Defamation / Reputation
Johnson v. Steele
On Appeal Expands Expression
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On May 22, 2020, a District Court granted MSNBC’s Rachel Maddow’s motion to strike in furtherance of a defamation claim against her by Herring Networks, owner of One America News Network (OAN), for comments on the broadcast of The Rachel Maddow Show. The segment of the show, which began with a three and a half minute exposé about One America News Network (OAN) where Maddow told her audience that OAN “really literally is paid Russian propaganda”, was challenged on grounds of defamation. The segment was based on an article published in July 2019 on The Daily Beast and referred to OAN’s on-air reporter Kristian Rouz who, after moving to US from Ukraine in 2014, had started working for Sputnik, a Russian state-financed propaganda organization. The Court found the comments made by Ms. Maddow were “fully protected opinion” made in furtherance of her constitutional right to exercise free speech concerning a public issue. It also recognized that the First Amendment and California law both forbade defamation claims which attacked statements of opinion based on disclosed facts. Since there was no set of facts that could support a claim for defamation based on Maddow’s statement, the Court found the contested statement could not serve as the basis for a defamation claim. Herring Networks’ complaint was dismissed with prejudice.
The Plaintiff, Herring Networks, owns and operates One America News Network (‘OAN’), a conservative media organization focused on providing national and international news coverage. Rachel Maddow, the defendant, is the host of The Rachel Maddow Show, an evening news and politics program on MSNBC. Other defendants, namely NBCUniversal Media, LLC and Comcast Corporation are the direct and ultimate parent companies of MSNBC.
On July 22, 2019, The Daily Beast (an online news publication agency) published an article written by its senior correspondent Kevin Poulsen entitled “Trump’s New Favorite Channel Employs Kremlin-Paid Journalist”. The article reported that “[i]f the stories broadcast by the Trump-endorsed One America News Network (OAN) 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 Daily Beast was referring to OAN’s on-air reporter Kristian Rouz, who after moving to US from Ukraine in 2014 had started working for Sputnik, a Russian state-financed propaganda organization. Mr. Rouz worked for Sputnik in a freelance capacity while also employed as a reporter for OAN from August 2017.
Later on the eve of the publication of the The Daily Beast article on July 22, 2019, MSNBC’s The Rachel Maddow Show began with a three and a half minute segment entitled “Staffer on Trump-Favored Network is on Propaganda Kremlin Payroll”. The segment was an exposé on OAN where Maddow told her audience that OAN “really literally is paid Russian propaganda”. Among other things, Ms. Maddow observed that Mr. Rouz was being paid by the Russian Government to produce government-funded-pro-Putin propaganda through an outfit called Sputnik. Relevant excerpts from the Maddow’s commentary on The Daily Beast article are as follows:
“[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 . . . 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.”
“I mean, this is the kind of news we are supposed to take in stride these days. And we do our best. . . . And we expect that they won’t fire their Kremlin staffer and we expect that the president will keep promoting them, and we expect that other right wing news outlets wonder if they should have a Kremlin staffer doing U.S. politics reporting, too.”
In September 2019, Herring Networks sued defendants for defamation for comments Ms. Maddow made during a segment about OAN on her show, challenging the phrase “really literally is paid Russian propaganda”. Before the District Court, the plaintiff argued that the phrase was false and defamatory as it indicated to the audience that OAN itself was a Russian-financed organisation and, thus, amounted to a charge of treason and disloyalty to the United States of America.
On October 21, 2019, defendants filed a motion to strike the complaint pursuant to California’s anti-SLAPP law, (California Code of Civil Procedure section 425.16). They contested that the Ms. Maddow’s statement was an opinion made on fully disclosed facts and was, therefore, speech that was fully protected by the First Amendment and California law. They also claimed that even if Ms. Maddow’s statement was understood as factual, it was non-actionable on account of being substantially true.
By a decision dated March 22, 2020, the District Court dismissed the case with prejudice, concluding that Herring Networks could not prevail as a matter of law on its defamation claim as Ms. Maddow’s comments were fully protected opinion and rhetorical hyperbole. On October 22, 2020, Herring Networks filed an appeal against the decision of the District Court. The case is currently pending appeal before the Court of Appeals for the Ninth Circuit.
Judge Cynthia Bashant delivered the judgment of the United States Court for Southern District of California. The principle question before the Court was whether the statement made by Ms. Maddow[…”really literally is paid Russian propaganda”] was liable for protection under First Amendment or not.
The California Code of Civil Procedure section 425.16 states that “there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech” and “declares that it is in the public interest to encourage continued participation in matters of public significance”. Sub-division (e) of the section 425.16 sets forth four categories of “protected activity”, which is defined under law to include any conduct in furtherance of the right to exercise free speech in connection with a public issue or issue of interest. Notably, California’s anti-SLAPP law provides the public interest requirement to be construed broadly.
Procedurally, there are two kinds of anti-SLAPP motions that can be brought in a federal court. The first is a Rule 12(b)(6) motion to strike (also treated as a Rule 12(b)(6) motion to dismiss) and is assessed on the pleadings; whereas the second is a Rule 56 motion to strike, which is brought on and permits consideration of evidence. At the outset, the Court noted that since the defendants did not provide “alternate facts to challenge the allegations” [p. 4], the anti-SLAPP motion was a 12(b)(6) motion where the plaintiff was required to demonstrate legally sufficient prima facie evidence so as to prevail on the merits of the claim.
The Court then stepped forward to detail the two-step inquiry on a defendant’s motion to strike. Notably, further to the requirements of the anti-SLAPP statute, a defendant must first demonstrate there is a cause of action arising from any act in furtherance of the right of petition or free speech in connection with a public issue. Secondly, if the first prong of the anti-SLAPP test is satisfied, the burden shifts to the plaintiff to show a reasonable probability on the challenged claim. The District Court noted that Herring agreed that “Maddow was exercising her constitutional right of free speech and her statements concerned a public issue,” and therefore held that the first prong of the anti-SLAPP statute was satisfied. It sought to advance on the second prong directly, namely if Herring Networks had demonstrated a probability of prevailing on its defamation claim.
On merits, the Court recognized that the First Amendment and California law both forbid defamation claims attacking statements of opinion based on disclosed facts. Furthermore, it noted that whether a statement is one of opinion or fact is itself a “question of law”. It applied the “totality of circumstances” test to determine whether Ms. Maddow’s statement constituted non-actionable opinion. The three prongs of the test essentially require, first, to look at circumstances in a broad context, including the general tenor of the entire work, the subject of the statements, and the settings and format of the work. Secondly, to consider 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” and finally, whether the statement itself is sufficiently factual to be susceptible of being proved true or false [p. 7].
Analyzing the “broad context” of the statements made by Maddow, the Court initially considered the medium (i.e. the talk show segment aired on MSNBC) and the format of the statements. It concluded that even though MSNBC produced news, the fact that Maddow made the alleged defamatory statement on her own talk show news segment where she was invited and encouraged to share her opinions with her viewers, was crucial. Since the point of Maddow’s show was for her to not only provide the news but also to offer her opinions on that news, her show was different from typical news segments as viewers who watched MSNBC may know that it carries a “liberal message” and that Maddow was a “liberal television host” who expressed her views regarding Russia and President Trump. The Court, thus, declared that a reasonable viewer was unlikely to conclude that the statement implied an assertion of objective fact.
Furthermore, since the “general tenor” of Maddow’s segment was the report on The Daily Beast article where her tone was one of surprise and glee at the unexpectedness of the story, the Court held that she merely added colorful commentary and opinions and viewers expected her to do so given it was her show. Consequently, there was an implicit understanding that the segment contained her “personal and subjective views” [p. 10]. Based on these circumstances, the Court ruled that the broad context made it more likely a reasonable viewer would not conclude that Ms. Maddow had implied an assertion of fact when she made the challenged statement.
As to the statement’s specific context, the Court emphasized Ms. Maddow’s language during the OAN segment, explaining that “hyperbolic statements are not actionable because the listener knows that he or she should not accept the statements as fact’”[p. 10]. The Court found that Ms. Maddow sufficiently provided her listeners with the factual basis for her statement, namely, The Daily Beast article, and that she never hinted that her opinions were based on any additional, undisclosed facts not known to the public. The viewers were, therefore, presented with allegedly defamatory statements both truthfully and in full [p. 11]. Evidently, this fitted into the Court’s assessment of the First Amendment protection available to the defendants in accordance with established jurisprudence (“when a speaker outlines the factual basis for his conclusion, his statement is protected by the First Amendment”; Dodds v. Am. Broad. Co. (1998), Standing Comm. On Discipline of U.S. Dist. Court for Cent. Dist. of Cal. v. Yagman (1995) and Partington v. Bugliosi (1995)).
The Court also observed that while Ms. Maddow had used the word “literally”, in light of the full context of her statement, a reasonable viewer would have understood her use of that word to be “hyperbolic”. Accordingly, a reasonable viewer would “not actually think OAN is a paid Russian propaganda, instead, he or she would follow the facts of the Daily Beast article; that OAN and Sputnik share a reporter and both pay this reporter to write articles”. [p. 15]
Finally, the Court considered whether the alleged defamatory statement was susceptible of being proven false. It explained that in isolation, the statement that OAN is “literally paid Russian propaganda” is capable of verification, but when accounting for the totality of the circumstances — including the general context of the statements, the specific context of the statements, and the statements’ susceptibility of being proven true or false—a reasonable fact-finder could only conclude that the statement was one of opinion not fact. [p. 16]
Since there was no set of facts that could support a claim for defamation based on Maddow’s statement, the Court found the contested statement was an opinion that could not serve as the basis for a defamation claim. Herring Networks’ complaint was dismissed with prejudice.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The order of the District Court expands expression. Online speech that exaggerates, distorts, and paints a less than complete picture is, in most cases, a vast breeding ground for defamation. Defamation law, thus, serves a very important purpose in protecting persons from reputational harm. It reflects no more than our basic concept of the essential dignity and worth of every human being. The prevalence of anti-SLAPP laws in states like California and Tennessee, the First Amendment protection afforded to speech, and the defense of rhetorical hyperbole as prevailed in the case are crucial for protection of much loose, figurative, and exaggerated language that often characterizes speech in the media in current times. While media agencies often produce uncivil, unpleasant and even repugnant dialogue, the District Court’s ruling prevents a chilling effect on First Amendment rights and guarantees the right of free expression. It remains to be seen if the Appellate Court ruling will reinforce the Court’s jurisprudence or take an alternate route to justice.
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