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Herring Networks, Inc. v. Rachel Maddow

District court dismisses defamation claim under California anti-SLAPP law, finding Rachel Maddow’s statement on MSNBC that One America News “really literally is paid Russian propaganda” is opinion that cannot serve as basis for defamation claim. 

Plaintiff Herring Networks Inc., the owner and operator of One America News Network (OAN), sued Rachel Maddow, Comcast Corporation, NBCUniversal Media LLC, and MSNBC for defamation over Maddow’s on-air statement that OAN “really literally is paid Russian propaganda.” Maddow made her statement in a segment on her talk show—The Rachel Maddow Show—discussing an article by reporter Kevin Poulsen published on July 22, 2019, in The Daily Beast titled “Trump’s New Favorite Channel Employs Kremlin-Paid Journalist.” Poulsen reported that Kristian Rouz, one of the U.S. politics reporters at OAN, has been simultaneously writing for Sputnik, a Kremlin-owned newswire that played a role in Russia’s 2016 election interference operation. Poulsen concluded that Rouz is “on the payroll of the Kremlin’s official propaganda outlet, Sputnik,” and opined that “Kremlin propaganda sometimes sneaks into Rouz’s [OAN] segments on unrelated matters.”

The day Poulsen’s article was published, Maddow discussed it on her talk show in a segment titled “Staffer on Trump-favored network is on propaganda Kremlin payroll.” Maddow opened the segment by explaining that OAN’s programming is aimed at “Trump mega-fans” and that President Donald Trump has praised OAN’s ratings and given OAN a press pass to the White House. Maddow then went on to discuss Poulsen’s article, stating that it reports that OAN, which is “Trump’s favorite, more Trump-ier than Fox TV network[,] . . . has a full-time on-air reporter who covers U.S. politics, who is also simultaneously on the payroll of the Kremlin,” laughing and continuing, “In this case, the most obsequiously pro-Trump right-wing news outlet in America really literally is paid Russian propaganda. Their on-air U.S. politics reporter is paid by the Russian government to produce propaganda for that government.” Plaintiff sued for defamation over Maddow’s statement that OAN “really literally is paid Russian propaganda.”

Defendants moved to strike under California’s Anti-Strategic Lawsuits Against Public Participation (Anti-SLAPP) law, which provides that a “cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”  

Because defendants’ motion to strike was based entirely on legal arguments, without alternate facts to challenge the allegations in the complaint, the court treated it as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Plaintiff moved ex parte to submit additional evidence in support of its complaint, and advocated at oral argument for defendants’ motion to be converted to a motion for summary judgment so that the court could consider the additional evidence. The court denied plaintiff’s motion.

In order to prevail, defendants had the initial burden to establish that Maddow’s statement arose from one of four categories of protected activity. Plaintiff did not contest that this requirement had been met, agreeing that Maddow was exercising her constitutional right of free speech and that her statements concerned a public issue. Thus, the district court considered only the second prong of the analysis, namely, whether plaintiff established a probability of prevailing on its defamation claim. 

The district court explained that under California law, defamation “involves the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage.” Defendants argued that plaintiff could not prevail on the merits of its claim because Maddow’s allegedly defamatory statement was opinion, not fact. To determine whether Maddow’s statement implied a factual assertion, the district court examined the “totality of the circumstances” in which the statement was made, according to three factors: 1) broad context, 2) specific context and 3) susceptibility of being proved true or false.

Looking at the broad context, the district court first considered the medium and forum in which the statement was made—on Maddow’s talk show segment that airs on MSNBC. The court reasoned that although a viewer who watches news channels such as MSNBC tunes in for facts and the goings-on of the world, Maddow’s show is different from a typical news segment because she shares her opinions on the news with her viewers. Indeed, plaintiff alleged in its complaint that viewers who watch MSNBC may know that it carries a liberal message, and that Maddow is a liberal television host who expresses her views regarding Russia and President Trump. With respect to Maddow’s “Trump’s New Favorite Channel Employs Kremlin-Paid Journalist” segment as a whole, analogizing to the Ninth Circuit’s 1995 decision in Partington v. Bugliosi, the district court found that Maddow “fairly describe[d]” Poulsen’s article and added subjective language that comports with her political opinions, as audiences expect her to do when watching her show. The court concluded that the broad context weighed in favor of a finding that the allegedly defamatory statement was opinion.

With respect to specific context, the district court considered the extent of figurative or hyperbolic language used by Maddow, weighed against a determination that a statement is fact, and the reasonable expectations of the audience in that particular situation. Plaintiff argued that because Maddow used the word “literally,” it would be unreasonable to find the statement to be hyperbolic. The district court rejected this argument, concluding that today, the word “literally” has conflicting definitions, one of which provides for hyperbolic use—“an exaggerated way to emphasize a statement or description that is not literally true or possible.”  

To resolve this definitional ambiguity, the court considered the surrounding language, again citing Partington for the premise that when a speaker outlines the factual basis for a conclusion, the statement is protected by the First Amendment. Plaintiff did not dispute the veracity of the facts Maddow provided in her segment prior to making the allegedly defamatory statement—namely, that President Trump praised OAN and that Rouz is a staffer for OAN and writes articles for Sputnik News, which is affiliated with the Russian government. Rejecting plaintiff’s argument that Maddow failed to include the additional facts that Rouz has no decision-making authority with respect to the content that is aired on OAN and was merely a freelancer for Sputnik News, the court concluded that Maddow accurately presented Poulsen’s article and the basis for her statements; that these facts were true and not misleading; and that even if Maddow left out certain information, she did not “impl[y] a knowledge of facts which lead to the conclusion” that her statement was factual. Moreover, the Daily Beast article was displayed on the screen when Maddow made the allegedly defamatory statement, ensuring that viewers were seeing factual information simultaneously while Maddow expressed her opinion. The court concluded that in light of specific context surrounding Maddow’s comment, a reasonable viewer would not actually think OAN is paid Russian propaganda; therefore, this factor weighed in favor of a finding that the statement is opinion.

With respect to whether the statement itself is sufficiently factual to be susceptible to being proven true or false, the district court explained that because the statement that OAN is “literally paid Russia propaganda” is capable of verification, this factor weighs in favor of a finding that viewers could conclude that the statement implied an assertion of objective fact. Nevertheless, the court concluded that in light of the other two factors, considering the totality of the circumstances, a reasonable fact-finder could conclude only that Maddow’s statement was one of opinion, not fact.

Summary prepared by Melanie Howard and Nathalie Russell