Herring Networks, Inc. v, Maddow, No. 20-55579 (9th Cir. 2021)Annotate this Case
Herring launched the conservative One American News Network (OAN) in 2013. While employed by OAN, Rouz also wrote articles as a freelancer for Sputnik, a Russian state-financed news organization. Herring alleges that Rouz’s work for Sputnik “had no relation to his work for OAN.” In 2019, The Daily Beast published an article entitled “Trump’s New Favorite Channel Employs KremlinPaid Journalist,” asserting that “Kremlin propaganda sometimes sneaks into” Rouz’s OAN segments. On the day the article was published, Maddow, host of The Rachel Maddow Show on MSNBC, ran a segment entitled “Staffer on Trump-Favored Network Is on Propaganda Kremlin Payroll.” The segment ran three and a half minutes.
Herring sued Maddow and others for defamation. Herring did not sue The Daily Beast or its reporter but focused on Maddow’s comment that OAN “really literally is paid Russian propaganda.” Maddow moved to strike the complaint, citing California’s anti-SLAPP (strategic lawsuit against public participation) law. The district court granted the motion. The Ninth Circuit affirmed. Maddow’s “statement is an opinion that cannot serve as the basis for a defamation claim” and Herring failed to show “a probability of succeeding on its defamation claims.” The challenged statement was an obvious exaggeration, cushioned within an undisputed news story; it could not reasonably be understood to imply an assertion of objective fact.
Court Description: Defamation / Anti-SLAAP Motion. The panel affirmed the district court’s judgment granting Appellees’ motion to strike Herring Network, Inc.’s defamation complaint pursuant to California’s anti-SLAPP statute, and dismissing Herring Networks, Inc.’s defamation suit with prejudice. Herring launched One American News Network (OAN) in 2013. Rachel Maddow, host of a show on MSNBC, ran a segment stating that OAN employee Kristen Rouz worked for OAN, but was “also being paid by the Russian government to produce government-funded pro-Putin propaganda for a Russian government funded propaganda outfit called Sputnik.” Herring sued Maddow and related entities for defamation. Maddow filed a motion to strike the complaint pursuant to California’s anti-SLAPP statute, which the district court granted. The panel first addressed Herring’s argument that the district court should have considered five pieces of proffered evidence outside of the pleadings in determining whether to grant Maddow’s motion to strike. Because the motion to strike mounted a legal challenge, not a factual challenge, to Herring’s complaint, the panel held that Herring’s reliance on evidence outside of its complaint in defending against the anti-SLAPP motion was improper and inconsistent with the Federal Rules of Civil Procedure. HERRING NETWORKS V. MADDOW 3 Turning to the merits, the panel held that Maddow’s statement was well within the bounds of what qualified as protected speech under the First Amendment. 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. Finally, the panel held that the district court did not abuse its discretion in dismissing the complaint without leave to amend because Herring never asked to amend, and if it had, amendment would have been futile.