioned a deliberate strategy to embrace baseless claims of voting fraud championed by Donald Trump.

“The conservative viewers, their primary audience, deserted them,” stated J Erik Connolly, Smartmatic's lawyer. “What was their response? They return back to what they know best: they go back to disinformation, pro-Trump propaganda and xenophobia. The election story and the fraud allegations was the perfect vehicle for them to get back onto their central messaging.”

A Massive Defamation Case Is at Stake

In oral arguments, both sides urged with the New York state supreme court judge David B Cohen to decide on essential aspects of Smartmatic's $2.7bn legal action ahead of a possible trial in the coming 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

A lawyer for Fox News, representing the network, strongly contested these accusations. “No campaign of misinformation was authorized,” he said. “It is total bunk. It is not supported by the record. It is nonsense. It was fabricated by opposing counsel.”

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

The Central Legal Hurdle: Proving “Knowing Falsity”

For Smartmatic to prevail, the company will have to demonstrate that key figures at Fox News knew the fraud claims were false but allowed them to be aired regardless. In its filings, Smartmatic has pointed to internal communications showing hosts like Jeanine Pirro and Maria Bartiromo voicing skepticism about the claims while also showing an interest to help Trump.

Allen, Fox's lawyer argued that Smartmatic has “wildly inflated” its value and the projected damages from the broadcasts. Fox maintains its personalities were simply discussing newsworthy allegations 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 remarks made by the president's lawyers to rescue its financial livelihood.”

A Precedent Is Highly Relevant

Smartmatic's case strongly resemble the successful defamation lawsuit brought by Dominion Voting Systems against Fox. In that case, a judge's summary judgment decisions were decisive, finding that Fox's statements were false and defamatory per se.

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

Judge Cohen's Position

Judge Cohen offered no clear indications of his thinking but told Smartmatic's lawyer that establishing “knowledge of falsity” for a pre-trial ruling would be a “hard sell.” He said he intended to review all pertinent television segments before making a decision.

“I believe I have sufficient material, data, legal briefs, charts, graphs and all I need to make my ruling,” he informed the parties in the case.