By Ken Stone
A San Diego federal judge Friday dismissed a $10 million defamation lawsuit filed by the owners and operators of San Diego-based One America News Network against MSNBC and political commentator Rachel Maddow.
Last summer, the liberal host told her viewers that the Trump-friendly conservative network “really literally is paid Russian propaganda.”
U.S. District Judge Cynthia Bashant dismissed Herring Networks’ suit with prejudice, ruling “there is no set of facts that could support a claim for defamation based on Maddow’s statement,” made during a July 22, 2019, segment of her show.Robert Herring Sr., the 78-year-old owner and founder of the Trump-friendly network based in San Diego, told Times of San Diego that he would appeal the ruling.
Was he surprised?
“After I’ve seen several things that [Bashant’s] said and some of the things she’s done in the past, I wasn’t surprised at all,” Herring said.
MSNBC and Maddow’s attorneys didn’t immediately respond to a request for comment.
Three days after hearing oral arguments in the case, Bashant said in her dismissal order that the contested statement can’t serve as the basis for a defamation claim.
“Plaintiff has not shown a probability of succeeding on its defamation claims, thus the Court grants defendants’ special motion to strike,” she wrote.
Amnon Siegel, a Herring attorney who argued the case Tuesday, said Friday: “Honestly, we like our chances [with the 9th U.S. Circuit Court of Appeals]. We look forward to an opportunity to get our day in court.”
He called the basis for an appeal “pretty straightforward.”
“We think the decision doesn’t squarely tackle the falsity of the [Russian propaganda] statement that was made here and the harm that it did to the business,” Siegel said in a phone interview.
He said the only way Bashant is allowed to halt the case, before reaching a jury, is if she concludes no reasonable person can conclude Maddow made a statement of fact.
“If there’s any question, any ambiguity, if it’s a close call at all, she’s supposed to let the case go to the jury,” Siegel said.
“I think Judge Bashant kind of saw it her way. But her job is to decide whether any reasonable person could conclude that it was a statement of fact. Not to give her personal take.”
Siegel hasn’t detailed how OAN was hurt financially but said the jury has a right to decide the right amount of money to compensate OAN “regardless of any specific proof of actual harm.”
“You’re basically saying this is not a legitimate news agency, that they are being paid by Russia for favorable content and they are controlled and operated by the Russian government,” he said.
Bashant’s ruling also means Herring Networks has to pay Maddow’s attorneys fees. Defendants were represented by attorneys Ted Boutrous Jr., Scott Edelman, Nathaniel Bach and Theane Kapur of Los Angeles-based Gibson Dunn.
In the July segment, Maddow cited a Daily Beast article stating that an OAN on-air reporter was “on the payroll for the Kremlin.”
Herring Networks’ court papers say the reporter, Kristian Rouz, is originally from the Ukraine and started his journalism career by writing articles for Sputnik News, which is affiliated with the Russian government. According to Herring Networks, Rouz was merely a freelancer for Sputnik who selected his own article topics for submission, and his work there had no significance toward his work for OAN.
Herring Networks alleged in the lawsuit filed last fall that Maddow made “utterly and completely false” statements 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.”
Bashant ruled that Maddow’s statement “is an opinion that cannot serve as the basis for a defamation claim,” and thus is protected under the First Amendment.
The judge ruled that most viewers would be able to conclude that Maddow was forwarding her opinion when she made the July 22 statements.
“For her to exaggerate the facts and call OAN Russian propaganda was consistent with her tone up to that point, and the court finds a reasonable viewer would not take the statement as factual given this context,” Bashant wrote. “The context of Maddow’s statement shows reasonable viewers would consider the contested statement to be opinion.”
Bashant said Maddow’s show is different from a typical news segment where anchors inform viewers about the daily news.
“The point of Maddow’s show is for her to provide the news but also to offer her opinions as to that news,” the judge said. “Therefore, the Court finds that the medium of the alleged defamatory statement makes it more likely that a reasonable viewer would not conclude that the contested statement implies an assertion of objective fact.”
In a motion to dismiss the case, Maddow’s attorneys allege Herring Networks was not objecting to anything from the Daily Beast article, and conceded that Rouz worked for an organization affiliated with the Russian government.
Maddow’s attorneys maintained that her comments during the segment were opinions based entirely on the Daily Beast story, and “she nowhere indicates that she has separate knowledge about Mr. Rouz or the funding of OAN other than from that article.”
Bashant agreed, writing that viewers would “follow the facts of the Daily Beast article; that OAN and Sputnik share a reporter and both pay this reporter to write articles. Anything beyond this is Maddow’s opinion or her exaggeration of the facts.”
Updated at 2:40 p.m. May 22, 2020
— City News Service contributed to this report.
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