By Ken Stone
But Monday, when her MSNBC colleague Chris Matthews accidentally referred to OAN as “Russian-owned,” he almost immediately added: “Maybe it’s not Russian-owned, but of that point of view.”After a commercial break, Matthews, 73, elaborated, calling OAN “the news to the right of Fox News Network. I thought that was Russian-owned; it’s owned by an American so I’ll straighten that out right now. I just did, anyway.”
On Wednesday, lawyers for Herring Networks, owner of OAN, cited the Matthews miscue as evidence in their defamation suit against Maddow and employers Comcast, NBC Universal and MSNBC.
“This reiteration of Maddow’s claim on the same network demonstrates that Maddow’s original statement was intended to be and, in fact, was understood literally and factually,” wrote Amnon Siegel, a Los Angeles lawyer for Herring.
By retracting the statement, the “Hardball” host showed that MSNBC knew “the falsity of Maddow’s statement,” Siegel said ahead of a possible Monday hearing in downtown federal court.
Lawyers for Maddow, 46, have asked a San Diego federal judge to throw out the case, and Herring is opposing that “strike” motion.
In the “new-evidence” filing, Siegel said his client wouldn’t have sued Maddow had she issued an on-air retraction as Matthews did.
But Maddow lawyer Nathaniel “Nat” L. Bach is opposing the effort to add Matthews’ remarks to the case.
“Mr. Matthews’s statement and immediate clarification on his show last night are not relevant to the understanding and context of Ms. Maddow’s different statement four months earlier,” Bach wrote Tuesday, citing a court case that “precludes the submission and consideration of evidence to oppose an anti‐SLAPP motion that has been brought on the basis of a complaint’s legal deficiencies, as here.”
On Tuesday, Siegel cited the Matthews walk-back in a response to Times of San Diego queries. He said via email that the “false [Maddow] statement has now been perpetuated by another reporter on MSNBC in an apparent coordinated attack on OAN.”
In a separate filing Monday, Maddow lawyer Theodore J. Boutrous Jr. mocked “as much wasted breath” an earlier response by Herring that cited an academic analysis of Maddow comments.
UC Santa Barbara linguistics professor Stefan Thomas Gries, in a 20-page review of Maddow’s speech patterns, argued that when Maddow said “literally,” she was taken to mean “in fact.”
But Boutrous said Maddow was using another meaning of the word “literally,” citing a Merriam-Webster Online Dictionary that said “literally” means “in effect: VIRTUALLY — used in an exaggerated way to emphasize a statement or description that is not literally true or possible.”
In any case, Boutrous said the Gries report isn’t admissible in defamation cases. He also said it’s clear that Maddow was merely expressing an opinion about facts, not introducing new ones.
“The video and transcript of Ms. Maddow’s segment demonstrate how closely she tied her opinion to its source,” Boutrous said. “Ms. Maddow introduces her segment by showing a snapshot of The Daily Beast article, which clearly states that it was written by Kevin Poulsen and published that same day, July 22, 2019. Even as Ms. Maddow is making her statement that OAN ‘really literally is paid Russian propaganda,’ the picture and text call-out of The Daily Beast article are still up on the screen.”
Citing a 1991 case called Masson v. New Yorker Magazine Inc., Boutrous wrote Judge Cynthia Bashant: “Even if Maddow’s statement could be considered factual, a statement is not defamatory if ‘the substance of the charge [is] proved true.’”
NBC Universal didn’t immediately respond to a request for comment.
The Matthews segment that mentioned OAN was about Rudy Giuliani, the personal lawyer of President Trump, and his recent visit to Ukraine to meet with former Ukrainian prosecutors.
A week ago, Giuliani denounced Fox News weekend host Steve Hilton, who called the former New York City mayor an “unmitigated and unethical disaster” on his Sunday show and urged the president to dump him and other “toxic chumps.”
Giuliani threatened Hilton with a lawsuit.
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