## Facts

- Herring Networks, Inc. owned One America News Network (OAN).
- Kristian Rouz worked for OAN and also wrote freelance articles for Sputnik News, a Russian state-financed outlet, for per-article compensation.
- A news article reported that OAN employed a journalist who simultaneously produced content for Sputnik and suggested that pro-Kremlin messaging appeared in his OAN segments.
- Rachel Maddow discussed the article on her political commentary program and stated that OAN “really literally is paid Russian propaganda,” while referencing the underlying report that Rouz was paid by Sputnik.
- Herring alleged the statement conveyed a false factual assertion that OAN itself was paid by the Russian government.
- Herring sued Maddow and related corporate entities for defamation in federal district court.
- Defendants filed a motion to strike under California’s anti-SLAPP statute, arguing the statement was nonactionable opinion protected by the First Amendment.
- The district court granted the anti-SLAPP motion and dismissed the complaint with prejudice; Herring appealed, including a challenge to the court’s refusal to consider extrinsic evidence offered in opposition to the motion.

## Issues

1. When an anti-SLAPP motion raises a purely legal challenge to the sufficiency of a complaint, may a federal district court consider evidence outside the pleadings submitted by the plaintiff?
2. In context, could a reasonable viewer understand the statement that OAN “really literally is paid Russian propaganda” as an assertion of objective fact actionable in defamation, rather than protected rhetorical hyperbole or opinion?

## Decision

- The Ninth Circuit affirmed the order granting the anti-SLAPP motion and the dismissal with prejudice.
- The court held the district court properly confined review to the pleadings because the motion presented a legal, Rule 12(b)(6)-type challenge rather than a factual dispute.
- The court held Maddow’s statement was nonactionable as a matter of law because, in context, it was an “obvious exaggeration” embedded in discussion of disclosed, undisputed facts and would not be understood by a reasonable viewer as stating objective fact.
- The court held dismissal without leave to amend was proper because Herring did not seek leave and amendment would be futile given the legal nature of the defect.

## Legal Principles

- California’s anti-SLAPP procedure may be applied in federal court only in a manner consistent with the Federal Rules of Civil Procedure.
- If an anti-SLAPP motion presents a legal attack on the complaint’s sufficiency, the court may limit its analysis to the pleadings (and materials properly considered on a motion to dismiss), rather than weighing extrinsic evidence.
- Defamation liability turns on whether a challenged statement would be understood by a reasonable audience, in full context, as asserting verifiable fact.
- Rhetorical hyperbole and evaluative conclusions drawn from disclosed, noncontroversial facts—especially in a setting known for political commentary—are protected by the First Amendment and are not actionable defamation.
- Dismissal with prejudice is appropriate where amendment cannot convert protected opinion/hyperbole into an actionable assertion of fact.

## Conclusion

The Ninth Circuit held that the challenged “paid Russian propaganda” remark, viewed in the context of a political commentary segment that disclosed the underlying facts, could not reasonably be taken as a literal factual claim about OAN and was therefore constitutionally protected; it also approved limiting review to the pleadings on a purely legal anti-SLAPP challenge and affirmed dismissal with prejudice as futile to amend.


Herring Networks, Inc. v. Maddow, 8 F.4th 1148 (9th Cir. 2021)