One America Network’s Libel Lawsuit Against Rachel Maddow Rejected by Ninth Circuit
Generally speaking, a statement isn’t libelous if it (1) quotes or refers to an accurate factual assertion, and then (2) expresses an opinion that’s clearly based on that assertion (rather than on undisclosed facts that the speaker claims to know). Thus, to quote the Restatement of Torts:
- A writes to B about his neighbor C: “I think he must be an alcoholic.” A jury might find that this was not just an expression of opinion but that it implied that A knew undisclosed facts that would justify this opinion.
- A writes to B about his neighbor C: “He moved in six months ago. He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair with a portable radio listening to a news broadcast, and with a drink in his hand. I think he must be an alcoholic.” The statement indicates the facts on which the expression of opinion was based and does not imply others. These facts are not defamatory and A is not liable for defamation.
In this morning’s decision in Herring Networks v. Maddow, the Ninth Circuit (in an opinion by Judge Milan Smith, joined by Judge John Owens and District Judge Eduardo Robreno) held that Maddow’s statement about OAN fit the second illustration (which is constitutionally protected opinion). Maddow had referred to a Daily Beast story reporting that Kristen Rouz, an OAN employee, was freelancing for the Russian-government-financed Sputnik News—a factual assertion that OAN didn’t challenge in this lawsuit—and said:
[P]erhaps the single most perfectly formed story of the day, the single most like sparkly story of the entire day is this scoop from reporter Kevin Poulsen at “The Daily Beast” who has sussed out that Trump’s favorite more Trumpier than Fox TV network, the one that the president has been promoting and telling everyone they should watch and is better than Fox, turns out that network has a full time on air reporter who covers U.S. politics who is simultaneously on the payroll of the Kremlin. What?
“Maddow then repeated that ‘at the same time [Rouz] works for Trump’s favorite One America News team, he is also being paid by the Russian government to produce government-funded pro-Putin propaganda for a Russian gove
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