Jan Wolfe and Helen Coster

(Reuters) – Did Rupert and Lachlan Murdoch influence Fox News’ coverage of claims about two voting technology companies — knowing that those claims were false?

This question has been raised in defamation suits filed against Fox News by Smartmatic, Dominion Voting Systems Corp and Fox Corp. Plaintiffs have sought more than $4Billion in damages to the media giant. This includes on-air talent like Maria Bartiromo as well guests such Rudy Giuliani or Sidney Powell. These lawyers are aligned with ex-US President Donald Trump.

Dominion, Smartmatic, and Rupert Murdoch (Fox Corp Chairman) are looking for communications to show that Fox News was either aware of false statements or acting with reckless disregard.

That is the standard of “actual malice,” which public figures must prove in order to prevail in defamation cases.

It is just one component of Dominion and Smartmatic’s efforts to show that Fox News, hosts and guests either knew or should have known they were amplifying bogus claims. Also, the voting companies have alleged that those who claimed they were false on air knew or ignored obvious evidence.

Fox News moved to dismiss all the lawsuits. It claimed that it covered matters of primary public concern and that the First Amendment protects this coverage.

Fox News representatives declined to comment for the company or Bartiromo. Fox Corp’s representative and Bartiromo’s lawyers didn’t respond to our requests for comment. A Powell lawyer stated that the suits were “without merit”.

Bartiromo Powell, Giuliani and other defendants have argued, in court filings, that they were free to express themselves as allowed by the First Amendment.

Trump allies such as Giuliani, who is a Republican appeared on Fox News to falsely claim that Dominion, Smartmatic, and Smartmatic may have altered vote counts for Democratic rival Joe Biden.

Other Fox News coverage after the election refuted those claims, as did two Murdoch-controlled newspapers — the Wall Street Journal and the New York Post.

Smartmatic and Dominion claim that Fox News’ coverage of the Wall Street Journal, and New York Post are evidence that Fox News amplified conspiracy theories about election results that its leaders knew or ought to have known were false.

“It demonstrates the availability of accurate information that the defendants chose to ignore,” said Erik Connolly, a lawyer for Smartmatic, in an interview. “It wasn’t that hard for them to figure out that what they were saying was inaccurate.”

In a Nov. 8 court filing, Dominion alleged that the Murdochs “intentionally disregarded the facts in their own newspaper and did nothing to stop Fox’s dissemination of lies about Dominion.”

Legal experts say that there does not appear to be precedent for Dominion and Smartmatic’s strategy of showing actual malice in part by seeking communication from top executives, and that their efforts to hold guests and hosts accountable is a more traditional strategy.

Fox News has stated that the actual malice of an individual who claims to have made allegations about the election’s outcome depends on their mental state. In its motion to dismiss Dominion’s lawsuit, Fox News lawyers cited a 2013 case from the U.S. Court of Appeals for the Second Circuit. According to that court, if several people are involved in an organization publishing an allegedly defamatory message, the plaintiff has to prove that the responsible person for that publication acted with actual malice.

Lyrissa Lidsky, a media law scholar and the dean of the University of Missouri School of Law, said the plaintiffs’ strategy of seeking the Murdochs’ communication is unusual because the owner of a newspaper, for example, does not typically make the day-to-day decisions about what to publish and therefore would not know if a statement was false or was made with reckless disregard for its falsity.

Smartmatic and Dominion will seek out emails and any other information if the case survives the motions for dismissal. This is according to four legal experts.

Dominion claimed in a September court filing it requested Fox News internal documents. This included emails, texts messages and notes between Fox employees who created segments about Dominion. On Dec. 8, an unnamed Fox representative gave testimony about internal communication systems at the company.

It is possible that Fox executives may have put in writing communication that could be used against them in these cases, says William & Mary Law School professor Timothy Zick.

“This strikes me as relevant evidence — something the plaintiffs will likely be entitled to,” Zick said.