The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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 government funded propaganda outfit called Sputnik.' Maddow explained that Sputnik played a role in the Russian government's interference in the 2016 presidential election and had formally registered as a foreign power with the United States Department of Justice." And she added:
[A]mong the giblets the news gods dropped off their plates for us to eat off the floor today is the actual news that this super right wing news outlet that the president has repeatedly endorsed as a preferable alternative to Fox News …. We literally learned today that that outlet the president is promoting shares staff with the Kremlin.
I mean, what? I mean, it's an easy thing to throw out, you know, like an epitaph in the Trump era, right? Hey, that looks like Russian propaganda. In this case, the most obsequiously pro-Trump right wing news outlet in America really literally is paid Russian propaganda. They're [sic] on air U.S. politics reporter is paid by the Russian government to produce propaganda for that government.
The italicized text is what OAN claimed was libelous, but the Ninth Circuit disagreed (applying California law, which follows the Restatement approach I mentioned above):
Maddow's dialogue before and after the contested statement is solely a reiteration of the material in The Daily Beast article. At no point before the contested statement does Maddow "imply the existence of additional, undisclosed facts." Instead, Maddow reports the undisputed facts and then transitions into providing "colorfully expressed" commentary…. By "disclos[ing] the factual basis" of her statement, Maddow reveals that the contested statement was merely her own "interpretation of the facts presented." The audience could "accept or reject [Maddow's] opinion based on their own independent evaluation of the facts" specifically because the undisputed news story is readily distinguishable from Maddow's commentary.
Maddow's use of hyperbolic rhetoric bolsters this conclusion. "[L]oose, figurative, or hyperbolic language … negate[s] the impression" that the contested statement is an assertion of fact. In comparison to the undisputed facts that Maddow reports, the contested statement was particularly emphatic and unfounded: Maddow went from stating that OAN employs a Sputnik employee to stating that OAN reports Russian propaganda. A reasonable person would understand Maddow's contested statement as an "obvious exaggeration" … "sandwiched between precise factual recitations" of The Daily Beast article.
And the court also noted the opinionated nature of Maddow's program:
We agree with the district court's conclusion that the broad context of Maddow's show makes it more likely that her audiences will "expect her to use subjective language that comports with her political opinions." … Although MSNBC produces news, Maddow's show in particular is more than just stating the news—Maddow "is invited and encouraged to share her opinions with her viewers." In turn, Maddow's audience anticipates her effort "to persuade others to [her] position by use of epithets, fiery rhetoric or hyperbole." Therefore, the medium through which the contested statement was made supports Maddow's argument that a reasonable viewer would not conclude the statement implies an assertion of fact.
Focusing one level closer, the tenor of the segment in which Maddow made the contested statement also supports the conclusion that a reasonable viewer would have understood that Maddow was expressing her opinion…. On appeal, Herring [which operates OAN] primarily relies on Unelko to argue that the broad context of the contested statement demonstrates that reasonable viewers would take the statement as factual. Its reliance is misplaced.
In Unelko, the plaintiffs sued Andy Rooney, arguing that his assertion on 60 Minutes that the plaintiffs' product "didn't work" was a defamatory statement of fact. The segment in which the statement was made involved Rooney describing the "'junk' [that] he had received in the mail," including "caps, and a lot of cups," an expensive watch, pictures of himself, an orange peeler, and "an ashtray in the shape of a human lung." Among the "junk" was the plaintiffs' product: "something for the windshield of your car called Rain-X." In describing the product, Rooney notes that he "actually spent an hour one Saturday putting it on the windshield of [his] car." Rooney presumes that "[t]he fellow who makes this … [would] like a commercial or a testimonial … [but i]t didn't work."
We ultimately reversed the district court's grant of Rooney's motion for summary judgment. Although the tenor of the segment was "humorous and satirical," we found that "[t]he humor in Rooney's statement" was derived "from the fact that his report of the product's effectiveness was the antithesis of what its inventor presumably desired." The statement, therefore, "receive[d] no protection based on the overall tenor of [the] segment."
The facts in this case are much different. Maddow's astonishment and the segment's tone of "surprise and glee" were derived from the news presented in The Daily Beast article—a story that Herring does not allege is defamatory. In Unelko, the segment is funny only if Rooney's statement is an assertion of fact, whereas here, Maddow's segment maintains a gleeful tenor not because of Maddow's single line that OAN is "paid Russian propaganda," but because of The Daily Beast's breaking news. Given the broad contexts of the two statements, a reasonable viewer would understand Maddow's statement as colorful commentary and Rooney's statement as a factual assertion of Rain-X's effectiveness.
The general context of Maddow's statement, therefore, "negates the impression that [she] impl[ied] a false assertion of fact." Maddow "fairly describe[d] the general events involved" in The Daily Beast article and "offer[ed her] personal perspective about some of its ambiguities." A reasonable viewer would be able to differentiate between Maddow's commentary and the actual news she is reporting.
Sounds correct to me.