(CN) — MSNBC host Rachel Maddow got to have the last word Tuesday as the Ninth Circuit affirmed dismissal of a defamation case brought against her by conservative news network One America News over a statement she made on-air in 2019 calling the 24-hour news network “Russian propaganda.”
In a 24-page order Tuesday, U.S. Circuit Judge Milan D. Smith Jr. found a six-word statement uttered by Maddow when reporting that an OAN correspondent moonlighted as a freelance reporter for Kremlin-backed Sputnik News was “an obvious exaggeration, cushioned within an undisputed news story.”
The George W. Bush appointee added: “The statement could not reasonably be understood to imply an assertion of objective fact, and therefore, does not amount to defamation.”
In a segment on her show July 22, 2019, Maddow highlighted a story published the same day by The Daily Beast which revealed OAN’s on-air politics reporter Kristian Rouz simultaneously wrote for Sputnik News.
OAN never filed a lawsuit against The Daily Beast or its senior national security correspondent Kevin Poulsen. The facts reported in the story were never disputed.
During her segment, Maddow called The Daily Beast article a “sparkly story” and said the Donald Trump-endorsed news network “really literally is paid Russian propaganda.”
OAN sued Maddow, Comcast and NBC in the Southern District of California that fall, claiming Maddow’s “Russian propaganda” comment “is false and intended to malign and harm OAN,” a San Diego-based independent news network entirely financed by the Herring family.
In 2020, U.S. District Judge Cynthia Bashant, a Barack Obama appointee, found Maddow’s comment was opinion, not fact, and dismissed the case.
Earlier this year, Bashant awarded Maddow’s attorneys $247,000 for their defense of the political newscaster.
During the July court hearing on whether to revive the case, Smith questioned whether it was “obvious” Maddow wasn’t breaking a news story because a screenshot of The Daily Beast article was featured behind her during the segment.
Judge Smith also asked whether it was unreasonable for Maddow to suggest OAN was “tainted” by one of its employees also doing work for the Russian news network.
Smith reiterated his comments in his opinion Tuesday.
He found OAN and its parent company were unlikely to prevail on the defamation claim because the challenged speech was not a statement of fact and the context of Maddow’s show made it likely her audience would expect her to make political opinions.
Smith noted: “It seems Herring agrees with this conclusion as well,” based on its complaint which characterized Maddow as “a liberal television host” and MSNBC’s programming as “liberal politics.”
“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,” Smith wrote.
Maddow’s tone throughout the segment — where she laughed, shook her head and acted “astonished” at the news revealed by The Daily Beast article — also bolstered her claim a reasonable viewer would understand she was not breaking news, Smith wrote.
He added: “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.”
Smith also rejected OAN’s contention the Ninth Circuit panel should only consider the challenged six-word “Russian propaganda” phrase, noting the context provided by Maddow’s commentary before and after she made the statement disclosed all relevant facts and contained colorful language.
“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,’” Smith wrote.
As to whether Bashant abused her discretion is dismissing OAN’s suit with prejudice, Smith found she did not because OAN and Herring never asked for leave to amend their complaint to add additional facts.
U.S. Circuit Judge John Owens, an Obama appointee, and U.S. District Judge Eduardo C. Robreno, a George H.W. Bush appointee sitting by designation from the Eastern District of Pennsylvania, rounded out the panel.
OAN is represented by Amnon Siegel of Miller Barondess. Maddow is represented by Gibson Dunn & Crutcher attorney Theodore Boutrous Jr. Phone and email requests for comment to both law offices were not immediately returned.
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