OAN’s lawsuit against Rachel Maddow was dismissed last May in San Diego federal court, but an appeal might be heard in May in a Pasadena court of the 9th U.S. Circuit Court of Appeals. Photo by JD Lasica, Times of San Diego photo illustration

The owner of One America News Network on Wednesday fired its latest volley across the Rachel Maddow bow, filing arguments it hopes will reverse a federal court ruling that led to it being dinged nearly $250,000.

As Herring Networks awaits a potential defamation suit by Dominion Voting Systems, the San Diego-based cable outlet repeats in an appeal court brief that the MSNBC host was speaking factually and not merely expressing opinion when she said the Trump-backing network “really literally is paid Russian propaganda.”

Herring Networks’ reply in support of 9th Circuit appeal (PDF)

In May 2020, U.S. District Judge Cynthia Bashant dismissed Herring Networks’ suit on First Amendment grounds, ruling “there is no set of facts that could support a claim for defamation based on Maddow’s statement” made in July 2019.

Herring had sued Maddow and her employers, including NBCUniversal, for $10 million. But Judge Allison H. Goddard recently ordered Herring to pay Maddow’s attorneys $247,000 (which doesn’t count legal expenses of fighting the appeal in the 9th U.S. Circuit).

Among other things, Herring attorney Amnon Z. Siegel faults Bashant for not letting his clients — led by OAN founder Robert Herring, 79 — file an amended lawsuit.

“At a minimum, the District Court erred in refusing to grant Herring leave to amend the complaint to conform with the evidence submitted in opposition to defendants’ anti-SLAPP motion,” Siegel wrote, referring to a law that protects news media from “chilling” lawsuits.

Siegel also cites remarks Maddow made in 2019 as proof she considers herself a fact-telling host and not an opinion-monger. (Opinions have strong First Amendment protections.)

“Maddow herself admits in her New York Times Magazine interview that she is ‘not trying to get anybody elected,’ ‘not trying to get any policy passed,’ and ‘not trying to get people to call their member of Congress,'” Siegel wrote in the 32-page filing. “Her show is ‘trying to explain what’s going on in the world.’”

Further, he said, Maddow gave a “one-sided, skewed picture of the facts that allowed her audience to believe that [OAN reporter Kristian Rouz] was some kind of sleeper agent for the Russian government at OAN. Maddow never told her audience that Rouz was merely a freelancer for Sputnik who wrote articles on global finance.”

Siegel added: “Maddow’s assertion that OAN ‘really literally is paid Russian propaganda’ is not a slight inaccuracy. It is wholly false. OAN has never received money from Russia or the Russian government, and none of OAN’s content is influenced by Russians or the Russian government.”

To win a defamation suit, Herring needed to prove that Maddow’s statement was susceptible of being proven false.

So Siegel returned to an argument made in Bashant’s court: “Herring’s evidence that at least one OAN customer and Maddow’s own colleague at MSNBC, Chris Matthews, took her claim that OAN was paid Russian propaganda factually and literally” when he backtracked on calling the conservative network “Russian-owned.”

Siegel also revives a study by Stefan Thomas Gries, a UC Santa Barbara linguistics professor who concluded that when Maddow says “literally,” she means “in fact.”

Bashant shouldn’t have excluded the Gries analysis “out-of-hand,” he said.

“Defendants provide no authority for the exclusion of expert opinions in defamation actions, and expert linguistics testimony has been admitted in defamation actions before,” Siegel said.

In mid-December, Boutrous filed a 65-page brief arguing that the 9th Circuit should uphold Judge Bashant’s dismissal of the Maddow case.

“This Court should affirm the district court’s judgment dismissing this case with prejudice,” famed free-press advocate Ted Boutrous wrote. “This is exactly the kind of legally baseless defamation lawsuit targeting truthful speech about a ‘public issue’ that California’s anti-SLAPP statute, California defamation law and the First Amendment forbid.”

He added: “This lawsuit, which quibbles with a few words stripped of any context, is intended to chill truthful reporting and commentary on important matters of public concern.”

The 9th Circuit is expected to hear the case in May or July.

In Wednesday’s brief, Siegel likened his case to elements of the $16 million defamation suit made against Andy Rooney. In that 1988 case, the maker of Rain-X sued the late “60 Minutes” commentator for saying its windshield coating “didn’t work.”

“This [9th Circuit] Court concluded that the ‘humorous and satirical nature of’ a television show did not ‘negate the impression that [the speaker] was making a factual assertion,’” Siegel wrote. “Here too, Maddow’s use of some humor and commentary to accompany her factual assertions does not transform her factual assertions into opinions.”

Siegel’s brief fails to say how the case — Unelko Corp. v Rooney — turned out.

The 9th Circuit affirmed a lower court’s dismissal of the case.

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