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In a pivotal legal proceeding on Tuesday, a attorney for the voting technology company Smartmatic contended that senior executives at Fox News, including Rupert and Lachlan Murdoch, sanctioned a conscious plan to embrace false claims of election fraud promoted by Donald Trump.

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

A Massive Libel Case Hangs in the Balance

In courtroom presentations, 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 before a possible trial in the coming year. The company argues that Fox leaders hatched a plan to “shift” to the former president's allegations to win back disaffected viewers.

Fox's Vehement Denial

K Winn Allen, representing the network, strongly contested these claims. “No campaign of misinformation was ordered,” he said. “It is total bunk. The evidence does not support it. It is hogwash. It was fabricated by opposing counsel.”

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

The Central Challenge: Proving “Knowing Falsity”

For Smartmatic to prevail, the company will have to demonstrate that important personnel at Fox News were aware the fraud claims lacked truth but allowed them to be broadcast regardless. Through legal motions, Smartmatic cited 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 “wildly inflated” its worth and the estimated damages from the broadcasts. Fox contends its hosts were simply discussing newsworthy allegations from the president's associates, not promoting them.

“This suit really isn't about Fox's coverage of the 2020 election,” said Allen. “It concerns Smartmatic's attempt to capitalize on remarks made by the president's lawyers to salvage its business viability.”

A Precedent Looms Large

Smartmatic's case strongly resemble the prior 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 false and defamatory per se.

That ruling was later cited as a major reason in Fox's decision to resolve with Dominion for $787.5 million. A former Fox legal officer noted that the court's initial decisions had “hamstrung” the company's legal defense at trial.

Judge Cohen's Stance

Judge Cohen offered few hints of his leaning but informed Smartmatic's lawyer that proving “actual malice” for a pre-trial ruling would be a “difficult task.” He said he planned to review all pertinent broadcasts before making a decision.

“I believe I have more than enough material, data, briefings, charts, charts and all I need to reach a verdict,” he informed the two sides in the case.