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.
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.