Amnon Siegel (middle left) represented Herring Networks and Ted Boutrous (middle right) argued for Rachel Maddow and her employers in July 27 hearing before three judges of the 9th U.S. Circuit Court of Appeals. Image via YouTube.com

Score one for Rachel Maddow — again. 

The 9th U.S. Circuit Court of Appeals on Tuesday said a San Diego federal judge was right to throw out a $10 million defamation suit against MSNBC’s top-rated host. The opinion of a three-judge panel was posted three weeks after hearing arguments in a virtual hearing based in Pasadena. 

Decision of 9th U.S. Circuit Court of Appeals in OAN-Maddow case. (PDF)

A lawyer for owners of San Diego-based One America News argued July 27 that Maddow should face trial for calling OAN “literally … paid Russian propaganda” in a 3 1/2-minute segment two years earlier.

But in a 3-0 opinion written by Judge Milan D. Smith Jr., the court said: “Maddow’s statement is well within the bounds of what qualifies as protected speech under the First Amendment. No reasonable viewer could conclude that Maddow implied an assertion of objective fact. The judgment of the district court is therefore affirmed.”

The 24-page ruling by Smith, John B. Owens and Eduardo C. Robreno (from the Eastern District of Pennsylvania) also was a victory for Maddow’s employers — Comcast Corp., NBCUniversal Media and MSNBC Cable.

Smith wrote: “The challenged statement was an obvious exaggeration, cushioned within an undisputed news story. The statement could not reasonably be understood to imply an assertion of objective fact, and therefore, did not amount to defamation.”

He said San Diego federal judge Cynthia Bashant didn’t abuse her discretion in dismissing the complaint in May 2020 without permission to amend because “Herring never asked to amend, and if it had, amendment would have been futile.”

Maddow cited California’s anti-SLAPP law, arguing that the challenged speech “is fully protected by California law and the First Amendment because it is an opinion based on fully disclosed facts, is not susceptible of the meaning [Herring] ascribes to it, and — even if it could be considered factual — is substantially true.”

Smith added: “According to Maddow, because her comment concerned a public issue and Herring could not establish a likelihood of prevailing on its defamation claim, the district court was entitled to strike the complaint pursuant to California’s anti-SLAPP statute,” which aims to protect news media and others from legal intimidation.

Famed attorney Ted Boutrous, representing Maddow and fellow defendants including NBC Universal, said in the YouTube-aired hearing that Herring Networks were  “isolating on those six words, stripped of context, a myopic approach that the Supreme Court and this court have rejected because it would destroy the breathing space for lively and informative debate about public issues that the First Amendment protects.”

He added: “We can’t have speech police parsing the words they way Herring is doing. It would really chill valuable speech.”

Amnon Siegel, representing Herring, wanted Maddow’s statement to be taken as an assertion of fact, rather than opinion based on a Daily Beast article telling how an OAN contributor also wrote for Sputnik, a Russian government-affiliated media agency.

Maddow, he said, told the New York Times Magazine that the purpose of her show is  “to provide good, true stories.”

“We’re talking about truth here,”  Siegel said. “She’s not providing the truth about One America News, and she’s not couching it in terms of opinion, either.”

“She’s saying: In this case, they really literally are paid Russian propaganda, and she’s doing it very deliberately, and it’s extremely damaging to the network.”

Boutrous called Maddow’s statement “a quintessential imaginative expression, rhetorical hyperbole, opinion based on truthful disclosed facts that this court” said the the First Amendment protects” and “a perfectly in-bounds opinion and observation.”

“OAN can say: No, we’re not Russian propaganda,” he added. “Different viewers can take a different position…. That’s the kind of robust, wide-open debate — vehement, caustic, humorous, biting, denigrating sort of debate about important public issues that New York Times vs. Sullivan was [meant] to protect.” 

The 9th Circuit ruling also leaves in place Bashant’s order that Herring pay more than $250,000 in legal fees to Maddow’s lawyers.

Dean Nelson, director of the journalism program at Point Loma Nazarene University, said the ruling came as no surprise to anyone familiar with First Amendment protections.

“Maybe the best takeaway is that it might discourage some groups from filing lawsuits just as a means to harass news organizations,” Nelson said. “That’s what this suit looked like from the start — just a way to intimidate, harass and make the news organization spend a lot of money to defend itself. The courts saw through it and said ‘nope.'” 

OAN founder and CEO Robert Herring Sr. and attorney Siegel didn’t respond to requests for comment.

Herring also faces his own defamation case — brought by Dominion Voting Systems. The provider of election services recently sued Herring Networks for $1.6 billion over profit-robbing falsehoods aired on the conservative cable network.

Updated at 9:40 p.m. Aug. 17, 2021

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