Herring Networks, INC v. Maddow

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9                  UNITED STATES DISTRICT COURT                          
10                SOUTHERN DISTRICT OF CALIFORNIA                         

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    HERRING NETWORKS, INC.,            Case No. 19-cv-1713-BAS-AHG       
12                                                                        
                           Plaintiff,  ORDER GRANTING                    
13                                      DEFENDANTS’ SPECIAL               
                                       MOTION TO STRIKE                  
14        v.                                                              
                                       [ECF No. 18]                      
15   RACHEL MADDOW, et al.,                                               

16                        Defendants.                                     

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19       Plaintiff  Herring  Networks,  Inc.  filed  a  complaint  for  defamation  against 
20  Rachel Maddow; Comcast Corporation; NBCUniversal Media, LLC; and MSNBC 
21  Cable LLC.  (ECF No. 1.)  The claim stems from a statement Rachel Maddow made 
22  on The Rachel Maddow Show on MSNBC.  Soon after Plaintiff filed suit, Defendants 
23  filed a special motion to strike pursuant to California Code of Civil Procedure  
24  §  425.16,  commonly  known  as  the  Anti-Strategic  Lawsuits  Against  Public 
25  Participation (“Anti-SLAPP”) law.  (“Mot.,” ECF No. 18.)  The Court held oral 
26  argument on the Motion on May 19, 2020.  For the reasons discussed below, the 
27  Court GRANTS Defendants’ Motion to Strike.                            
1  I.   Background                                                       
2       Plaintiff  Herring  Networks,  Inc.  owns  and  operates  One  America  News 
3  Network (“OAN”). (“Compl.,” ECF No. 1, ¶ 1.)  On July 22, 2019, reporter Kevin 
4  Poulsen at The Daily Beast published a story called “Trump’s New Favorite Channel 
5  Employs Kremlin-Paid Journalist.”  Poulsen reported that Kristian Rouz, one of the 
6  reporters at OAN, was “on the payroll of the Kremlin’s official propaganda outlet, 
7  Sputnik.”  (“RJN Ex. A,” ECF No. 18-3 (hereinafter, “Daily Beast article”).)1  In 
8  short, Poulsen reported that Rouz has been reporting on U.S. politics for OAN since 
9  August  2017,  and  “[f]or  all  of  that  time,  he’s  been  simultaneously  writing  for 
10  Sputnik, a Kremlin-owned news wire that played a role in Russia’s 2016 election-
11  interference  operation,  according  to  an  assessment  by  the  U.S.  intelligence 
12  community.”  (Id.)  Poulsen opined that “Kremlin propaganda sometimes sneaks into 
13  Rouz’s segments on unrelated matters” and provided examples.  (Id.)  Poulsen also 
14  quoted  former  FBI  agent  Clint  Watts,  who  stated:  “This  completes  the  merger 
15  between Russian state-sponsored propaganda and American conservative media . . . 
16  We used to think of it as ‘They just have the same views’ or ‘They use the same story 
17  leads.’ But now they have the same personnel.”  (Id.)                 
18       Later that day, Rachel Maddow discussed the Daily Beast article on her talk 
19  show, The Rachel Maddow Show, which airs on MSNBC.  The segment was titled: 
20  “Staffer on Trump-favored network is on propaganda Kremlin payroll.”  The Rachel 
21  Maddow  Show:  Staffer  on  Trump-Favored  Network  Is  on  Propaganda  Kremlin 
22  Payroll  (MSNBC   television  broadcast  July  22,  2019),  available  at 
23  https://www.msnbc.com/rachelmaddow/watch/staffer-on-trump-favored-network-
24  is-on-propaganda-kremlin-payroll-64332869743).  Maddow opened the segment by 
25  informing  viewers  about  OAN,  calling  it  a  “boutique  little  news  outlet  that  is 
26  designed specifically for Trump-mega fans.”  She pointed out that President Trump 
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1  previously praised OAN’s ratings on Twitter and gave OAN a press pass to the White 
2  House.  Maddow then stated that she has the “most perfectly formed story of the day” 
3  and presented Kevin Poulsen’s Daily Beast article.  She stated the article reports that 
4  OAN, which is “Trump’s favorite, more Trump-ier than Fox TV network[,] . . . has 
5  a full-time on-air reporter who covers U.S. politics, who is also simultaneously on 
6  the payroll of the Kremlin.”  The reporter is being paid to produce “pro-Putin 
7  propaganda” for the Russian-funded network Sputnik.  Maddow states, “there is a lot 
8  of news today, but among the giblets the news gods dropped off their plates for us to 
9  eat off the floor today, is the actual news that this super right-wing news outlet that 
10  the President has repeatedly endorsed . . . we literally learned today that that outlet 
11  the President is promoting shares staff with the Kremlin.  I mean, what?”  She laughs 
12  and soon after says, “in this case, the most obsequiously pro-Trump right wing news 
13  outlet in America really literally is paid Russian propaganda.  Their on-air U.S. 
14  politics reporter is paid by the Russian government to produce propaganda for that 
15  government.” (emphasis added).  The underlined portion of the sentence highlights 
16  where  Plaintiff  takes  issue.    Plaintiff  sued  for  defamation.    Soon  afterwards, 
17  Defendants filed the present Motion.                                  
18  II.  Legal Standard                                                   
19       California’s anti-SLAPP statute is intended to “provide a procedural remedy 
20  to dispose of lawsuits that are brought to chill the valid exercise of constitutional 
21  rights.”  Rusheen v. Cohen, 37 Cal. 4th 1048, 1055–56 (2006).  The anti-SLAPP law 
22  provides in relevant part:                                            
23       A cause of action against a person arising from any act of that person 
        in furtherance of the person’s right of petition or free speech under the 
24                                                                        
        United States Constitution or the California Constitution in connection 
25       with a public issue shall be subject to a special motion to strike, unless 
        the court determines that the plaintiff has established that there is a 
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        probability that the plaintiff will prevail on the claim.        
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1       Courts apply a two-step process to determine whether an action is subject to 
2  an anti-SLAPP special motion to strike.  Navellier v. Sletten, 29 Cal. 4th 82, 88 
3  (2002).  First, the defendant must establish that “the challenged cause of action is one 
4  arising from protected activity.”  Id.  Once the defendant makes a threshold showing 
5  that the act in question is protected, the burden shifts to the plaintiff, who must 
6  establish “a probability of prevailing on the claim.”  Id.            
7  III.  Analysis                                                        
8       A.   Procedural Issues                                           
9       “For purposes of the Federal Rules of Civil Procedure, a motion brought on 
10  anti-SLAPP grounds can either be analogous to a motion to dismiss or a motion for 
11  summary judgment.”  Clifford v. Trump, 339 F. Supp. 3d 915, 922 (C.D. Cal. 2018).  
12  Here, Defendants’ Motion is analogous to a motion to dismiss because Defendants 
13  move to strike based on legal arguments.  (See Mot. at 7.)  Defendants are not 
14  “providing alternate facts to challenge the allegations” in the complaint, so the 
15  motion is not analogous to a motion for summary judgment.  See Clifford, 339 F. 
16  Supp. 3d at 922 (citing Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. 
17  Progress, 890 F.3d 828, 834 (9th Cir.), amended, 897 F.3d 1224 (9th Cir. 2018).) 
18       The issue then becomes what the Court may consider in evaluating the present 
19  Motion.  For the second prong of the anti-SLAPP test under California law, to show 
20  a probability of prevailing on the merits of its claim, a plaintiff “must demonstrate 
21  the complaint is legally sufficient and supported by a sufficient prima facie showing 
22  of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is 
23  credited.”  Wilcox v. Superior Court, 27 Cal. App. 4th 809, 823 (1994).  “In making 
24  its determination, the court shall consider the pleadings, and supporting and opposing 
25  affidavits stating the facts upon which the liability or defense is based.”  Cal. Code 
26  Civ. Proc. § 425.16(b)(2).  The Ninth Circuit has noted there are “conflicts between 
27  California’s anti-SLAPP law’s procedural provisions and the Federal Rules of Civil 
1  between a state procedural rule and the federal rules, the federal rules of procedure 
2  will prevail.”  Id.  at 834.  Specifically, when a court considers a motion to strike 
3  “based on alleged deficiencies in the plaintiff’s complaint, the motion must be treated 
4  in the same manner as a motion under Rule 12(b)(6).”  Id.             
5       Plaintiff attaches various declarations and exhibits to its opposition brief.  
6  (ECF Nos. 19-1 to 19-11.)  Plaintiff also moves ex parte to supplement the record 
7  with a video of the December 9, 2019 episode of Hardball with Chris Matthews that 
8  aired on MSNBC.  (ECF No. 21.)  Because Defendants’ Motion is analogous to a 
9  motion to dismiss, “the motion must be treated in the same manner as a motion under 
10  Rule 12(b)(6).”  Planned Parenthood, 890 F.3d at 834 (concluding that the district 
11  court correctly applied a Rule 12(b)(6) standard to the motion to strike “challenging 
12  the legal sufficiency of Plaintiff’s complaint” and “did not err in declining to evaluate 
13  the factual sufficiency of the complaint at the pleadings stage”).2   
14       In evaluating a Rule 12(b)(6) motion, the Court considers the complaint as 
15  well as “material which is properly submitted as part of the complaint,” which means 
16  the documents are either “physically attached to the complaint” or the “complaint 
17  necessarily relies” on them and their authenticity is not contested.  Lee v. City of Los 
18  Angeles, 250 F.3d 668, 688 (9th Cir. 2001).  “Even if a document is not attached to 
19  a complaint, it may be incorporated by reference into a complaint if the plaintiff 
20  refers extensively to the document or the document forms the basis of the plaintiff’s 
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   2 At oral argument, Plaintiff argued that Defendants’ motion could be converted to a motion for 
23  summary judgment and the Court could consider Plaintiff’s documents.  But in determining 
   whether an anti-SLAPP motion is analogous to a motion to dismiss or motion for summary 
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   judgment, the focus is on the defendant’s arguments.  Here, Defendants chose to bring their anti-
25  SLAPP motion as one analogous to a motion to dismiss.  The case law provides no indication that 
   when an anti-SLAPP motion challenges the legal sufficiency of the complaint and does not provide 
26  alternative facts, that the plaintiff can then provide more facts and ask that the motion be converted 
   to a motion for summary judgment.  Cf. Ranch Realty, Inc. v. DC Ranch Realty, LLC, 614 F. Supp. 
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   2d 983, 988 (D. Ariz. 2007) (“Plaintiff does not provide any support for its fundamental assumption 
1  claim.”  United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). 
2       The Court finds it appropriate to incorporate by reference the Daily Beast 
3  article as well as the relevant segment of The Rachel Maddow Show.  (ECF Nos. 18-
4  2, 18-3.)  Both are referred to extensively in the complaint.  The Court declines to 
5  consider the declarations and exhibits submitted by Plaintiff (ECF Nos. 19-1 to 19-
6  11) and the Hardball video, as this information is not attached to the complaint, relied 
7  on by the complaint, or judicially noticeable.  Accordingly, the Court DENIES 
8  Plaintiff’s ex parte motion.  (ECF No. 21.)                           
9       B.   Protected Activity                                          
10       Defendants have the burden to establish that Maddow’s actions alleged in the 
11  complaint arise from protected activity.                              
12       Section 425.16, subdivision (e) sets forth four categories of protected activity.  
13  Subdivision  (e)(4)  defines  protected  activity  to  include  “any  .  .  .  conduct  in 
14  furtherance of the exercise of the constitutional right of petition or the constitutional 
15  right of free speech in connection with a public issue or an issue of public interest.”  
16  The “public interest” requirement is construed broadly to include “any issue in which 
17  the public is interested.”  Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1042 
18  (2008)  (emphasis  omitted).    Plaintiff  agrees  that  Maddow  was  exercising  her 
19  constitutional right of free speech and her statements concerned a public issue. Thus, 
20  Plaintiff does not contest that the first prong of the anti-SLAPP statute is met.  
21  (“Opp’n,” ECF No. 19, at 5–6 n.1.)  The Court agrees and turns to the second prong. 
22       C.   Probability of Prevailing on the Defamation Claim           
23       In  this  second  step,  Plaintiff  must  show  a  “reasonable  probability”  of 
24  prevailing on the challenged claim.  Metabolife Intern. Inc. v. Wornick, 264 F.3d 832, 
25  840  (9th  Cir.  2001).    Plaintiff  is  suing  for  defamation.    Under  California  law, 
26  defamation “involves the intentional publication of a statement of fact which is false, 
27  unprivileged, and has a natural tendency to injure or which causes special damage.”  
1  prevail on the merits of its claim, Defendants make two arguments in the alternative: 
2  first, Maddow’s statement is one of opinion not of fact (i.e., the statement is not 
3  defamatory), and second, the statement is substantially true.         
4            1.   Opinion vs. Fact                                       
5       The  threshold  question  “in  a  defamation  claim  is  ‘whether  a  reasonable 
6  factfinder  could  conclude  that  the  contested  statement  implies  an  assertion  of 
7  objective fact.’  If the answer is no, the claim is foreclosed by the First Amendment.” 
8  Gardner v. Martino, 563 F.3d 981, 987 (9th Cir. 2009).  This is because “‘pure 
9  opinion’—that is, statements that do not imply facts capable of being proved true or 
10  false” is protected.  Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 n.2 (9th Cir. 1990), 
11  cert. denied, 499 U.S. 961 (1991).                                    
12       To determine whether a statement implies a factual assertion, the court must 
13  examine the “totality of the circumstances” in which the statement was made.  First, 
14  the court looks at “the statement in its broad context, which includes the general tenor 
15  of the entire work, the subject of the statements, the setting, and the format of the 
16  work.”  Underwager v. Channel 9 Austl., 69 F.3d 361, 366 (9th Cir. 1995).  Second, 
17  the court considers the “specific context and content of the statements, analyzing the 
18  extent of figurative or hyperbolic language used and the reasonable expectations of 
19  the audience in that particular situation.”  Id.  Finally, the court considers whether 
20  the “statement itself is sufficiently factual to be susceptible of being proved true or 
21  false.”  Id.                                                          
22       “Whether an allegedly defamatory statement is one of opinion or fact is a 
23  question of law.”  Gardner, 563 F.3d at 986; Dworkin v. Hustler Mag., Inc., 668 
24  F.Supp. 1408, 1415 (C.D. Cal. 1987) (“It is for the court to decide [whether a 
25  statement is actionable defamation] in the first instance as a matter of law.”), aff’d, 
26  867 F.2d 1188, 1193–94 (9th Cir. 1989).  But “if a statement is ‘susceptible of 
27  different constructions, one of which is defamatory, resolution of the ambiguity is a 
1  2002); see also Campanelli v. Regents of Univ. of Cal., 44 Cal. App. 4th 572, 578 
2  (1996).    The  Court  now  turns  to  the  three  factors  under  the  totality  of  the 
3  circumstances analysis.                                               
4                 a.   Broad Context                                     
5       “Context can be determinative that a statement is opinion and not fact, for the 
6  context of a statement may control whether words were understood in a defamatory 
7  sense.”  Koch v. Goldway, 817 F.2d 507, 509 (9th Cir. 1987).          
8       The Court first considers the medium in which the statement was made.  
9  Maddow made the statement on her talk show segment that aired on MSNBC.  “The 
10  more statements lack the formality and polish typically found in documents in which 
11  a reader would expect to find facts, the more likely the statements are nonactionable 
12  opinion.”  Unsworth v. Musk, No. 2:18-CV-08048-SVW-JC, 2019 WL 4543110, at 
13  *6 (C.D. Cal. May 10, 2019); see Partington v. Bugliosi, 56 F.3d 1147, 1154–55 (9th 
14  Cir.  1995)  (finding  that  the  general  tenor  of  a  “made-for-television  movie”  or 
15  “docudrama”  “tends  to  negate  the  impression  that  the  statements  involved 
16  represented a false assertion of objective fact”); Cochran v. NYP Holdings, Inc., 58 
17  F. Supp. 2d 1113, 1123 (C.D. Cal. 1998) aff’d, 210 F.3d 1036 (9th Cir. 2000) (noting 
18  that the alleged defamatory statement was located in a column in a section of a 
19  newspaper that “generally contain[s] opinion columns”).               
20       The Court may consider whether the forum is one where a “reader would be 
21  likely  to  recognize”  that  statements  “generally  represent  the  highly  subjective 
22  opinions  of  the  author  rather  than  assertions  of  verifiable,  objective  facts.”  
23  Partington, 56 F.3d at 1154.  On one hand, a viewer who watches news channels 
24  tunes in for facts and the goings-on of the world.  MSNBC indeed produces news, 
25  but this point must be juxtaposed with the fact that Maddow made the allegedly 
26  defamatory statement on her own talk show news segment where she is invited and 
27  encouraged to share her opinions with her viewers.  At least according to Plaintiff, 
1  Maddow is a “liberal television host” who expresses her views regarding Russia and 
2  President Trump.  (Compl. ¶¶ 20, 31.)  Maddow does not keep her political views a 
3  secret, and therefore, audiences could expect her to use subjective language that 
4  comports with her political opinions.  Thus, Maddow’s show is different than a 
5  typical news segment where anchors inform viewers about the daily news.  The point 
6  of Maddow’s show is for her to provide the news but also to offer her opinions as to 
7  that news.  Therefore, the Court finds that the medium of the alleged defamatory 
8  statement makes it more likely that a reasonable viewer would not conclude that the 
9  contested statement implies an assertion of objective fact.           
10       The Court now turns to the segment as a whole.  The “general tenor” of 
11  Maddow’s segment is a report on the Daily Beast article, and Maddow’s tone could 
12  be described as surprise and glee at the unexpectedness of the story.  She begins by 
13  calling the story the “single most like sparkly story” in what had been “a more 
14  ridiculous than most day in the news.”  She calls the news one among “the giblets 
15  the news gods dropped off their plates for us to eat off the floor today.”  Maddow 
16  reports  that  OAN  shares  staff  with  the  Kremlin  and  discusses  the  allegedly 
17  defamatory Russia connection, then follows this by saying (while laughing), “I mean, 
18  what?”  She concludes the segment by saying, with a shake of the head, “I mean, this 
19  is the kind of news we are supposed to take in stride these days.  And we do our 
20  best.”                                                                
21       A holding by the Ninth Circuit in Partington is applicable and worth quoting 
22  in full:                                                              
        When, as here, an author writing about a controversial occurrence fairly 
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        describes  the  general  events  involved  and  offers  his  personal 
24       perspective  about  some  of  its  ambiguities  and  disputed  facts,  his 
        statements  should  generally  be  protected  by  the  First  Amendment. 
25                                                                        
        Otherwise,  there  would  be  no  room  for  expressions  of  opinion  by 
26       commentators, experts in a field, figures closely involved in a public 
        controversy, or others whose perspectives might be of interest to the 
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        public. Instead, authors of every sort would be forced to provide only 
        would be little difference between the editorial page and the front page, 
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        between  commentary  and  reporting,  and  the  robust  debate  among 
2       people with different viewpoints that is a vital part of our democracy 
        would surely be hampered.                                        
3                                                                        
4  Partington, 56 F.3d at 1154.  This is true here too; Maddow “fairly describe[d]” the 
5  article  that  formed  the  basis  for  her  segment,  and  she  added  in  her  colorful 
6  commentary and opinions.  Viewers expect her to do so, as it is indeed her show, and 
7  viewers watch the segment with the understanding that it will contain Maddow’s 
8  “personal and subjective views” about the news.  See id.  Thus, the Court finds that 
9  as a part of the totality of the circumstances, the broad context weighs in favor of a 
10  finding that the alleged defamatory statement is Maddow’s opinion and exaggeration 
11  of the Daily Beast article, and that reasonable viewers would not take the statement 
12  as factual.                                                           
13                 b.   Specific Context                                  
14       The Court now considers the specific context.  Even where the broad context 
15  is one of opinion, it is possible that a particular statement may imply an assertion of 
16  objective fact and thus constitute actionable defamation.  Partington, 56 F.3d at 
17  1155.  In analyzing the specific context “and the content of the statements[,]” the 
18  Court  analyzes  “the  extent  of  figurative  or  hyperbolic  language  used  and  the 
19  reasonable expectations of the audience in that particular situation.”  Underwager, 
20  69 F.3d at 366.  Where the language used is “loose, figurative, or hyperbolic,” this 
21  tends to negate the impression that a statement contains an assertion of verifiable 
22  fact.  See Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990).  A hyperbole is an 
23  exaggeration especially “to an excessive degree” or “a manner of speaking that 
24  depicts something as being much bigger, smaller, worse, etc. than it really is.”  
25  HYPERBOLE, Black’s Law Dictionary (11th ed. 2019).  Hyperbolic statements are 
26  not actionable because the listener knows that he or she should not accept the 
27  statements as fact.  See Eric Scott Fulcher, Rhetorical Hyperbole and the Reasonable 
1  Defamation,  38  Ga.  L.  Rev.  717,  720  (2004)  (“The  primary  rationale  behind 
2  precluding liability for statements that qualify as rhetorical hyperbole is that the 
3  listener  or  reader  knows  that  the  statements  are  not  to  be  taken  literally,  and, 
4  therefore, such statements do not damage the subject’s reputation.”).   
5       A main issue here is whether Maddow’s statement was hyperbolic.  Because 
6  Maddow used the word “literally” (i.e., OAN is “literally” paid Russian propaganda), 
7  Plaintiff asserts it would be unreasonable to find the statement to be hyperbolic.  
8  What is noteworthy about the word “literally” is its conflicting definitions.  The first 
9  definition of the word is: “in a literal sense or manner: such as . . . in a way that uses 
10  the ordinary or primary meaning of a term or expression [or] used to emphasize the 
11  truth  and  accuracy  of  a  statement  or  description.”    Merriam-Webster  Online 
12  Dictionary, https://www.merriam-webster.com/dictionary/literally (last visited May 
13  19, 2020).  But the alternative definition is: “in effect : Virtually — used in an 
14  exaggerated way to emphasize a statement or description that is not literally true or 
15  possible.”  Id.  Further, under either definition, the term can “lose[] its meaning when 
16  considered” in context.  See Knievel v. ESPN, 393 F.3d 1068, 1074 (9th Cir. 2005).  
17  Although Maddow used the word “literally,” this does not necessarily mean the 
18  phrase should be taken to be factual.  Nowadays, as evidenced by the two conflicting 
19  definitions of the word “literally,” use of the word can be hyperbolic.   
20       The Court must therefore consider the language surrounding the allegedly 
21  defamatory statement to put into perspective the content of the statement.  There are 
22  certainly facts presented in the segment that are not in dispute.  It is undisputed that 
23  the Daily Beast article was published, wherein the author Kevin Poulsen opined that 
24  Kristian Rouz has been reporting on U.S. politics for OAN and “simultaneously 
25  writing for Sputnik, a Kremlin-owned news wire.”  (RJN Ex. A.)  Rouz “is a Russian 
26  national on the payroll of” Sputnik.  Poulsen then detailed a few of Rouz’s reports 
27  for OAN, pointing out that “Kremlin propaganda sometimes sneaks into Rouz’s 
1  owned media, where he continues to file stories daily, primarily on economic news.”  
2  (Id.)                                                                 
3       There is no dispute that Maddow discussed this article on her segment and 
4  accurately presented the article’s information.  Indeed, the facts in the title of her 
5  segment are not alleged to be defamatory: “Staffer on Trump-favored network is on 
6  propaganda Kremlin payroll.”   Plaintiff agrees that President Trump has praised 
7  OAN, and Rouz, a staffer for OAN, writes articles for Sputnik News which is 
8  affiliated with the Russian government.  (See Compl. ¶ 24.)  Rouz is paid for his work 
9  by Sputnik News.  (Id. ¶ 26.)  Maddow provided these facts in her segment before 
10  making the allegedly defamatory statement.                            
11       The Ninth Circuit has held that “when a speaker outlines the factual basis for 
12  his conclusion, his statement is protected by the First Amendment.”  Partington, 56 
13  F.3d at 1156; see also Dodds v. Am. Broad. Co., 145 F.3d 1053, 1067 (9th Cir. 1998) 
14  (holding an opinion “based on an implication arising from disclosed facts is not 
15  actionable when the disclosed facts themselves are not actionable”); Standing Comm. 
16  On Discipline of U.S. Dist. Court for Cent. Dist. of Cal. v. Yagman, 55 F.3d 1430, 
17  1439 (9th Cir. 1995) (“A statement of opinion based on fully disclosed facts can be 
18  punished only if the stated facts are themselves false and demeaning. . . . When the 
19  facts underlying a statement of opinion are disclosed, readers will understand they 
20  are  getting  the  author’s  interpretation  of  the  facts  presented;  they  are  therefore 
21  unlikely  to  construe  the  statement  as  insinuating  the  existence  of  additional, 
22  undisclosed facts.”).                                                 
23       The basis for Maddow’s allegedly defamatory statement is clearly the story 
24  from the Daily Beast, which she presents truthfully and in full.  Thus, she sufficiently 
25  provides listeners with the factual basis for her statement.  Maddow “does not even 
26  hint that her opinion is based on any additional, undisclosed facts not known to the 
27  public.”  See Cochran, 58 F. Supp. 2d at 1122; Copp v. Paxton, 45 Cal. App. 4th 829, 
1  allegation of undisclosed defamatory facts as the basis for the opinion.” (citation 
2  omitted)).  Viewers were presented with the details of the story before hearing the 
3  alleged defamatory statement and no additional facts were implied.    
4       Plaintiff argues that Maddow did not present the full story, namely that “Rouz 
5  has no decision-making authority with respect to the content that is aired on OAN” 
6  and was “merely a freelancer for Sputnik News.”  (Opp’n at 16 (citing Milkovich, 
7  497 U.S. at 18–19 (“Even if the speaker states the facts upon which he bases his 
8  opinion, if those facts are . . . incomplete . . . the statement may still imply a false 
9  assertion of fact.”)).)  But Milkovich does not require the author to include every 
10  possible fact before giving an opinion.  See Suzuki Motor Corp. v. Consumers Union 
11  of U.S., Inc., 330 F.3d 1110, 1117 (9th Cir. 2003) (explaining that the logic behind 
12  Milkovich “is straightforward and unassailable: When a publisher prints an opinion 
13  but doesn’t state the basis for it, the reader may infer a factual basis that doesn’t exist. 
14  But when a publisher accurately discloses the facts on which he bases his opinion, 
15  the reader can gauge for himself whether the factual basis adequately supports the 
16  opinion” (citation omitted)); Turner v. Wells, 198 F. Supp. 3d 1355, 1369 (S.D. Fl. 
17  2016) (“The dispositive question in Milkovich was not . . . simply whether the author 
18  left out facts that may have painted the plaintiff in a more positive light . . . .”).  
19  Maddow accurately presented the Daily Beast article and the basis for her statement; 
20  these  facts  were  true  and  not  misleading.    Even  if  Maddow  left  out  certain 
21  information, this does not necessarily mean her statement was defamatory; she did 
22  not “impl[y] a knowledge of facts which lead to the conclusion” that her statement 
23  was factual.  See Milkovich, 497 U.S. at 18–19.                       
24       Further, in the sentence immediately following the contested sentence that 
25  OAN is “literally paid Russia propaganda,” Maddow said, almost as a clarification, 
26  that OAN’s “on-air U.S. politics reporter is paid by the Russian government to 
27  produce propaganda for that government.”  And, at the time Maddow made the 
 |   ||accompanied by the text:  “One of the on-air reporters at the 24-hour network is a 
 2   ||Russian  national  on  the  payroll  of  the  Kremlin’s  official  propaganda  outlet, 
 3 || Sputnik.’”?  Thus, Maddow immediately qualified the allegedly defamatory statement 
 4 || with a factual clarification and viewers were seeing accurate information regarding 
 5   ||OAN on the screen while listening to Maddow. 
 6         In  Cochran,  the  New  York  Post  published  a  column  wherein  the  author 
 7 || discussed Jonnie Cochran and his defense of O.J. Simpson.  58 F. Supp. 2d 1113.  In 
 8 || the column, the author stated, “history reveals that [Cochran] will say or do just about 
 9 || anything to win, typically at the expense of the truth.”  Cochran sued for defamation. 
10   ||In  analyzing  the  statement,  the  court  noted  that  “the  specific  context  [of  the 
11   ||statement]  is  a  collection  of  opinions,  colorfully  expressed,  which  renders  the 
12   ||statement at issue simply more rhetorical hyperbole.”  Jd. at 1124.  The language of 
13   ||the  column  was  “loose,  figurative  and  hyperbolic.”   Jd.   The  audience  “would 
14   ||reasonably expect the alleged defamatory statement to constitute [] opinion, tucked 
15   |/in as it is, among numerous other statements of opinion in a recognizable opinion 
16   |}column.”  □□□  at  1125.  The court concluded that a reasonable factfinder could not 
17 || conclude that the statement at issue is sufficiently factual to be susceptible of being 
18 
19   ||? The Court finds that what viewers saw on screen while listening to Maddow is important to put 
    the statement into context, and the following picture is what was visible on the screen at the moment 
20 || Maddow made the allegedly defamatory statement: 
21  ||   ge           gg         agen 
              DOTS 
                Trump's New Favorite Channel Employs Kremlin- 
23              Paid Journalist 
24              PEt Ty  .                         □      . 
         One of the on-air reporters at the 24-hour network is a Russian 
5        national on the payroll of the Kremlin's official propaganda 
         outlet, Sputnik. 
26 
27 
28              oe  AP PE   ese      

1  proven true or false.  Id. at 1126.                                   
2       Here, Maddow had inserted her own colorful commentary into and throughout 
3  the segment, laughing, expressing her dismay (i.e., saying “I mean, what?”) and 
4  calling the segment a “sparkly story” and one we must “take in stride.”  For her to 
5  exaggerate the facts and call OAN Russian propaganda was consistent with her tone 
6  up to that point, and the Court finds a reasonable viewer would not take the statement 
7  as factual given this context.  The context of Maddow’s statement shows reasonable 
8  viewers would consider the contested statement to be her opinion.  A reasonable 
9  viewer would not actually think OAN is paid Russian propaganda, instead, he or she 
10  would follow the facts of the Daily Beast article; that OAN and Sputnik share a 
11  reporter  and  both  pay  this  reporter  to  write  articles.    Anything  beyond  this  is 
12  Maddow’s opinion or her exaggeration of the facts.                    
13       In sum, when the total context surrounding Maddow’s comment is considered, 
14  the  Court  finds  that  the  context  weighs  towards  a  finding  that  the  statement 
15  constitutes opinion and rhetorical hyperbole protected under the First Amendment. 
16                 c.   Susceptibility of Being Proven True or False      
17       The Court last considers whether the statement is susceptible of being proven 
18  true or false.                                                        
19       In Unsworth v. Musk, the court evaluated a plaintiff’s defamation suit against 
20  Elon Musk, brought because Musk had issued a tweet calling the plaintiff “pedo 
21  guy.”    2019  WL  4543110.    In  evaluating  the  plaintiff’s  defamation  suit,  and 
22  specifically under the factor of susceptibility of the statement being proven true or 
23  false, the court found that “Defendant’s tweets were susceptible of being proved true 
24  or false because Plaintiff either is a pedophile or he is not and, if he were, evidence 
25  could prove it.”  Id. at *8.  Further, the Ninth Circuit in Yagman discussed the 
26  plaintiff’s use of the term “dishonest” when describing a judge, and the court found 
27  that the statement was “of rhetorical hyperbole, incapable of being proved true or 
1  “drunk on the bench” was one that “implies actual facts that are capable of objective 
2  verification.”  Id.; see also Rooney, 912 F.2d at 1055 (concluding that defendant 
3  Rooney’s opinion that a wind-shield treatment product “didn’t work” was “based on 
4  factual observations to a sufficient extent to imply an assertion of fact”); Cochran, 
5  58 F. Supp. 2d at 1125 (asking whether there is any “core of objective evidence upon 
6  which this Court could verify the allegation”).  Here, taken in isolation, the statement 
7  that OAN is “literally paid Russia propaganda” is capable of verification.  Either 
8  OAN receives money from the Russian government or it does not.  Thus, this factor 
9  weighs in favor of a finding that viewers could conclude that the statement implied 
10  an assertion of objective fact.                                       
11                 d.   Summary                                           
12       By protecting speakers whose statements cannot reasonably be interpreted as 
13  allegations of fact, courts “provide[ ] assurance that public debate will not suffer for 
14  lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally 
15  added much to the discourse of our Nation.”  Milkovich, 497 U.S. at 20 (quoting 
16  Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 53–55 (1988)).  That is the case here. 
17       Considering the totality of the circumstances—including the general context 
18  of  the  statements,  the  specific  context  of  the  statements,  and  the  statements’ 
19  susceptibility of being proven true or false—a reasonable factfinder could only 
20  conclude that the statement was one of opinion not fact.              
21  IV.  Conclusion                                                       
22       For the foregoing reasons, the Court finds that the contested statement is an 
23  opinion that cannot serve as the basis for a defamation claim.  Plaintiff has not shown 
24  a probability of succeeding on its defamation claims, thus, the Court GRANTS 
25  Defendants’ Special Motion to Strike.  Finally, because the Court grants the Motion, 
26  Defendants may file a motion for attorney’s fees and costs.  See Cal. Civ. Proc. Code 
27  § 425.16(c)(1) (If the movant prevails on a special motion to strike, it is “entitled to 
 |  || Judge Goddard. 
 2         Because there is no set of facts that could support a claim for defamation based 
 3   |}on  Maddow’s  statement,  the  complaint  is  dismissed  with  prejudice.  After 
 4    Defendants’ motion for attorney’s fees is resolved, the Court will instruct the Clerk 
 5   ||to close this case. 
 6         IT IS SO ORDERED. 
 7                                                 /\                  
 g  || DATED:  May 22, 2020                     as dg 5 (Hiphan  6 
 9                                               United States District Judge 
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