Rupert and Lachlan Murdoch authorized a plan for Fox News to embrace Donald Trump’s false claims of election fraud in 2020 in a bid to win back viewers angry with the network, a lawyer for the voting technology company Smartmatic argued on Tuesday.
“The conservative viewers, their bread and butter, abandoned them,” J Erik Connolly told the New York state supreme court judge David B Cohen. “So what do they do? They return back to what they know best: they return back to disinformation, pro-Trump propaganda and xenophobia. The election story and the election fraud claims was the perfect vehicle for them to get back onto their core messaging.”
During oral arguments in a Manhattan courtroom on Tuesday afternoon, both sides pleaded with the judge to decide key aspects of the case – Smartmatic’s $2.7bn defamation lawsuit against Fox – in their favor before a potential trial next year.
Connolly laid out the argument the company has been making since it filed the suit in early 2021: that Fox executives hatched a plan to “pivot” to embrace Donald Trump’s claims of a stolen election in a bid to win back pro-Trump viewers who had grown frustrated with the network for calling the state of Arizona for Joe Biden on election night.
K Winn Allen, a lawyer for Fox News, strongly contested Smartmatic’s claims about the Murdochs. “No disinformation campaign was ordered,” he said. “It is total bunk. It is not supported by the record. It is hogwash. It is made up by lawyers on the other side.”
He said that Rupert and Lachlan Murdoch, who ultimately controlled the news network, serving as chair and executive chair of its parent, Fox Corporation, at the time, “didn’t give anyone any orders to cover Smartmatic or the election fraud allegations”.
In depositions for the case, both Rupert Murdoch, who stepped down as chair of Fox two years ago, and Lachlan Murdoch, who remains the firm’s executive chair and CEO, denied they encouraged Fox News to air election fraud claims.
To prevail in the case, Smartmatic will have to prove that key figures at Fox News knew the claims of election fraud being aired on the network – both by hosts and guests – were false but allowed them to be broadcast anyway.
To help make their case for summary judgment, Smartmatic littered its motions with examples of Fox employees expressing doubt about the fraud claims and talking dismissively about two figures who made many of the comments at issue, lawyers Rudy Giuliani and Sidney Powell. In the motions, Smartmatic included internal communications showing that several Fox hosts – including Jeanine Pirro and Maria Bartiromo – expressed a desire to help Trump.
Allen spent much of his 45-minute-long presentation arguing that Smartmatic has wildly inflated its value and made up improbable estimates of how much money it lost — and will lose in the future — because of Fox’s broadcasts.
Fox has long argued that its hosts were merely discussing newsworthy allegations made by then-associates of the president, not endorsing them, or repeating them, out of a desire to harm Smartmatic’s business.
“This suit really isn’t about Fox’s coverage of the 2020 election,” Allen said. “It’s about Smartmatic’s attempt to seize on comments made by the president’s lawyers to salvage its financial livelihood.”
While Smartmatic asked the judge to make several pre-trial rulings in its favor, the company has said — and re-iterated again Tuesday — that it should be up to a jury to decide how much money the company should receive in damages.
Cohen did not give any indications about which way he was leaning, but told Smartmatic’s lawyer that it would be a “hard sell” for him to grant summary judgment on the legal standard known as actual malice, which would mean he was convinced that Fox personnel knew the election claims were false, or had reason to believe they were very likely false.
The judge said he planned to review all of the television broadcasts at issue in the case before issuing his rulings. “I think I have more than enough information, data, briefings, charts, graphs and everything I need to make my ruling,” he told the parties.
The crux of the argument that Smartmatic has made mirrored the case made by another voting technology company, Dominion Voting Systems, in its own defamation lawsuit against Fox. In that case, the judge’s ruling on similar motions for summary judgment proved critical. The Delaware superior court judge Eric M Davis had ruled that the statements made on Fox were false and were defamatory per se, meaning obviously damaging to Dominion’s reputation.
Viet D Dinh, who served as Fox’s chief legal and policy officer, later said that Davis’s pre-trial rulings had “hamstrung” the company and factored into its decision to pay $787.5m to settle the case in April 2023 and avert a trial.
“We knew we were right in the law, [but] the trial judge put us in a situation increasingly where it was very obvious that we were not able to win the trial, but we were very confident we would prevail on appeal,” said Dinh.
