By Ken Stone
Rachel Maddow will be able to phone it in next month when a San Diego federal judge hears her lawyers’ arguments to throw out a defamation suit against the MSNBC star.
Citing the COVID-19 outbreak, Judge Cynthia Bashant issued an order Wednesday converting in-person arguments in the $10 million Herring Networks lawsuit to a “telephonic hearing” for the same time — 10:30 a.m. May 19.
“The parties and the public may access the hearing by calling the court’s teleconference number: (888) 557-8511 prior to 10:30 a.m.,” said the order. “When prompted, enter the access code, which is 6968297, followed by the pound sign (#).”Judge Bashant also has learned what millions have via Zoom and other online meetings: “Any members of the public that join the teleconference must mute their phones after joining.”
On March 16, Bashant delayed a March 26 hearing until May 19 — a Tuesday. (The original hearing was to have been Dec. 16.)
But Los Angeles-based attorney Amnon Siegel of Miller Barondess, representing plaintiff Herring, said late Thursday that the liberal commentator had not been expected to attend the San Diego hearing.
Maddow’s on-air statements were “utterly and completely false” because OAN “is wholly financed by the Herrings, an American family” and “has never been paid or received a penny from Russia or the Russian government,” the suit said.
Maddow — who turned 47 on April 1 — has a home in western Massachusetts and an apartment in Manhattan.
She made the statements during a July 22 segment of her show in which she cited a Daily Beast article stating that an OAN on-air reporter was “on the payroll for the Kremlin.”
In October, famed lawyer Theodore J. “Ted” Boutrous Jr. argued that the court should throw out the complaint, saying 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.
He cited the anti-SLAPP statute, first enacted in 1992, which allows targets of certain lawsuits to ask a court to dismiss a complaint when it involves the rights of petition and free speech. (SLAPP stands for “strategic lawsuit against public participation.”)
But UC Santa Barbara linguistics professor Stefan Thomas Gries argued that when Maddow says “literally,” she means “in fact.”
Gries, retained by Herring as an expert witness, says he reviewed the segment in question and concludes “it is very unlikely that an average or reasonable/ordinary viewer would consider the sentence in question to be a statement of opinion.”
On March 23, San Diego District Chief Judge Larry Alan Burns relaxed strict court rules against recording devices.
“In civil cases, the personal appearance of counsel, parties, witnesses or other noncourt personnel at proceedings, hearings or conferences is excused, unless they are ordered to appear in person by a judicial officer after the date this Order is signed,” Burns wrote.
“With the exception of jury trials, judges will retain discretion to schedule and hold proceedings, hearings and conferences telephonically or by video conferencing as permitted by law.”
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