When the owners of San Diego-based One America News sued Rachel Maddow for defamation, they scoffed at the liberal TV host’s First Amendment rights. OAN lost, and was ordered to pay Maddow’s lawyers $247,000.
Now the shoe is on the other foot. Herring Networks, the OAN parent, will plead constitutional free-speech protections to stave off a $1.6 billion lawsuit by Dominion Voting Systems.
Another loss could spell bankruptcy.
Unlike the six words Maddow uttered in a single 3 1/2-minute MSNBC segment — that OAN “really literally is paid Russian propaganda” — the Trump-friendly conservative cable outlet has aired a mountain of falsehoods over nine months, Dominion alleges.
“OAN manufactured, endorsed, repeated and broadcast a series of verifiably false yet devastating lies about Dominion,” said its lawsuit filed Tuesday in District of Columbia federal court. “OAN helped create and cultivate an alternate reality where up is down, pigs have wings, and Dominion engaged in a colossal fraud to steal the presidency from Donald Trump by rigging the vote.”
In apparently his first public comments on the case, OAN founder and CEO Robert Herring Sr. suggested Friday that he’ll use truth as his libel defense.
“I figure when we put out the news, our news is always good,” the 79-year-old businessman told Times of San Diego in a brief phone interview. “So we don’t have to worry about it. Meet ’em in court.”
He declined to comment on specifics of the lawsuit, but when asked his reaction, he said: “It means I just have to work harder.”
Herring was pressed on whether he ignored at least 10 Dominion letters demanding retractions (and detailing extensively what to take back).
“I’m not talking about it,” he said. “We’ll go to court and we’ll have our day in court. OK, you [media] guys can sit there and turn it however you want. … All the [coverage] that we’ve ever had for our side of the story — it never came out right. So we really don’t have anything to say.”
In fact, OAN lawyer Bernard Rhodes responded to retraction demands on May 23, citing a Hustler magazine case in a letter to Dominion lawyer Stephen Shackelford Jr.
“The central thesis of your letter is that OAN engaged in reporting which you describe as ‘shameful, utterly self-serving and unethical,’” Rhodes wrote. “While I disagree with your characterization of OAN’s reporting, that disagreement is irrelevant in the face of one simple point of law: The First Amendment protects offensive and ‘shameful’ journalism.”
Kansas City-based Rhodes continued: “As Chief Justice Rehnquist explained in the Hustler case, the more offensive speech is, the more it should be protected.”
But the previous December, in their own demand letter, two other Dominion lawyers noted how OAN itself in the Maddow case “made it very clear that it believes that libel suits play an important role in holding the media accountable — and that when a member of the media commits ‘false and malicious libel,’ they should ‘answer for it in a court of law.’”
The high-powered legal pair, Thomas. A. Clare and Megan L. Meier, added: “We could not agree more.”
Media law experts say OAN is skating on thin ice.
Several contacted for this story agreed that Dominion has a good shot at proving OAN showed actual malice — or reckless disregard for the truth — by airing “Dominion-izing the vote” specials featuring Mike “My Pillow” Lindell and other debunked conspiracy theorists.
Proving actual malice is the linchpin of a successful libel suit for public figures — as Dominion has already deemed itself in court filings.
Clay Calvert, Brechner Eminent Scholar in Mass Communication at the University of Florida, judges Dominion has “overwhelming evidence” that some of OAN’s statements were false. “It’s hard to show that they didn’t act with reckless disregard for the truth.”
A recent ruling by U.S. District Judge Carl Nichols in a related matter — refusing to dismiss a lawsuit against Lindell, Rudy Giuliani and others — helps to bolster Dominion’s case, he said. (And Thursday, Nichols was assigned to hear the OAN matter.)
Journalism professor Dean Nelson at Point Loma Nazarene University was among several experts who said OAN and fellow defendants (correspondents Chanel Rion and Christina Bobb) shouldn’t count on reporter groups coming to their aid via amicus briefs.
“They said things that appear to be false without providing evidence to back their claims,” Nelson said. “I usually side with journalists in these kinds of issues, no matter how sloppy their journalism might be. But in this case, it seems that no actual journalism occurred here — just crazy claims to get more viewers so that the owners can get more advertisers and make more money. This was capitalism at work, not journalism.”
Michael W. McConnell, Richard & Frances Mallery Professor at Stanford Law School, said if the allegations are true, Dominion makes a good case that some of OAN’s statements were either knowingly false or at least reckless.
Dominion, he said, also has a strong case for its claim that professional reputation and future business prospects have wrongly taken a hit.
(The Denver-based company says it has lost at least $600 million in profits and $1 billion in “enterprise value,” not to mention having spent more than $600,000 on private security for employees and $700,000 “in an attempt to mitigate the harm to its business.”)
“Redress of injuries of that sort is a major purpose of libel law,” McConnell says.
In his May letter to a Dominion lawyer, OAN’s Rhodes also said the network is fully protected under the First Amendment to broadcast Lindell’s opinions, “just as OAN (and the media outlet of your choice) will be protected under the First Amendment to broadcast Dominion’s rebuttal of Mr. Lindell’s opinions.”
Rhodes added: “It should not be forgotten that such rhetorical hyperbole—in which Mr. Lindell is wont to engage — is constitutionally protected,” recalling a late 1980s Colorado libel case in which the court held that the defendant was constitutionally entitled to refer to the plaintiff as having “slimed up from the bayou.”
In May 2020, two major media trade groups sided with Fox News efforts to quash a lawsuit in Washington state. The Reporters Committee for Freedom of the Press and the Internet & Television Association called on a King County judge to dismiss WASHLITE’s suit alleging harm from Fox coverage of COVID-19. Weeks later, the case was thrown out on First Amendment grounds.
Part of the trade groups’ calculation was that Fox needed protection to avoid a “chilling effect” on other media outlets.
Our experts weren’t so worried.
Joseph A. Tomain of the Maurer School of Law at Indiana University said: “Assuming the actual malice standard applies and Dominion prevails, it is unlikely that a chilling effect will occur on journalism as a result of this case.”
He said the actual malice standard — that the plaintiff must prove a statement was made with knowledge of its falsity or with reckless disregard as to its truth or falsity — is a high burden.
“Winning a defamation case when the actual malice standard applies is not easy,” Tomain said. “Thus, the risk of a chilling effect on journalism when the actual malice standard applies in this case or any other case is minimal because it only prohibits knowingly false statements and statements made with reckless disregard for their truth or falsity.”
Point Loma Nazarene’s Nelson noted a different impact.
“It would have (and should have) a chilling effect on letting ideology blind a news organization from actually doing good journalism,” he said. “I have no problem with holding news organizations accountable for telling lies that damage people and companies.”
The University of Florida’s Calvert, who also heads the Marion B. Brechner First Amendment Project, doubted most media defense attorneys would come to OAN’s aid.
“It doesn’t fit into your normal defense of investigative journalism in the name of helping a democratic society out to the extent that most of the allegations have been debunked,” he said in a phone interview. “That’s why I think it’s going to be problematic.”
Calvert noted how the suit documents OAN figures helping fund the Cyber Ninjas audit of votes in Maricopa County, Arizona.
“It’s not that they’re playing a role of a neutral detached investigative journalist providing truthful, credible information to the public,” he said. “They are taking on a much more partisan stance. And that’s typically not the role that most journalists would play.”
Calvert says the OAN-Dominion case is the kind that would end in a settlement — “or else it has a chance of probably putting OAN out of business.”
If everything Dominion says turns out to be true, then it’s a fairly open and shut case, he said.
“I think they’ll make the defense Sidney Powell tried to make in hers unsuccessfully that much of what they said was opinion,” Calvert said. “They’ll probably try to make some kind of defense that this was a matter of public concern — the election. It’s political speech … (which) is the heart of the First Amendment.”
Likewise, Tomain said he’d be surprised if the court granted an OAN motion to throw the case out.
“That said, there are other ways the case could end before a trial, such as a Motion for Summary Judgment, which occurs after more factual discovery has happened,” he said. “It’s worth noting that both plaintiffs and defendants can file a Motion for Summary Judgment.”
Calvert expects the OAN case to go past the motion-to-dismiss stage.
“The discovery process would be fascinating because then you would be able to take the depositions of some of these people — and find out what they really believed,” he said.
But he raised another question: Would Dominion even be in a mood to settle?
“(They may say): ‘Let’s go for it. We’ll take you on. We’ll get that money and drive you out of business,’” Calvert suggested.
Could U.S. journalism be harmed if OAN loses?
Calvert doubts much collateral damage to mainstream journalism “because I think most mainstream news organizations do not engage in partisanship in terms of their news content. Maybe on the editorial page, yes, where they’re allowed to do it. But I just don’t see this having much damage.”
Might an OAN loss (and possible impact on a sister Dominion suit against Newsmax) be good for the media landscape?
“Absolutely,” he said. “The benefit here is … holding the news media accountable for their reporting. … That in turn might restore trust or at least force media outlets to perform more rigorous investigations into the credibility of the sources who are making the allegations.”
He saw two benefits from a successful libel action.
“While the micro level purpose of a libel suit is to recover from reputational harm, the macro level benefit here could be policing the realm of investigative journalism and political reporting and maybe restore credibility to the press,” Calvert said.
Law school lecturer Tomain said he encouraged Americans to use the Dominion cases as opportunities to reflect on the value of the actual malice standard “because it helps provide strong protection for freedom of expression.”
“While actual malice is not an impossible burden for a plaintiff to prove, it is a high one,” he said. “As to whether Dominion will satisfy that standard in these cases, stay tuned. The litigation is at a very early stage.”
Professor Nelson said the public should pay attention to this case because “a lot of people think that we in the news media can just do and say whatever we want, and then we hide our bad behavior behind the First Amendment.”
But media outlets can still be held held accountable, he said.
“So this might be an encouragement to those who think we have no restrictions,” Nelson said. “I think it’s also important to remember that it isn’t just journalists who are protected by the First Amendment. All Americans are protected by it — including corporations like Dominion.”