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During a key court hearing on Tuesday, a lawyer for the voting technology firm Smartmatic contended that senior executives at Fox News, including Rupert and Lachlan Murdoch, authorized a conscious plan to embrace false assertions of election fraud promoted by Donald Trump.

“The conservative viewers, their bread and butter, deserted them,” declared J Erik Connolly, the company's attorney. “So what do they do? They return back to what they know best: they return back to disinformation, political propaganda and xenophobia. The election narrative and the fraud allegations were the perfect vehicle for them to return to their central messaging.”

A Multi-Billion Dollar Defamation Lawsuit Is at Stake

In oral arguments, both sides pleaded with Judge David B Cohen to decide on critical elements of Smartmatic's $2.7 billion defamation lawsuit ahead of a potential trial in the coming year. The company argues that Fox leaders devised a plan to “pivot” to the former president's allegations to win back disaffected viewers.

The Network's Strong Rebuttal

A lawyer for Fox News, speaking for the network, vigorously denied 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 is made up by lawyers on the other side.”

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

The Core Challenge: Proving “Knowing Falsity”

To win its case, the company will have to demonstrate that key figures at Fox News were aware the allegations were false but permitted them to be aired anyway. Through legal motions, Smartmatic has pointed to private messages showing personalities like Jeanine Pirro and Maria Bartiromo expressing doubt about the claims while also showing an interest to help Trump.

The network's attorney countered that Smartmatic has “grossly exaggerated” its worth and the estimated financial losses from the broadcasts. Fox maintains its personalities were simply reporting on newsworthy allegations from the president's allies, not endorsing 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 capitalize on comments made by the president's lawyers to rescue its business viability.”

A Previous Case Looms Large

The arguments closely mirror the prior defamation lawsuit brought by Dominion Voting Systems against Fox. In that matter, a judge's summary judgment decisions proved critical, ruling that Fox's statements were false and defamatory per se.

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

The Judge's Position

The presiding judge gave no clear hints of his thinking but informed Smartmatic's lawyer that establishing “actual malice” for a pre-trial ruling would be a “difficult task.” He said he planned to examine all pertinent broadcasts before issuing his rulings.

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