Herring Networks, Inc. v. Maddow

445 F.Supp.3d 1042

HERRING NETWORKS, INC., Plaintiff,

v.Rachel MADDOW, et al., Defendants.

Case No. 19-cv-1713-BAS-AHG

United States District Court, S.D. California.

Signed May 22, 2020

Amnon Zvi Siegel, Miller Barondess, LLP, Los Angeles, CA, for Plaintiff.

Nathaniel Lesser Bach, Theodore Joseph Boutrous, Jr., Scott Alan Edelman, Theane E. Kapur, Gibson, Dunn & Crutcher LLP, Los Angeles, CA, for Defendants.

ORDER GRANTING DEFENDANTS’ SPECIAL MOTION TO STRIKE

[ECF No. 18]

Cynthia Bashant, United States District Judge

Plaintiff Herring Networks, Inc. filed a complaint for defamation against Rachel Maddow; Comcast Corporation; NBCUniversal Media, LLC; and MSNBC Cable LLC. (ECF No. 1.) The claim stems from a statement Rachel Maddow made on The Rachel Maddow Show on MSNBC. Soon after Plaintiff filed suit, Defendants filed a special motion to strike pursuant to California Code of Civil Procedure § 425.16, commonly known as the Anti-Strategic Lawsuits Against Public Participation ("Anti-SLAPP") law. ("Mot.," ECF No. 18.) The Court held oral argument on the Motion on May 19, 2020. For the reasons discussed below, the Court GRANTS Defendants’ Motion to Strike.

I. Background

Plaintiff Herring Networks, Inc. owns and operates One America News Network ("OAN"). ("Compl.," ECF No. 1, ¶ 1.) On July 22, 2019, reporter Kevin Poulsen at The Daily Beast published a story called "Trump's New Favorite Channel Employs Kremlin-Paid Journalist." Poulsen reported that Kristian Rouz, one of the reporters at OAN, was "on the payroll of the Kremlin's official propaganda outlet, Sputnik." ("RJN Ex. A," ECF No. 18-3 (hereinafter, "Daily Beast article").)¹ In short, Poulsen reported that Rouz has been reporting on U.S. politics for OAN since August 2017, and "[f]or all of that time, he's been simultaneously writing for Sputnik, a Kremlin-owned news wire that played a role in Russia's 2016 election-interference operation, according to an assessment by the U.S. intelligence community." (Id. ) Poulsen opined that "Kremlin propaganda sometimes sneaks into Rouz's segments on unrelated matters" and provided examples. (Id. ) Poulsen also quoted former FBI agent Clint Watts, who stated: "This completes the merger between Russian state-sponsored propaganda and American conservative media ... We used to think of it as ‘They just have the same views’ or ‘They use the same story leads.’ But now they have the same personnel." (Id. )

Later that day, Rachel Maddow discussed the Daily Beast article on her talk show, The Rachel Maddow Show , which airs on MSNBC. The segment was titled: "Staffer on Trump-favored network is on propaganda Kremlin payroll." The Rachel Maddow Show: Staffer on Trump-Favored Network Is on Propaganda Kremlin Payroll (MSNBC television broadcast July 22, 2019), available at https://www.msnbc.com/rachelmaddow/watch/staffer-on-trump-favored-network-is-on-propaganda-kremlin-payroll-64332869743). Maddow opened the segment by informing viewers about OAN, calling it a "boutique little news outlet that is designed specifically for Trump-mega fans." She pointed out that President Trump previously praised OAN's ratings on Twitter and gave OAN a press pass to the White House. Maddow then stated that she has the "most perfectly formed story of the day" and presented Kevin Poulsen's Daily Beast article. She stated the article reports that OAN, which is "Trump's favorite, more Trump-ier than Fox TV network[,] ... has a full-time on-air reporter who covers U.S. politics, who is also simultaneously on the payroll of the Kremlin." The reporter is being paid to produce "pro-Putin propaganda" for the Russian-funded network Sputnik. Maddow states, "there is a lot of news today, but among 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 ... we literally learned today that that outlet the President is promoting shares staff with the Kremlin. I mean, what?" She laughs and soon after says, "in this case, the most obsequiously pro-Trump right wing news outlet in America really literally is paid Russian propaganda. Their on-air U.S. politics reporter is paid by the Russian government to produce propaganda for that government." (emphasis added). The underlined portion of the sentence highlights where Plaintiff takes issue. Plaintiff sued for defamation. Soon afterwards, Defendants filed the present Motion.

II. Legal Standard

California's anti-SLAPP statute is intended to "provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights." Rusheen v. Cohen , 37 Cal. 4th 1048, 1055–56, 39 Cal.Rptr.3d 516, 128 P.3d 713 (2006). The anti-SLAPP law provides in relevant part:

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 United States Constitution or the California Constitution in connection 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 probability that the plaintiff will prevail on the claim.

Cal. Civ. Proc. Code § 425.16(b)(1).

Courts apply a two-step process to determine whether an action is subject to an anti-SLAPP special motion to strike.

Navellier v. Sletten , 29 Cal. 4th 82, 88, 124 Cal.Rptr.2d 530, 52 P.3d 703 (2002). First, the defendant must establish that "the challenged cause of action is one arising from protected activity." Id. Once the defendant makes a threshold showing that the act in question is protected, the burden shifts to the plaintiff, who must establish "a probability of prevailing on the claim." Id.

III. Analysis

A. Procedural Issues

"For purposes of the Federal Rules of Civil Procedure, a motion brought on anti-SLAPP grounds can either be analogous to a motion to dismiss or a motion for summary judgment." Clifford v. Trump , 339 F. Supp. 3d 915, 922 (C.D. Cal. 2018). Here, Defendants’ Motion is analogous to a motion to dismiss because Defendants move to strike based on legal arguments. (See Mot. at 7.) Defendants are not "providing alternate facts to challenge the allegations" in the complaint, so the motion is not analogous to a motion for summary judgment. See Clifford , 339 F. Supp. 3d at 922 (citing Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress , 890 F.3d 828, 834 (9th Cir.), amended , 897 F.3d 1224 (9th Cir. 2018).)

The issue then becomes what the Court may consider in evaluating the present Motion. For the second prong of the anti-SLAPP test under California law, to show a probability of prevailing on the merits of its claim, a plaintiff "must demonstrate the complaint is legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." Wilcox v. Superior Court , 27 Cal. App. 4th 809, 823, 33 Cal.Rptr.2d 446 (1994). "In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." Cal. Code Civ. Proc. § 425.16(b)(2). The Ninth Circuit has noted there are "conflicts between California's anti-SLAPP law's procedural provisions and the Federal Rules of Civil Procedure." Planned Parenthood , 890 F.3d at 833. And "if there is a contest between a state procedural rule and the federal rules, the federal rules of procedure will prevail." Id. at 834. Specifically, when a court considers a motion to strike "based on alleged deficiencies in the plaintiff's complaint, the motion must be treated in the same manner as a motion under Rule 12(b)(6)." Id.

Plaintiff attaches various declarations and exhibits to its opposition brief. (ECF Nos. 19-1 to 19-11.) Plaintiff also moves ex parte to supplement the record with a video of the December 9, 2019 episode of Hardball with Chris Matthews that aired on MSNBC. (ECF No. 21.) Because Defendants’ Motion is analogous to a motion to dismiss, "the motion must be treated in the same manner as a motion under Rule 12(b)(6)." Planned Parenthood , 890 F.3d at 834 (concluding that the district court correctly applied a Rule 12(b)(6) standard to the motion to strike "challenging the legal sufficiency of Plaintiff's complaint" and "did not err in declining to evaluate the factual sufficiency of the complaint at the pleadings stage").²

In evaluating a Rule 12(b)(6) motion, the Court considers the complaint as well as "material which is properly submitted as part of the complaint," which means the documents are either "physically attached to the complaint" or the "complaint necessarily relies" on them and their authenticity is not contested. Lee v. City of Los Angeles , 250 F.3d 668, 688 (9th Cir. 2001). "Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim." United States v. Ritchie , 342 F.3d 903, 908 (9th Cir. 2003).

The Court finds it appropriate to incorporate by reference the Daily Beast article as well as the relevant segment of The Rachel Maddow Show. (ECF Nos. 18-2, 18-3.) Both are referred to extensively in the complaint. The Court declines to consider the declarations and exhibits submitted by Plaintiff (ECF Nos. 19-1 to 19-11) and the Hardball video, as this information is not attached to the complaint, relied on by the complaint, or judicially noticeable. Accordingly, the Court DENIES Plaintiff's ex parte motion. (ECF No. 21.)

B. Protected Activity

Defendants have the burden to establish that Maddow's actions alleged in the complaint arise from protected activity.

Section 425.16, subdivision (e) sets forth four categories of protected activity. Subdivision (e)(4) defines protected activity to include "any ... conduct in furtherance of the exercise...