By Ken Stone
And it could happen as soon as Dec. 16, according to a motion filed Monday that cites California’s anti-SLAPP statute.
MSNBC’s highest-rated host was merely exercising her First Amendment right to express an opinion (“based on undisputed facts”) when she delivered a “single rhetorical flourish” and “colorful rhetorical hyperbole.”That was her July 22 comment that San Diego-based Herring Networks’ OAN — termed “the most obsequiously pro-Trump right wing news outlet in America” — is “paid Russian propaganda” because it employed a San Diego reporter also working for Sputnik, a Russian state-backed news outlet.
Maddow’s segment was based on a Daily Beast story by Kevin Poulsen headlined “Trump’s New Favorite Channel Employs Kremlin-Paid Journalist.”
In a 43-page motion to strike the complaint, famed lawyer Theodore J. “Ted” Boutrous Jr. said on behalf of Maddow and her employers, including Comcast:
“Plaintiff does not contest the facts reported by The Daily Beast. To the contrary, its Complaint confirms and elaborates on them, conceding that for more than four years, [Kristian Brunovich Rouz] has written approximately 1,300 articles for Sputnik and was paid about $11,500 per year for doing so … and that ‘Sputnik News is affiliated with the Russian government.’”
Boutrous argued that Maddow was clearly offering up her “own unique expression” of her views to capture what she saw as the “ridiculous” nature of the undisputed facts.
“Her comment, therefore, is a quintessential statement ‘of rhetorical hyperbole, incapable of being proved true or false,’” he said.
The anti-SLAPP statute, first enacted in 1992, allows targets of certain lawsuits to ask a court to dismiss a complaint when it involves the rights of petition and free speech.
“When viewed in context — as they must be — Ms. Maddow’s words make clear that, when she called this arrangement ‘paid Russian propaganda,’ she was expressing her opinion and astonishment that OAN has a paid staffer who also works for a Russian organization known for distributing pro-Kremlin propaganda,” Boutrous wrote.
Boutrous — whose Supreme Court arguments helped overturn California’s Proposition 8 law against same-sex marriage — says Maddow’s comment is fully protected opinion because it was based on disclosed facts and “does not imply any additional objective facts such that it is capable of being proven false.”
Third, he says, even if Maddow’s statement were determined not to be protected opinion under the First Amendment, owner Robert Herring’s suit is negated because his “own allegations confirm that it is substantially true: OAN’s reporter is actually paid by a Russian.”
“Because Ms. Maddow’s comment is substantially true even if viewed as fact, Plaintiff’s claim must be struck,” he said, noting that a defamation claim should be struck under anti-SLAPP statute where a statement was substantially true.According to the filing, lawyers for Maddow and Herring met Oct. 7 and talked about the prospect of the anti-SLAPP motion but couldn’t reach a resolution.
Herring attorney Skip Miller has called OAN a network “wholly owned, operated and financed by the Herring family in San Diego. They are as American as apple pie. They are not paid by Russia and have nothing to do with the Russian government.”
(His suit also accuses Comcast, which owns MSNBC, of refusing to carry OAN on its cable service “because it counters the liberal message of MSNBC,” an act the plaintiffs call “blatant censorship.”)
Even though the arguments are simple, Boutrous and fellow lawyers with Gibson, Dunn & Crutcher of Los Angeles are taking no chances, citing nearly four dozen cases to back their request for a Dec. 16 hearing or “as soon thereafter as this matter may be heard.”
Among them are landmarks in free-speech law — New York Times v. Sullivan and Hustler Magazine Inc. v. Falwell. Also cited: Citizens United v. FEC, where the Supreme Court said: “Political speech must prevail against laws that would suppress it.”
SLAPP stands for “strategic lawsuit against public participation.”
The law opens with the statement: “The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”
Lawmakers wanted to find a way to keep people from being “chilled through abuse of the judicial process.”
On Oct. 8, Boutrous was joined by Gibson, Dunn entertainment law expert Scott A. Edelman, who frequents lists like “Best Lawyers in America.”
Also representing Maddow are Theane Evangelis, a former law clerk to Justice Sandra Day O’Connor, and Nathaniel L. Bach, who successfully defended NBCUniversal in a $150 million case involving the “Law & Order” TV series.
In 2018, Evangelis was selected by The American Lawyer as a Litigator of the Week based on her win on behalf of Grubhub in the first federal case regarding the classification of workers in the “gig” economy, says a long professional biography.
Overseeing the case in downtown federal court is 59-year-old Judge Cynthia Bashant, nominated in 2013 by President Obama.
Boutrous is busy with other cases as well.
His bio says he’s still handling a lawsuit on behalf of “Ashley Judd against Harvey Weinstein seeking redress for the career-changing harm Mr. Weinstein caused when he defamed Judd to filmmakers in retaliation against Ms. Judd for having rejected Mr. Weinstein’s sexual advances.”
His trip to San Diego will be a homecoming of sorts.
Boutrous in 1987 graduated summa cum laude from the University of San Diego School of Law, where he was valedictorian and editor-in-chief of the San Diego Law Review.
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