Rachel Maddow Wins in 9th Circuit; OAN Loses Appeal in Defamation Case

by on August 18, 2021 · 0 comments

in Media, San Diego

By Ken Stone / Times of San Diego / August 17, 2021

Score one for Rachel Maddow — again.

The 9th U.S. Circuit Court of Appeals on Tuesday said a San Diego federal judge was right to throw out a $10 million defamation suit against MSNBC’s top-rated host. The opinion of a three-judge panel was posted three weeks after hearing arguments in a virtual hearing based in Pasadena.

A lawyer for owners of San Diego-based One America News argued July 27 that Maddow should face trial for calling OAN “literally … paid Russian propaganda” in a 3 1/2-minute segment two years earlier.

But in a 3-0 opinion written by Judge Milan D. Smith Jr., the court said: “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.”

The 24-page ruling by Smith, John B. Owens and Eduardo C. Robreno (from the Eastern District of Pennsylvania) also was a victory for Maddow’s employers — Comcast Corp., NBCUniversal Media and MSNBC Cable.

Smith wrote: “The challenged statement was an obvious exaggeration, cushioned within an undisputed news story. The statement could not reasonably be understood to imply an assertion of objective fact, and therefore, did not amount to defamation.”

He said San Diego federal judge Cynthia Bashant didn’t abuse her discretion in dismissing the complaint in May 2020 without permission to amend because “Herring never asked to amend, and if it had, amendment would have been futile.”

Maddow cited California’s anti-SLAPP law, arguing that the challenged speech “is fully protected by California law and the First Amendment because it is an opinion based on fully disclosed facts, is not susceptible of the meaning [Herring] ascribes to it, and — even if it could be considered factual — is substantially true.”

Smith added: “According to Maddow, because her comment concerned a public issue and Herring could not establish a likelihood of prevailing on its defamation claim, the district court was entitled to strike the complaint pursuant to California’s anti-SLAPP statute,” which aims to protect news media and others from legal intimidation.

Famed attorney Ted Boutrous, representing Maddow and fellow defendants including NBC Universal, said in the YouTube-aired hearing that Herring Networks were  “isolating on those six words, stripped of context, a myopic approach that the Supreme Court and this court have rejected because it would destroy the breathing space for lively and informative debate about public issues that the First Amendment protects.”

He added: “We can’t have speech police parsing the words they way Herring is doing. It would really chill valuable speech.”

For the balance of Ken Stone’s article, go here.

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