Rachel Maddow has found herself in the midst of a legal battle in California for allegedly defaming a conservative news network, One America News (OAN) Network, by stating that the network, “really, literally is paid Russian propaganda.” While some have opined that Maddow has shown “a pattern of misleading and dishonest asymmetry” in her reporting — an indicia of poor journalistic skills — this is an interesting case since it highlights the limitations of defamation law. She will most likely have the case tossed out.
However, in court filed documents, Maddow’s attorney referred to her statement as “rhetorical hyperbole,” that is, a ridiculous overstatement — an exaggeration — that cannot be taken literally.
Is It Rhetorical Hyperbole?
In determining whether a statement is rhetorical hyperbole, California courts usually consider the ‘totality of the circumstances’. This includes determining how the average viewer would have understood the statement. To make such a determination, the court would most likely have to consider the context in which the statement was made.
In MSNBC’s nightly program The Rachel Maddow Show, Maddow begins by discussing a news article:
… [R]eporter Kevin Paulson at “The Daily Beast”  has sussed out that Trump`s favorite …[TV] network has a full time on air reporter who covers U.S. politics who is simultaneously on the payroll of the Kremlin. What?
Because at the same time he 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. Sputnik, of course, had a key role in the Russian government`s intervention in the 2016 election to help Trump, according to the intelligence committee`s assessment of that attack.
Sputnik has also formally registered with the U.S. Justice Department as an agent of a foreign power. … We literally learned today that that outlet the president is promoting shares staff with the Kremlin.
Maddow then states:
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 on air . [Their] politics reporter is paid by the Russian government to produce propaganda for that government.
Clearly, Maddow’s attorney is wrong. Her statements cannot reasonably be considered an exaggeration. She explains that the basis of her conclusion that OAN is Russian propaganda because:
- OAN is on the Kremlin’s payroll,
- the reporter works for a Russian ‘outfit’, Sputnik, that has registered as an agent of a foreign power,
- the Russian government, using Sputnik, intervened in the 2016 election,
- OAN shares staff with the Kremlin, and
- since the reporter is being paid by the Russian government, OAN is literally Russian propaganda.
Given the context, her attorney may not be able to convince a judge that the statements are rhetorical hyperbole. Maddow clearly meant to draw a link between OAN being a Russian agent because of its “pro-Trump” views. Under the totality of the circumstances test, the court would also need to consider that Maddow has established herself as a prominent left leaning liberal voice. She has an audience that considers her as a journalist who disseminates the facts. Therefore, Maddow’s statements cannot reasonably be considered as rhetoric hyperbole.
Maddow’s Potential Defenses
That being said, although, one may question Maddow’s journalistic skills, nonetheless, she would probably succeed in getting this case thrown out of court. Maddow’s attorneys may argue the following:
First Defense: No defamation per se
Defamation in California requires that a statement is made by one individual about another, when the statement (1) is false and (2) causes harm to a person’s business profession or occupation. Harm is generally presumed when it is alleged that the plaintiff is involved in criminal activity or behavior that is incompatible with the proper conduct of his business, trade or profession — cases referred to as defamation per se — meaning the statement(s) is defamatory on its face.
In its complaint, OAN has alleged defamation per se because Maddow’s “statement amounts to a charge of treason and disloyalty to the United States of America,” and thus “damaging on its face to Plaintiff’s business and reputation.”
Was Maddow’s Statement Damaging Enough to OAN’s Reputation to Constitute Defamation per se?
To succeed in a defamation per se case, the first question becomes whether Maddow damaged OAN’s reputation by alleging that it was involved in any criminal activity or acted in any manner that is incompatible with the proper conduct of its trade/profession?
Contrary to OAN’s allegation, claiming a network to be Russian propaganda does not imply either being involved in treachery or being disloyal. In fact, claiming one to be involved in Russian propaganda only implies that OAN is “literally” registered (or should register) under the Foreign Agents Registration Act. There is nothing criminal or incompatible about this implication. For example, prominent Russian news network, Russia Today (RT) America, has registered under the act. While RT America might be Russian propaganda — and one may or may not agree with its view point or news — no one can reasonably claim RT to be committing treachery or being disloyal to America; it is operating legally in compliance with US laws.
It should be noted, OAN’s allegation of adverse business consequences (e.g., loss profits, advertising, etc.) to its business due to Maddow’s statement may qualify for defamation per quod, an allegation not made in the complaint (since it requires proving damages). OAN is perhaps relying on the matter to be determined as defamation “per se” since otherwise proving damages to the network would be very difficult. In fact, one may argue that Maddow may have publicized the OAN network making it very difficult to prove resulting damages.
Nonetheless, the defamation per se case fails.
Second Defense: OAN Has Not Alleged Actual Malice
a. Corporations Can be Public Figures
Although neither the Ninth Circuit nor California Supreme Court has addressed the question when a corporation can be a public figure for defamation purposes, the Fifth Circuit has addressed this issue. To determine whether a corporation is a general purpose public figure, the following factors are considered:
(1) the notoriety of the corporation to the average individual in the relevant geographical area;
(2) the nature of the corporation’s business; and
(3) the frequency and intensity of media scrutiny that the corporation normally receives.
Snead v. Redland Aggregates LTD, 998 F.2d 1325 (5th Cir. 1993). See also, Isuzu Motors Ltd. v. Consumers Union of U.S., Inc., 66 F. Supp. 2d 1117 (C.D. Cal. 1999).
b. OAN’s Admission
Here, OAN does not really help its own case. In the complaint it states:
Plaintiff owns and operates One America News Network (“OAN”), an independent media organization focused on providing national and international news coverage. OAN’s news channel has risen rapidly in prominence and popularity. OAN has become an important voice in American news, providing Americans with a conservative alternative to the major liberal news outlets.
In just a few years, OAN has become the fourth-highest rated national news network as measured by a leading cable provider and is greatly outperforming other emerging cable news networks. OAN is a leading conservative voice in American news.
As can be reasonably inferred, (1) OAN admits notoriety– the fourth highest rated nationally; (2) It’s nature of business involves providing national and international news coverage; and (3) being in the news industry, OAN is bound to have media scrutiny on its articles and publications.
Thus, for the purpose of defamation, OAN is a public figure.
c. Actual Malice
The law requires that public figures must also prove the statement was made with “actual malice.” This means, OAN must allege and prove that Maddow knew her statement was false, yet intentionally decided to make the statement anyway. The standard of proof to provide a showing of malice is extremely high. In this case, OAN would also have to prove that Maddow knew that Paulson’s article was false, and yet intentionally disregarded this fact. Here, OAN has cursorily stated that Maddow acted with malice, however, it does not make an allegation linking Maddow’s actions to intentional disregard of the truth or any knowledge of falsity. Thus, the complaint fails to allege an action of defamation on this ground as well.