Herring Files Brief in Defamation Suit Appeal

Herring Networks has filed its opening brief in an appeal of a lower court decision throwing out its defamation suit against MSNBC's Rachel Maddow and the cable network's owners, Comcast/NBCU.

(Image credit: MSNBC)

The lower court dismissed the case before it came to trial, and with prejudice, meaning the case could not be re-filed, so Herring filed an appeal with the U.S. Court of Appeals for the Ninth Circuit.

At issue were statements made by MSNBC's Rachel Maddow that Herring's OAN network was paid Russian propaganda. Herring said that statement was false, that people could reasonably conclude it was not hyperbole even if that were not the intent, and that such a statement was harmful to an "American news agency" like OAN.

The statement stemmed from a report on MCNBC about an OAN employee who also wrote articles for Sputnik News, which is connected to the Russian government. Herring said because that employee was low level and that his Sputnik contributions were confined to freelance summaries of global financial news, the story "was hardly a story worthy of prime-time coverage on MSNBC’s most popular show" in the first place, and in any event Maddow went beyond the story to assert the network was Russian propaganda, then refused to retract that statement.

"Claims of payment from Russia to run pro-Russian content is disastrous to OAN’s brand," Herring said in its brief to the Ninth Circuit.

Herring said the lower court erred in four ways: 1) wrongly excluding Herring's evidence; 2) misapplied the law' 3) it wrongly concluded that if Maddow's statement was hyperbole it could not also be actionable defamation; and 4) Herring should have been allowed to amend its complaint before it was dismissed with prejudice.

"For all of these reasons, Herring respectfully asks this Court to reverse the dismissal of Herring’s defamation claim and remand for further proceedings," the brief said.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.