HERRING NETWORKS, INC., Plaintiff-Appellant, v. RACHEL MADDOW; COMCAST CORPORATION; NBCUNIVERSAL MEDIA, LLC; MSNBC CABLE, LLC, Defendants-Appellees.
No. 20-55579
United States Court of Appeals, Ninth Circuit
Filed August 17, 2021
D.C. No. 3:19-cv-01713-BAS-AHG. Argued and Submitted July 27, 2021, Pasadena, California.
Before: MILAN D. SMITH, JR. and JOHN B. OWENS, Circuit Judges, and EDUARDO C. ROBRENO, District Judge.
Defamation / Anti-SLAPP Motion
The panel affirmed the district court’s judgment granting Appellees’ motion to strike Herring Network, Inc.’s defamation complaint pursuant to California’s anti-SLAPP statute, and dismissing Herring Networks, Inc.’s defamation suit with prejudice.
Herring launched One American News Network (OAN) in 2013. Rachel Maddow, host of a show on MSNBC, ran a segment stating that OAN employee Kristen Rouz worked for OAN, but was “also being paid by the Russian government to produce government-funded pro-Putin propaganda for a Russian government funded propaganda outfit called Sputnik.” Herring sued Maddow and related entities for defamation. Maddow filed a motion to strike the complaint pursuant to California’s anti-SLAPP statute, which the district court granted.
The panel first addressed Herring’s argument that the district court should have considered five pieces of proffered evidence outside of the pleadings in determining whether to grant Maddow’s motion to strike. Because the motion to strike mounted a legal challenge, not a factual challenge, to Herring’s complaint, the panel held that Herring’s reliance on evidence outside of its complaint in defending against the anti-SLAPP motion was improper and inconsistent with the Federal Rules of Civil Procedure.
Finally, the panel held that the district court did not abuse its discretion in dismissing the complaint without leave to amend because Herring never asked to amend, and if it had, amendment would have been futile.
COUNSEL
Amnon Z. Siegel (argued), Colin H. Rolfs, and Justin P. McCarthy, Miller Barondess LLP, Los Angeles, California, for Plaintiff-Appellant.
Theodore J. Boutrous Jr. (argued), Scott A. Edelman, Theane Evangelis, Nathaniel L. Bach, and Marissa B. Moshell, Gibson Dunn & Crutcher LLP, Los Angeles, California, for Defendants-Appellees.
M. SMITH, Circuit Judge:
Appellant Herring Networks, Inc. (Herring) appeals the judgment of the district court granting Appellees’ anti-SLAPP motion and dismissing Herring’s defamation suit with prejudice. We have jurisdiction pursuant to
FACTUAL AND PROCEDURAL BACKGROUND
A.
Herring launched One American News Network (OAN) in 2013. As noted in the complaint, “OAN features news programming, political talk shows, and special documentary-style reports” and is a “leading conservative voice in American news.” OAN is wholly owned by the Herring family, and has its principal place of business in San Diego, California.
Kristian Rouz is an employee of OAN. According to Herring, “Rouz collects and analyzes articles from other sources and writes articles based on those sources for OAN.” While employed by OAN, Rouz also wrote articles as a freelancer for Sputnik News, a Russian state-financed news organization. According to Herring, “Rouz chose the topics and viewpoints of the articles he wrote for Sputnik News” and earned approximately forty dollars per article. Herring alleges that Rouz’s work for Sputnik News “had no relation
On July 22, 2019, The Daily Beast published an article entitled “Trump’s New Favorite Channel Employs Kremlin-Paid Journalist.” The article, written by Senior National Security Correspondent Kevin Poulsen, read: “If the stories broadcast by the Trump-endorsed One America News Network sometimes look like outtakes from a Kremlin trolling operation, there may be a reason. One of the on-air reporters at the 24-hour network is a Russian national on the payroll of the Kremlin’s official propaganda outlet, Sputnik.” The article asserted that Rouz was reporting for OAN while “simultaneously writing for Sputnik” and that “Kremlin propaganda sometimes sneaks into Rouz’s segments on unrelated matters, dropped in as offhand background information.” The article provided two examples. In a “segment on the Syrian rescue workers,” Rouz referred to their “‘involvement in military activities, executions, and numerous war atrocities,’ but [did not] disclose that those ‘allegations’ were hoaxes that originated with Vladimir Putin and his proxies.” And in a different report, “Rouz cast Clinton’s criticism of Brexit as an extension of her ‘grievous insults and fake narratives against Russia’—an assertion that makes sense only in the context of Rouz’s multiple reports claiming Russia was framed for hacking Democrats.” The article also quoted a former Federal Bureau of Investigation (FBI) agent, who stated: “This completes the merger between Russian state-sponsored propaganda and American conservative media. . . . We used to think of it as ‘They just have the same views’ or ‘They use the same story leads.’ But now they have the same personnel.”
[P]erhaps the single most perfectly formed story of the day, the single most like sparkly story of the entire day is this scoop from reporter Kevin Poulsen at “The Daily Beast” who has sussed out that Trump’s favorite more Trumpier than Fox TV network, the one that the president has been promoting and telling everyone they should watch and is better than Fox, turns out that network has a full time on air reporter who covers U.S. politics who is simultaneously on the payroll of the Kremlin. What?
Maddow then repeated that “at the same time [Rouz] works for Trump’s favorite One America News team, he is also being paid by the Russian government to produce government-funded pro-Putin propaganda for a Russian government funded propaganda outfit called Sputnik.” Maddow explained that Sputnik played a role in the Russian government’s interference in the 2016 presidential election and had formally registered as a foreign power with the United States Department of Justice. She then provided further commentary on the article:
[A]mong the giblets the news gods dropped off their plates for us to eat off the floor today
is the actual news that this super right wing news outlet that the president has repeatedly endorsed as a preferable alternative to Fox News . . . . We literally learned today that that outlet the president is promoting shares staff with the Kremlin. I mean, what? I mean, it’s an easy thing to throw out, you know, like an epitaph in the Trump era, right? Hey, that looks like Russian propaganda. In this case, the most obsequiously pro-Trump right wing news outlet in America really literally is paid Russian propaganda. They’re [sic] on air U.S. politics reporter is paid by the Russian government to produce propaganda for that government.
Maddow ended the segment noting that she expected OAN would not fire Rouz and President Trump would continue promoting the network.
B.
On September 9, 2019, Herring sued Appellees Rachel Maddow, Comcast Corporation, NBCUniversal Media, LLC, and MSNBC Cable, LLC (collectively, Maddow or Appellees) for defamation. Herring did not sue The Daily Beast or Kevin Poulsen over the article. Instead, the crux of Herring’s case concerned the following comment that Maddow included in her July 22nd segment: OAN “really literally is paid Russian propaganda.” Herring alleged that “Maddow’s statement is utterly and completely false” because “OAN has never been paid or received a penny from Russia or the Russian government.”
In opposition to Maddow’s motion, Herring filed an ex parte application to supplement the record. Herring argued that “new evidence ha[d] come to light” that demonstrated Maddow’s contested speech was not constitutionally protected. The new evidence was a segment on Chris Matthews’s show Hardball, also on MSNBC, where Matthews claimed OAN was “Russian owned” and then, immediately after a commercial break, retracted the statement. In Matthews’s retraction, he noted that OAN is “owned by an American.” Relying on this new evidence, Herring argued that Maddow’s own colleague “understood her claim literally and reiterated it on his show.” Therefore, claimed Herring, Maddow could not show that no reasonable person could construe her speech as provably false.
The district court granted the motion to strike, agreeing with Maddow that her “statement is an opinion that cannot serve as the basis for a defamation claim” and that Herring failed to show “a probability of succeeding on its defamation claims.” Herring Networks, Inc. v. Maddow, 445 F. Supp. 3d 1042, 1054 (S.D. Cal. 2020).
Herring timely appealed. First, Herring argues that the district court erred in excluding its evidence. Herring contends that the district court’s reliance on Planned Parenthood “was misplaced and took a line from the decision out of context, ignoring the broader Erie [Railroad Company v. Tompkins, 304 U.S. 64 (1938)] analysis governing application of [California’s] anti-SLAPP statute in federal courts.” According to Herring, Planned Parenthood “only resolved whether a plaintiff was required to submit evidence” in its opposition to an anti-SLAPP motion that challenges the legal sufficiency of a complaint, not whether a plaintiff was “prohibited from submitting evidence in opposition to an anti-SLAPP motion.” Moreover, Herring argues, “[w]here a plaintiff submits evidence, as here, it does not conflict with [the Federal Rules of Civil Procedure] for a court to consider that evidence.” Herring then asserted that if such an evidentiary submission did conflict with
Second, Herring argues that the district court erred in concluding that no reasonable viewer could have understood Maddow’s statement as fact. Herring contends that the statement is susceptible of being proved true or false; that the inclusion of “really literally” demonstrates the statement was not opinion; that Maddow’s use of The Daily Beast article made the statement appear as fact; and that the broad context of the statement indicated that the statement was not opinion. Moreover, Herring avers that even if Maddow’s statement was hyperbole, she “falsely implied an actual connection between OAN’s news content and Russia.”
In response, Maddow argues that the district court correctly rejected Herring’s proffered evidence because “anti-SLAPP motions brought as facial challenges pursuant to
STANDARD OF REVIEW
We review an order granting a special motion to strike under California’s anti-SLAPP statute de novo. Maloney v. T3Media, Inc., 853 F.3d 1004, 1009 (9th Cir. 2017). We review a district court’s dismissal with prejudice and denial of leave to amend for abuse of discretion. Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
A.
California’s anti-SLAPP statute allows a defendant to file a “special motion to strike” a plaintiff’s complaint, and involves a two-step inquiry.
B.
Before determining whether the district court properly granted Maddow’s anti-SLAPP motion, we must first address Herring’s argument that the district court should have considered five pieces of proffered evidence outside of the pleadings then before the court in determining whether to grant Maddow’s motion to strike. This evidence includes:
“The degree to which [California’s] anti-SLAPP provisions are consistent with the Federal Rules of Civil Procedure has been hotly disputed.” Planned Parenthood, 890 F.3d at 833. Although portions of the California anti-SLAPP statute are inapplicable in federal court, see Metabolife, 264 F.3d at 845–46, we have held that “there is no direct collision” between the special motion to strike subsection of the statute and the Federal Rules, see United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 972 (9th Cir. 1999) (internal quotation marks omitted). To avoid such a collision, “we [ ] review anti-SLAPP motions to strike under different standards depending on the motion’s basis.” Planned Parenthood, 890 F.3d at 833. A defendant may move to strike “on purely legal arguments,” in which case we analyze the motion pursuant to Rules 8 and 12. Id. (citation omitted); see also Rogers v. Home Shopping Network, Inc., 57 F. Supp. 2d 973, 982 (C.D. Cal. 1999) (“[T]he Court refers to a motion that only identifies legal defects on the face of the pleading, analogous to a
The parties do not dispute that Maddow’s motion to strike mounted a legal challenge to Herring’s complaint, not a factual challenge. Quoting Planned Parenthood, 890 F.3d at 834, even Herring’s briefing before the district court concedes that Maddow’s motion “must be treated in the same manner as a motion under
In Planned Parenthood, we held that the defendant’s anti-SLAPP motion challenged the legal deficiencies of the plaintiff’s pleadings, not the factual sufficiency of the claims. Id. at 834–35. Given that the proper analysis of the motion to strike was a
The facts of Planned Parenthood are not identical to the facts of this case, but the applicable reasoning in Planned Parenthood squarely forecloses Herring’s argument. “Echoing the point” we made in prior cases, Planned Parenthood reiterated the division of anti-SLAPP motions to strike into two categories: motions that challenge the legal sufficiency of complaints and motions that challenge the factual sufficiency of complaints. Id. The former of these
C.
We now turn to the merits of the district court’s order granting Maddow’s anti-SLAPP motion. It is undisputed that Maddow’s challenged speech was an act in furtherance of her right to free speech. Therefore, the first step of the anti-SLAPP analysis is satisfied. The only remaining question is whether the district court erred in holding that Herring failed to demonstrate a reasonable probability of
Pursuant to California law, defamation “involves the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage.” Gilbert v. Sykes, 53 Cal. Rptr. 3d 752, 764 (Ct. App. 2007) (quoting Ringler Assocs. Inc. v. Md. Cas. Co., 96 Cal. Rptr. 2d 136, 148 (Ct. App. 2000)). Because the challenged speech must be a statement of fact, the threshold question in every defamation suit is “whether a reasonable factfinder could conclude that the [contested] statement implies an assertion of objective fact.” Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir. 1990) (alterations and internal quotation marks omitted). “If the answer is no, the claim is foreclosed by the First Amendment.” Gardner v. Martino, 563 F.3d 981, 987 (9th Cir. 2009). We apply a three-factor test in resolving this question: “(1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, (2) whether the defendant used figurative or hyperbolic language that negates that impression, and (3) whether the statement in question is susceptible of being proved true or false.” Partington v. Bugliosi, 56 F.3d 1147, 1153 (9th Cir. 1995). When applied here, this “totality of the circumstances” test demonstrates that the district court properly held that Herring could not meet its burden because “a reasonable factfinder could only conclude that the statement was one of opinion not fact.” Herring Networks, 445 F. Supp. 3d at 1054; see also Knievel v. ESPN, 393 F.3d 1068, 1074–75 (9th Cir. 2005).
1.
“[T]he context of a statement may control whether words were understood in a defamatory sense.” Koch v. Goldway, 817 F.2d 507, 509 (9th Cir. 1987). The broad context “includes ‘the general tenor of the entire work, the subject of the statements, the setting, and the format of the work.’” Knievel, 393 F.3d at 1077 (quoting Underwager v. Channel 9 Austl., 69 F.3d 361, 366 (9th Cir. 1995)). “[W]hen the surrounding circumstances of a statement are those of a heated political debate, where certain remarks are necessarily understood as ridicule or vituperation, . . . the statement cannot reasonably be taken as anything but opinion.” Koch, 817 F.2d at 509.
We agree with the district court’s conclusion that the broad context of Maddow’s show makes it more likely that her audiences will “expect her to use subjective language that comports with her political opinions.” Herring Networks, 445 F. Supp. 3d at 1050. It seems Herring agrees with this conclusion as well: Herring’s complaint characterizes Maddow as “a liberal television host,” and MSNBC’s cable programming as “liberal politics.” Although MSNBC produces news, Maddow’s show in particular is more than just stating the news—Maddow “is invited and encouraged to share her opinions with her viewers.” Id. at 1049. In turn, Maddow’s audience anticipates her effort “to persuade others to [her] position[] by use of epithets, fiery rhetoric or hyperbole.” Info. Control Corp. v. Genesis One Comput. Corp., 611 F.2d 781, 784 (9th Cir. 1980) (citation omitted). Therefore, the medium through which the contested statement was made supports Maddow’s argument that a reasonable viewer would not conclude the statement implies an assertion of fact.
Focusing one level closer, the tenor of the segment in which Maddow made the contested statement also supports the conclusion that a reasonable viewer would have understood that Maddow was expressing her opinion. As the
On appeal, Herring primarily relies on Unelko to argue that the broad context of the contested statement demonstrates that reasonable viewers would take the statement as factual. Its reliance is misplaced. In Unelko, the plaintiffs sued Andy Rooney, arguing that his assertion on 60 Minutes that the plaintiffs’ product “didn’t work” was a defamatory statement of fact. Id. at 1050. The segment in which the statement was made involved Rooney describing the “‘junk’ [that] he had received in the mail,” including “caps, and a lot of cups,” an expensive watch, pictures of himself, an orange peeler, and “an ashtray in the shape of a human lung.” Id. at 1051. Among the “junk” was the plaintiffs’ product: “something for the windshield of your car called Rain-X.” Id. In describing the product, Rooney notes that he “actually spent an hour one Saturday putting it on the windshield of [his] car.” Id. Rooney
The facts in this case are much different. Maddow’s astonishment and the segment’s tone of “surprise and glee” were derived from the news presented in The Daily Beast article—a story that Herring does not allege is defamatory. Herring Networks, 445 F. Supp. 3d at 1050. In Unelko, the segment is funny only if Rooney’s statement is an assertion of fact, id. at 1054, whereas here, Maddow’s segment maintains a gleeful tenor not because of Maddow’s single line that OAN is “paid Russian propaganda,” but because of The Daily Beast’s breaking news. Given the broad contexts of the two statements, a reasonable viewer would understand Maddow’s statement as colorful commentary and Rooney’s statement as a factual assertion of Rain-X’s effectiveness. See id.; see also Partington, 56 F.3d at 1154.
The general context of Maddow’s statement, therefore, “negates the impression that [she] impl[ied] a false assertion of fact.” Partington, 56 F.3d at 1154. Maddow “fairly describe[d] the general events involved” in The Daily Beast article and “offer[ed her] personal perspective about some of its ambiguities.” Id. A reasonable viewer would be able to differentiate between Maddow’s commentary and the actual news she is reporting.
Next, we must “examine the ‘specific context and content of the statements, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the audience in that particular situation.’” Knievel, 393 F.3d at 1077 (quoting Underwager, 69 F.3d at 366).
Although Herring’s complaint and appellate briefs suggest that we should consider only the challenged six-word phrase, our precedent requires us to expand our focus to the surrounding sentences. See id. at 1074 (“Although the word ‘pimp’ may be reasonably capable of a defamatory meaning when read in isolation, . . . the term loses its meaning when considered in the context” of the publication (internal quotation marks omitted)). Accordingly, it may be helpful to reiterate the portion of Maddow’s segment at issue. Maddow’s dialogue includes a summary of The Daily Beast article, an exasperated and staged conversation about OAN’s reporting resembling “Russian propaganda,” the contested statement that “[OAN] really literally is paid Russian propaganda,” and then a repetition of the story that an “on air U.S. politics reporter is paid by the Russian government to produce propaganda for that government.” Because Maddow discloses all relevant facts and employs colorful, hyperbolic language, we conclude that the specific context of the statement does not render it an assertion of fact.
Statements are less likely to be expressions of fact where—as here—the speaker fully discloses all relevant facts. Our decision in Standing Committee on Discipline of the United States District Court for the Central District of California v. Yagman is instructive. See 55 F.3d 1430 (9th Cir. 1995). In that case, an attorney raised First Amendment objections to being disciplined for, among other things,
Maddow’s contested statement also fits squarely into Yagman’s first category of opinions: “those based on assumed or expressly stated facts.” See id. at 1439. Maddow’s dialogue before and after the contested statement is solely a reiteration of the material in The Daily Beast article. At no point before the contested statement does Maddow “imply the existence of additional, undisclosed facts.” See id. at 1440. Instead, Maddow reports the undisputed facts and then transitions into providing “colorfully expressed” commentary. See Cochran v. NYP Holdings, Inc., 58 F. Supp. 2d 1113, 1124 (C.D. Cal. 1998). Maddow’s commentary reads: “I mean, what? I mean, it’s an easy thing to throw out, you know, like an epitaph in the Trump era, right? Hey, that looks like Russian propaganda. In this case, the most obsequiously pro-Trump right wing news outlet in America really literally is paid Russian
Maddow’s use of hyperbolic rhetoric bolsters this conclusion. “[L]oose, figurative, or hyperbolic language . . . negate[s] the impression” that the contested statement is an assertion of fact. Milkovich v. Lorain J. Co., 497 U.S. 1, 21 (1990); see also Underwager, 69 F.3d at 367 (holding “colorful, figurative rhetoric” nonactionable because “reasonable minds would not take [it] to be factual”); Unelko, 912 F.2d at 1054 (considering whether “an audience might anticipate rhetoric or hyperbole” because of the “flavor” of the speaker’s comments). In comparison to the undisputed facts that Maddow reports, the contested statement was particularly emphatic and unfounded: Maddow went from stating that OAN employs a Sputnik employee to stating that OAN reports Russian propaganda. A reasonable person would understand Maddow’s contested statement as an “obvious exaggeration,” Gardner, 563 F.3d at 989, that is, as Maddow explains, “sandwiched between precise factual recitations” of The Daily Beast article.
3.
Lastly, we consider “whether the facts implied by [Maddow’s statement] are susceptible of being proved true or false.” Unelko, 912 F.2d at 1055. The district court held that when “taken in isolation,” the contested statement was
4.
In sum, two of the factors outlined in Partington—the general context and the specific context of the contested statement—negate the impression that the statement is an assertion of objective fact. While the third factor tilts in the other direction, we conclude that Maddow’s contested statement fits within “the ‘rhetorical hyperbole’ [that] has traditionally added much to the discourse of our Nation.” Milkovich, 497 U.S. at 20. We therefore affirm the district court’s grant of Maddow’s anti-SLAPP motion.
D.
A much closer question is whether the district court abused its discretion in dismissing Herring’s suit with prejudice.
The district court concluded that there was “no set of facts that could support a claim for defamation based on Maddow’s statement” and dismissed the complaint with prejudice. Herring contends that the court’s conclusion was inconsistent with its refusal to consider Herring’s evidence: “For the District Court to find that Herring’s evidence would make no difference, the District Court needed to consider that evidence, which it did not.” In response, Maddow argues that the district court acted within its discretion by dismissing the complaint without leave to amend, specifically because Herring never asked for leave to amend.
We agree with Maddow. The district court did not abuse its discretion in dismissing the complaint without leave to amend because Herring never asked to amend, and if it had, amendment would have been futile. Moreover, contrary to Herring’s briefing, the district court’s rejection of Herring’s evidence, given the applicable
CONCLUSION
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.
AFFIRMED.