Ninth Circuit Affirms MSNBC's Anti-SLAPP Motion Against OAN Network's Bullshit Defamation Lawsuit

from the opinion,-facts-still-protected-speech-because-duh dept

One America News (OAN) -- a "news" network apparently more "fair and balanced" than the extremely right-leaning Fox News -- sued MSNBC commentator Rachel Maddow for (factually) insinuating one of OAN's reporters had a side gig working for the Russian government. The OAN reporter, Kristian Rouz, also worked for Sputnik, the government-controlled Russian news outlet.

This report by Maddow came with the usual Maddow commentary, which included (protected!) opinions and the statement that Rouz was "literally paid Russian propaganda." This referred to Rouz's Sputnik work and cast serious shade on OAN's decision to bring the reporter on board with its network. A defamation lawsuit followed. And OAN lost.

The district court said the assertions were based on fact and everything else was protected opinion. The court signed off on MSNBC's anti-SLAPP motion, handing it a win. And with a the anti-SLAPP win came some fee-shifting, which led to OAN being ordered to pay more than $250,000 in legal fees.

OAN appealed. And it has lost again. The Ninth Circuit Court of Appeals says the lower court was right about everything. The Appeals Court [PDF] says California's anti-SLAPP law can be applied here, seeing as it closely aligns with federal options for dismissals and motions to strike. Having determined that, it makes quick work of OAN's appeal.

It is undisputed that Maddow’s challenged speech was an act in furtherance of her right to free speech. Therefore, the first step of the anti-SLAPP analysis is satisfied.

Undisputed.

And yet, OAN wants to dispute. Too bad, says the Ninth Circuit. There's no defamation here, something OAN seemingly conceded in its original complaint.

We agree with the district court’s conclusion that the broad context of Maddow’s show makes it more likely that her audiences will “expect her to use subjective language that comports with her political opinions.” Herring Networks, 445 F. Supp. 3d at 1050. It seems Herring agrees with this conclusion as well: Herring’s complaint characterizes Maddow as “a liberal television host,” and MSNBC’s cable programming as “liberal politics.” Although MSNBC produces news, Maddow’s show in particular is more than just stating the news—Maddow “is invited and encouraged to share her opinions with her viewers.” Id. at 1049. In turn, Maddow’s audience anticipates her effort “to persuade others to [her] position[] by use of epithets, fiery rhetoric or hyperbole.” Info. Control Corp. v. Genesis One Comput. Corp., 611 F.2d 781, 784 (9th Cir. 1980) (citation omitted). Therefore, the medium through which the contested statement was made supports Maddow’s argument that a reasonable viewer would not conclude the statement implies an assertion of fact.

It's all opinion, as OAN noted in its own complaint. And yet, it sued, claiming this opinionated host was slinging facts. The disputed facts can't even be disputed because the OAN reporter actually worked for a Russian government-funded news agency. That Maddow was undeniably pleased to be reporting and commenting on OAN's self-inflicted PR black eye makes no difference. If anything, it adds to Maddow's defense.

Maddow’s gleeful astonishment with The Daily Beast’s breaking news is apparent throughout the entire segment. Thus, at no point would a reasonable viewer understand Maddow to be breaking new news. The story of a Kremlin staffer on OAN’s payroll is the only objective fact Maddow shares.

And the court hands down this implicit reminder: when commenting on people likely to be litigious, show your work:

Maddow’s dialogue before and after the contested statement is solely a reiteration of the material in The Daily Beast article. At no point before the contested statement does Maddow “imply the existence of additional, undisclosed facts.” Instead, Maddow reports the undisputed facts and then transitions into providing “colorfully expressed” commentary.

Finally, the Ninth Circuit says even the procedural things OAN wanted to argue about (again) are mainly the network's own fault.

The district court did not abuse its discretion in dismissing the complaint without leave to amend because Herring never asked to amend, and if it had, amendment would have been futile. Moreover, contrary to Herring’s briefing, the district court’s rejection of Herring’s evidence, given the applicable Rule 12(b)(6) analysis, is not inconsistent with its conclusion that such evidence would not make a difference. Evidence can be both improperly proffered and unhelpful.

And that ends this case unless OAN thinks the Supreme Court is going to be more receptive to its arguments. Those arguments are, basically, opinion OAN doesn't like shouldn't be protected speech, and people shouldn't be allowed to report on undisputed facts that make OAN look bad. Hardly the sort of thing that's likely to upset Supreme Court precedent and long-held First Amendment protections for both opinions and factual statements.

Filed Under: 1st amendment, anti-slapp, california, defamation, free speech, kristian rouz, opinion, rachel maddow
Companies: msnbc, oan, sputnik

California Anti-SLAPP Law Gives Rachel Maddow An Early Exit From Conservative News Network's Bogus Libel Lawsuit

from the and-now-OAN-will-have-to-pay-her-legal-bills dept

The only news network further to the right than Fox News has just seen its baseless libel lawsuit against MSNBC host Rachel Maddow dismissed under California's anti-SLAPP law. While Fox occasionally has to acknowledge the real world and employs a few newscasters critical of the President and his policies, One American News Network (OAN/OANN) apparently feels no compunction to address any issues honestly, preferring to curl up in the lap of the leader of the free world.

OAN sued after Maddow offered her commentary on a Daily Beast article that said the news network employed a "Kremlin-paid journalist." The journalist, Kristian Rouz, had been working for both OAN and the Kremlin-owned Sputnik, the latter of which was determined to be a participant in Russia's 2016 election interference effort.

Maddow's commentary was somewhat hyperbolic, and very critical of OAN and its double-agent journalist. But OAN took particular issue with a single phrase Maddow said during her broadcast. From the decision [PDF]:

Maddow states, “there is a lot of news today, but among the giblets the news gods dropped off their plates for us to eat off the floor today, is the actual news that this super right-wing news outlet that the President has repeatedly endorsed . . . we literally learned today that that outlet the President is promoting shares staff with the Kremlin. I mean, what?” She laughs and soon after says, “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.” (emphasis added). The underlined portion of the sentence highlights where Plaintiff takes issue.

MSNBC filed an anti-SLAPP motion to strike the suit, pointing out OAN's effort was just an attempt to stifle Constitutionally protected speech. Anti-SLAPP laws allow for fee-shifting, which makes it riskier for plaintiffs to pursue bogus lawsuits. But it also shifts some of the burden of proof to the defendants, who must show the targeted speech is actually protected.

First, the court points out that Maddow's MSNBC segment isn't the straightforward readings of newsworthy happenings. It is very much slanted towards opinion, which Maddow offers liberally (in both senses of the word). Since viewers know what to expect from Maddow, it's unlikely they would take all of her commentary to be factual assertions.

Maddow does not keep her political views a secret, and therefore, audiences could expect her to use subjective language that comports with her political opinions. Thus, Maddow’s show is different than a typical news segment where anchors inform viewers about the daily news. The point of Maddow’s show is for her to provide the news but also to offer her opinions as to that news. Therefore, the Court finds that the medium of the alleged defamatory statement makes it more likely that a reasonable viewer would not conclude that the contested statement implies an assertion of objective fact.

There's also the context in which her statements were delivered, which includes her demeanor during the broadcast.

The “general tenor” of Maddow’s segment is a report on the Daily Beast article, and Maddow’s tone could be described as surprise and glee at the unexpectedness of the story. She begins by calling the story the “single most like sparkly story” in what had been “a more ridiculous than most day in the news.” She calls the news one among “the giblets the news gods dropped off their plates for us to eat off the floor today.” Maddow reports that OAN shares staff with the Kremlin and discusses the allegedly defamatory Russia connection, then follows this by saying (while laughing), “I mean, what?” She concludes the segment by saying, with a shake of the head, “I mean, this is the kind of news we are supposed to take in stride these days. And we do our best.”

As the court sees it, Maddow's piece accurately described the contents of the Daily Beast article, interspersed with her colorful interjections. Most of her coverage of OAN's Sputnik-employed journalist was "opinion and exaggeration." This includes the single sentence OAN sued over.

The court also points out the word "literally" no longer holds a single meaning, so relying on this word doesn't move OAN any closer to establishing its defamation claim.

Although Maddow used the word “literally,” this does not necessarily mean the phrase should be taken to be factual. Nowadays, as evidenced by the two conflicting definitions of the word “literally,” use of the word can be hyperbolic.

Even if "literally" were to be taken literally, it still wouldn't help OAN. The facts relayed by Maddow in her piece are indisputable. By that I mean OAN doesn't even dispute them. And as for Maddow's connection of OAN to Russian propaganda efforts, this was supported by her clarification and evidence from an outside source.

There is no dispute that Maddow discussed this article on her segment and accurately presented the article’s information. Indeed, the facts in the title of her segment are not alleged to be defamatory: “Staffer on Trump-favored network is on propaganda Kremlin payroll.” Plaintiff agrees that President Trump has praised OAN, and Rouz, a staffer for OAN, writes articles for Sputnik News which is affiliated with the Russian government. (See Compl. ¶ 24.) Rouz is paid for his work by Sputnik News. (Id. ¶ 26.) Maddow provided these facts in her segment before making the allegedly defamatory statement.

[...]

Further, in the sentence immediately following the contested sentence that OAN is “literally paid Russia propaganda,” Maddow said, almost as a clarification, that OAN’s “on-air U.S. politics reporter is paid by the Russian government to produce propaganda for that government.” And, at the time Maddow made the allegedly defamatory statement, the screen was showing the Daily Beast article accompanied by the text: “One of the on-air reporters at the 24-hour network is a Russian national on the payroll of the Kremlin’s official propaganda outlet, Sputnik.” Thus, Maddow immediately qualified the allegedly defamatory statement with a factual clarification and viewers were seeing accurate information regarding OAN on the screen while listening to Maddow.

That ends OAN's lawsuit. And the court will not give OAN another chance to engage in this dumbassery again.

Because there is no set of facts that could support a claim for defamation based on Maddow’s statement, the complaint is dismissed with prejudice.

With that, OAN is now on the hook for Maddow's legal fees, thanks to California's anti-SLAPP law. It's that simple. And it should be that way everywhere, which would head off the libel tourism we see on display in a handful of states. Giving defendants an early exit keeps them from being bled to death, and plaintiffs, who've had to pay their opponents' legal fees, will be less likely to use the federal court system vindictively to silence critics.

Filed Under: 1st amendment, anti-slapp, california, defamation, free speech, kristian rouz, rachel maddow
Companies: msnbc, oann