SAN DIEGO (CN) — Calling the contested news segment by MSNBC host Rachel Maddow at the center of a $10 million defamation lawsuit “a sparkly story,” a federal judge Tuesday considered whether the political pundit’s on-air statements were fully protected speech immune from a jury trial.
“I don’t think there’s any question the contested statement arises from protected activity,” U.S. District Judge Cynthia Bashant, a Barack Obama appointee, said of the six-word statement uttered by Maddow during a July 22, 2019, segment when she said San Diego-based One America News Network (OAN) “really literally is paid Russian propaganda.”
Maddow’s segment focused on an article in The Daily Beast which revealed OAN political reporter Kristian Rouz wrote for Russian-affiliated Sputnik News at the same time he worked for OAN. The network is a 24-hour conservative news source frequently cited by President Donald Trump.
The Daily Beast is not named in the lawsuit, and the facts of its article have not been disputed by OAN’s parent company, Herring Networks.
But OAN claims Maddow’s statement it is “Russian-owned” was presented in her segment as fact, rather than her opinion, as evidenced by a similar comment made by MSNBC host Chris Matthews months later before he immediately issued a retraction.
Maddow’s attorney Theodore Boutrous Jr. of Gibson, Dunn & Crutcher told Bashant in a telephonic court hearing Tuesday because Maddow’s comments were made based on “disclosed facts” from the Daily Beast article, they are protected by the First Amendment and should be dismissed pursuant to California’s anti-SLAPP statue.
Boutrous played on Maddow’s “literally” statement, causing Bashant to laugh.
“I’m using the term ‘literally’ here when discussing the Daily Beast article which is not contested,” Boutrous said.
“This was a story and commentary and Ms. Maddow’s take on this Daily Beast story. She’s giving her take in an entertaining, somewhat critical of President Trump and the network, context,” Boutrous added.
He said Maddow’s delivery throughout the OAN segment — “chuckling while she’s talking about it because it’s a ridiculous, astonishing story” — further clarified the point she was offering her opinion to viewers.
“It’s obviously an important public issue — it’s a network President Trump has pointed to and encouraged people to watch and she’s giving her take,” Boutrous said.
He also argued attorneys for OAN “ignored the context” of Maddow’s statement which doesn’t pass case law muster by the Supreme Court and Ninth Circuit in similar defamation cases, that all words, and not just a phrase, should be considered.
“Plaintiffs are trying to put words in Ms. Maddow’s mouth,” Boutrous said.
“She did not say they committed treason even if it was in a hyperbolic way, she didn’t say Russia owned OAN and she reported exactly what the Daily Beast said. She was offering commentary on this important political issue,” he added, asking Bashant to dismiss the case against Maddow and grant attorney’s fees.
But OAN attorney Amnon Siegel of Miller Barondess said because Maddow’s statement “is provably false” viewers of her program were reasonably likely to interpret it as fact.
“She does not make it clear she is giving an opinion when she literally states OAN is ‘literally’ paid propaganda,” Siegel said.
“The statement is made firmly and made between other factual statements making it more likely a reasonable viewer couldn’t determine it was opinion versus fact,” he added.
A redacted exhibit attached to OAN’s response to Maddow’s motion to strike the lawsuit suggests as much. It is an email submitted via OAN’s online contact form July 22, 2019 — the day Maddow’s segment aired — where a person whose name is redacted wrote: “You are a propaganda tool for Russian oligarchs.”
Siegel also pointed out Maddow didn’t preface her statement with “opinion markers” such as “You know I guess,” a phrase she commonly uses before offering her opinion, as identified in an expert report submitted by OAN.
But Bashant told Siegel during the hearing she did not find the expert’s opinion relevant and would not use it in her decision.
“It’s my call on this and I don’t think it’s appropriate to consider at this point,” Bashant said.
Siegel also argued the term “really literally” almost always precedes an actual true statement.
“We believe the statement could have been understood as one of fact and has to be left up to a jury’s determination,” Siegel said.
“Just because the statement may have some satire, does not immune [Maddow] from liability,” he added.
Bashant took the matter under submission, saying: “I hope I will issue an order in the not too distant future.”