445 F.Supp.3d 1042
S.D. Cal.2020Background
- Plaintiff Herring Networks, owner/operator of One America News Network (OAN), sued Rachel Maddow and MSNBC entities for defamation based on a July 22, 2019 Rachel Maddow Show segment.
- The segment reported on a Daily Beast article that said OAN reporter Kristian Rouz also wrote for Sputnik, a Russian state-affiliated outlet, and presented examples and commentary from the article.
- Maddow said, among other things, that OAN is “literally paid Russian propaganda” and that its on-air U.S. politics reporter was paid by the Russian government to produce propaganda.
- Defendants moved to strike under California’s anti‑SLAPP statute (§ 425.16); defendants argued the statements arose from protected free speech on a public issue.
- The court treated the motion as analogous to a Rule 12(b)(6) motion, incorporated the Daily Beast article and the Maddow segment by reference, and declined to consider plaintiff’s extraneous declarations and exhibits.
- The court granted the anti‑SLAPP motion, holding Maddow’s contested remarks were nonactionable opinion/hyperbole based on disclosed facts, dismissed the complaint with prejudice, and allowed defendants to move for fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of anti‑SLAPP (protected activity) | Maddow’s statement harmed OAN’s reputation and supports defamation claim | Statements were free speech on a public issue (news commentary) | Anti‑SLAPP applies; defendant met threshold (protected activity) |
| Procedural standard / evidentiary scope | Court should consider plaintiff’s declarations and request conversion to summary judgment | Motion challenges legal sufficiency and should be adjudicated under Rule 12(b)(6); extraneous evidence not considered | Treated as Rule 12(b)(6); court limited record to complaint and incorporated materials; denied ex parte supplementation |
| Whether contested statement is fact or nonactionable opinion/hyperbole | “Literally paid Russian propaganda” is a factual allegation susceptible of proof and thus defamatory | Comment was rhetorical hyperbole/opinion founded on the Daily Beast facts disclosed to viewers | Statement is nonactionable opinion/rhetorical hyperbole given totality of circumstances (medium, tone, disclosed facts) |
| Plaintiff’s probability of prevailing on defamation (falsehood / omitted facts) | Maddow omitted exculpatory facts (Rouz was a freelancer with no editorial control), so the assertion was false/misleading | Maddow accurately disclosed the article’s facts and framed an opinion; omission of every favorable fact does not transform disclosed‑basis opinion into defamation | Plaintiff failed to show a probability of success; claim dismissed with prejudice |
Key Cases Cited
- Rusheen v. Cohen, 37 Cal.4th 1048 (Cal. 2006) (anti‑SLAPP purpose and framework)
- Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) (two‑step anti‑SLAPP analysis)
- Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828 (9th Cir. 2018) (treatment of anti‑SLAPP motions under federal rules)
- Partington v. Bugliosi, 56 F.3d 1147 (9th Cir. 1995) (contextual analysis protecting commentary and opinion)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (distinguishing opinion from provably false assertions)
- Underwager v. Channel 9 Austl., 69 F.3d 361 (9th Cir. 1995) (totality of circumstances test for opinion vs. fact)
- Metabolife Intern., Inc. v. Wornick, 264 F.3d 832 (9th Cir. 2001) (plaintiff’s burden to show probability of prevailing under anti‑SLAPP)
- Partington v. Bugliosi, 56 F.3d 1147 (9th Cir. 1995) (protection for commentators who disclose factual basis for opinions)