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Rachel Maddow Wins Dismissal of OAN Defamation Suit Under Anti-SLAPP Statute

By Nicole Ligon and Shira Levine

In May, the Southern District of California issued its opinion in Herring Networks, Inc. v. Maddow, No. 19-cv-1713 (May 22, 2020). Herring Networks – the parent company of One America News Network ("OAN") – brought suit against Rachel Maddow for an allegedly defamatory statement she made on her talk show, The Rachel Maddow Show. Maddow moved to strike the complaint under California's anti-SLAPP law, Cal. Civ. Proc. Code § 425.16. Granting Maddow's motion, the Court found that the statement at issue was inactionable as opinion and was otherwise based on accurately disclosed facts.

Background

The plaintiff, Herring Networks Inc., owns and operates conservative news outlet One America News Network ("OAN"). In 2019, The Daily Beast published a story claiming that one of OAN's reporters was simultaneously working for the Kremlin-owned news outlet Sputnik. The article suggested that this dual employment created an ethical conflict, but that OAN nonetheless permitted the reporter to espouse views that aligned with Russian propaganda while working on their own U.S. politics stories.

On the same day that The Daily Beast ran its article, Rachel Maddow discussed the piece on her talk show in a segment entitled "Staffer on Trump Favored Network Is on Propaganda Kremlin Payroll." As a picture of the article flashed on the television screen, Maddow specifically stated that: "[T]he most obsequiously pro-Trump right wing news outlet in American really literally is paid Russian propaganda." OAN's parent company sued Maddow and her employers, alleging that this statement is defamatory. In turn, Maddow filed a motion to strike pursuant to California's anti-SLAPP law.

Anti-SLAPP laws are enacted to provide defendants with efficient procedural remedies to dispose of lawsuits that are brought to chill their valid exercise of constitutional rights. Rusheen v. Cohen, 37 Cal. 1048, 1055–56 (2006). California's anti-SLAPP statute is particularly strong. Pursuant to Cal. Civ. Proc. Code § 425.16, California courts use a two-step process to determine whether to grant an anti-SLAPP motion to strike. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action arises from protected activity, such as free speech made in connection with the public interest or a public issue. Navellier v. Sletten, 29 Cal. 4th 82, 88 (2002). If this prong is met, the burden then shifts to the plaintiff to show that there is a probability that the claim will prevail. Id. If the plaintiff cannot make such a showing, the court will grant the motion.

Court Ruling

The Southern District of California granted Maddow's motion to strike and dismissed the complaint with prejudice. The Court ultimately found that Maddow's statement constituted protected opinion and was otherwise a substantially true account based on disclosed facts.

In turning to the two-step analysis under California's anti-SLAPP law, the defendants had the initial burden to show that Maddow's complained-of actions arose from protected activity. The parties agreed that the first prong was met; Maddow's statement on her talk show was an exercise of free speech concerned with a public issue. The burden then shifted to the plaintiff to show a reasonable probability of succeeding on the defamation claim. To meet this burden, the plaintiff argued that Maddow knowingly made a statement of fact that was intentionally misleading. The defendants responded by claiming that Maddow made a statement of opinion not fact and thus could not be defamatory. The defendants also argued that to the extent the statement could be deemed factual in nature, it was substantially true and based on disclosed facts.

In considering the arguments, the Court first examined whether Maddow's statement constituted opinion or fact. Opinions are incapable of being proven true or false and therefore cannot form the basis for a defamation claim. In determining whether a statement is an opinion or fact, California federal courts must look to the "totality of the circumstances." To do so, the Court here began by looking at the broad context in which the statement was made, and then evaluated the statement's specific context.

Considering the broad context of the statement, the Court found that the allegedly defamatory comment was made on a left-leaning talk show where Maddow is invited and encouraged to share her opinions with her viewers. On this basis, reasonable viewers expect Maddow to use subjective language that comports with her political opinions. In other words, Maddow's show is different than a typical news segment; it is a less formal medium that gives rise to colorful commentary and opinions. Indeed, the Court noted, Maddow's preceding remarks included hyperbolic and exaggerated lead-ins like claiming the article concerned "the single most like sparkly story" and that the piece contributed to "a more ridiculous than most day than most in the news." These considerations led the Court to conclude that the broad context suggests the statement at issue constitutes opinion.

The Court then evaluated the specific context of the statement. This requires an examination into whether the actual language used is "loose, figurative, or hyperbolic" as opposed to objective and factual in nature. Hyperbolic statements are not actionable because they are not understood to relay facts. To evaluate this, the Court specifically considered if Maddow's use of the word "literally" in the statement that OAN "literally is paid Russian propaganda" suggested that the statement was conveying actual facts. Applying a textual analysis, the Court turned to the dictionary definitions of the term "literally" and found that it had two conflicting meanings. On the one hand, the term could be used to "emphasize the truth and accuracy of a statement or description." On the other hand, the term could mean "virtually" and be "used in an exaggerated way to emphasize a statement or description that is not literally true." The Court adopted the second definition here on the basis that the surrounding statements included colorful commentary, which suggested that Maddow's statement was opinion and not fact.

The Court also considered whether the statement at issue is susceptible to being proven true or false. In so doing, the Court explained that even if Maddow's statements made during the segment could be determined to imply facts, Maddow disclosed her source – The Daily Beast – and accurately presented the article's information. For these reasons, Maddow could not be held liable for defamation.

Accordingly, the Court concluded that the plaintiff's failed to satisfy the second prong of California's anti-SLAPP law: establishing a probability of prevailing on the claim. Consistent with the statute, the Court granted Maddow's motion to strike the complaint with prejudice. The amount of attorney's fees that Maddow will be awarded remains to be determined.

Nicole Ligon is the Supervising Attorney of the First Amendment Clinic at Duke Law School. Shira Levine is a rising second-year Duke Law student from Rye Brook, New York.

 
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