(CN) --- Conservative news network One America News asked the Ninth Circuit on Tuesday to revive its defamation suit against MSNBC host Rachel Maddow over six words she uttered on-air in 2019, when reporting that an OAN correspondent moonlighted as a reporter for Kremlin-backed Sputnik News.
Maddow said OAN “really literally is paid Russian propaganda” when reporting on what she called “a sparkly story” by The Daily Beast in July 2019 which revealed OAN’s on-air politics reporter Kristian Rouz simultaneously wrote for Sputnik News.
OAN sued Maddow in the Southern District of California that fall, claiming Maddow’s “Russian propaganda” comment “is false and intended to malign and harm OAN,” an independent news network owned by Herring Networks and entirely financed by the Herring family.
But in 2020, U.S. District Judge Cynthia Bashant found Maddow’s comment was opinion, not fact, and dismissed the case. The Barack Obama appointee said during a hearing on the matter a few days before that “I don’t think there’s any question the contested statement arises from protected activity.”
Bashant awarded Maddow's attorneys $247,000 in fees this year for their defense of the political newscaster.
During Tuesday’s virtual Ninth Circuit hearing, OAN attorney Amnon Siegel of Miller Barondess doubled down on the network’s argument Maddow’s statement “directly impacts the reputation and integrity of One America News and it goes to the core of OAN’s operation as a trusted source of news.”
He added: “Maddow’s statement went well beyond the information reported in The Daily Beast article and stated, as fact, that OAN itself is backed by Russia to disseminate pro-Russia content.”
U.S. Circuit Judge Milan D. Smith Jr., a George W. Bush appointee, interrupted him.
“Mr. Siegel, as you know, the screenshot of The Daily Beast article was on the screen right in back of Ms. Maddow when she did the segment. Wasn’t it obvious she wasn’t breaking any story other than referring to The Daily Beast article?” Smith asked.
“I don’t believe it would have been obvious to her viewers,” Siegel said, noting since the article was published the same day as Maddow’s segment, there was no “shared public knowledge” about the issue and Maddow’s viewers likely hadn’t read the article.
“They’re not going to know the article does not state ‘OAN is paid Russian propaganda,’" Siegel said, adding Maddow used “‘really literally’ to emphasize the truth of the statement, not to make it seem like she’s just commenting on the news article.”
Smith questioned whether it was unreasonable for Maddow to make that jump.
“So OAN has a correspondent, a contributor, who in fact does do some work for a Russian news network. Is it out of the realm of reasonableness to say if OAN hires someone who has those credentials that it’s not a huge stretch to say that the network itself is tainted by that?” Smith asked.
Siegel responded it wasn’t relevant whether some viewers may think Maddow’s “Russian propaganda” comment was opinion, but whether the statement made a factual assertion. He noted OAN had evidence at least one viewer of Maddow’s show believed Maddow’s comment was a fact.
“The fact that there’s only one statement of fact that we’re suing on here doesn’t mean we lose. In fact, the fact we didn’t bring in all the other statements shows that we’re being reasonable because we are focusing on the false assertions of fact,” Siegel said.
Maddow’s attorney, Theodore Boutrous Jr. of Gibson, Dunn & Crutcher, said Maddow’s statement was protected by the First Amendment and California law.
“It is a classic example of opinion laced with rhetorical hyperbole based on truthfully disclosed facts from The Daily Beast article,” Boutrous said.
He added: “Herring is isolating on those six words stripped of context, a myopic approach the Supreme Court and this court have rejected because it would destroy the breeding space for lively and informative debate about public issues that the First Amendment protects.”
U.S. District Judge Eduardo C. Robreno, a George H.W. Bush appointee sitting by designation from the Eastern District of Pennsylvania, questioned whether OAN should be allowed the opportunity to submit facts to bolster its argument. The news network was not allowed to submit additional evidence as its case was dismissed with prejudice under the anti-SLAPP statute.
Boutrous pointed out OAN never asked Bashant for leave to amend its case to add additional facts. He also noted OAN has not disputed any of the facts reported by The Daily Beast “as being false” and Maddow made it clear during the 3.5-minute segment she was reporting on the article, which she quoted or paraphrased five times.
“The context made clear she was commenting, she was giving her interpretation and expressing her amusement and disdain that a U.S. network would employ someone who was also employed by Sputnik. She was expressing her astonishment,” Boutrous said.
U.S. Circuit Judge John Owens, an Obama appointee, rounded out the panel which took the matter under submission.
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