By Ken Stone
U.S. District Judge Cynthia Bashant on Tuesday gave strong hints that she would dismiss a $10 million defamation lawsuit brought by San Diego’s Herring Networks, which owns OAN but has a relatively tiny cable audience.
Bashant took the case under submission and said she’d issue a decision in the “not too distant future.”
In a telephonic hearing, famed lawyer Theodore J. “Ted” Boutrous Jr. spoke on behalf of Maddow and her motion to dismiss the federal court case. Maddow herself didn’t speak, and MSNBC declined to comment on whether she listened in.
“This is exactly the kind of legally baseless defamation lawsuit targeting truthful speech and opinion about a public issue that California defamation law and the First Amendment and anti-SLAPP statutes forbid,” Boutrous said.
He called it a “classic example of nonactionable opinion based on truthful disclosed facts.”
MSNBC’s highest-rated host was merely exercising her free-speech right to express an opinion (“based on undisputed facts”) when she delivered a “single rhetorical flourish” and “colorful rhetorical hyperbole,” her legal team argued in filings.
Bashant opened the half-hour hearing by saying she didn’t think any question existed that Maddow’s remarks arose from “protected activity.”
“It was First Amendment free speech, so the burden shifts to the plaintiff to establish a probability of prevailing on the claims,” said the judge named to the federal bench by President Obama in 2013. “The real question I have is whether this was a statement of opinion … or one of fact.”
OAN founder Robert Herring and his sons Charles (network president) and Bobby heard the arguments in OAN’s Bay Ho offices.
“I did get the impression … that [Bashant] may be leaning towards the defendant,” Charles Herring said in a phone interview. “But sometimes she’s throwing out her best rhetorical argument supporting the other side and wants to see how it’s countered. I’m not going to try and make a guess.”
Said Robert Herring: “I heard the same thing you’re hearing — that it didn’t go in our favor.”
In a July 22, 2019, segment, the liberal lion called OAN “the most obsequiously pro-Trump right wing news outlet in America” and “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.”
(OAN’s lawsuit also accused 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.”)
The judge noted that Herring didn’t take issue with what most of what Maddow said on the broadcast.
In a 43-page motion to strike the complaint filed last September, Boutrous said:
“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.’”
Speaking for Herring was Los Angeles-based attorney Amnon Siegel.
He argued that Maddow didn’t make it clear that she was giving an opinion when she stated “very clearly and very firmly” that OAN is “really literally paid Russian propaganda.”
“That’s not an equivocal statement,” Siegel said as dozens [muting their phones under Bashant orders] listened in. He said the remarks weren’t accompanied by Maddow hints that she was giving her take.
“These opinion markers are important,” he said.
But Herring lost ammo for its arguments when Bashant disregarded a study by UC Santa Barbara linguistics professor Stefan Thomas Gries, who argued in a long analysis of Maddow’s on-air speech patterns that when she says “literally,” she means “in fact.”
“I don’t find the expert’s opinion very helpful,” Bashant said of Gries. She said his study wasn’t appropriate to consider at “this stage. And it’s my call on this issue, and I found the expert’s statements to be largely irrelevant, frankly.”
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. (SLAPP stands for “strategic lawsuit against public participation.”)
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.”
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.
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.”
Charles Herring said after the hearing that the question is whether Bashant was picking up the key legal arguments.
“Hopefully that is the case,” he said. “We believe from a legal standpoint the law is completely in our favor and the judgment should be favorable to us.”
The OAN president said he wants a jury to decide what Maddow meant.
“We gotta get over this little legal hump right now and then that will allow a fair trial to take place, and both the plaintiffs and the defendant will have their day in court,” he said.
If the case is dismissed, Robert Herring says he has a basis for appeal — “we’ll sit down with the attorneys and try and see what we’re going to do.” He added: “There were some things we were unhappy with, I can tell you that,” but declined to specify.
Charles Herring said his team studied Bashant and concluded she “probably leans toward more of a Rachel Maddow audience than a One America audience. … Hopefully, whatever bias she may or may not have she’ll leave at the door.”
A final decision on any appeal would be made by the Herrings, including the two sons, Charles said.
“What she [said] was completely wrong, and we demanded a retraction,” he said. “It’s unbelievable what they did. A simple retraction and correcting the record would have been sufficient for us.”
Updated at 3:23 p.m. May 19, 2020
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