Herring Networks , Inc . v. Rachel Maddow ; Comcast Corporation ; Nbcuniversal Media, LLC; Msnbc Cable, LLC

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERRING NETWORKS , INC .,
Plaintiff-Appellant,
v.
R ACHEL M ADDOW ; C OMCAST
C ORPORATION ; NBCUNIVERSAL
M EDIA, LLC; MSNBC CABLE, LLC,
Defendants-Appellees.
No. 20-55579
D.C. No.
3:19-cv-01713-
BAS-AHG
OPINION
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Argued and Submitted July 27, 2021
Pasadena, California
Filed August 17, 2021
Before: MILAN D. SMITH, JR. and JOHN B. OWENS,
Circuit Judges, and EDUARDO C. ROBRENO,*
District Judge.
Opinion by Judge Milan D. Smith, Jr.
* The Honorable Eduardo C. Robreno, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.

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SUMMARY**
Defamation / Anti-SLAAP Motion
The panel affirmed the district court’s judgment granting
Appellees’ motion to strike Herring Network, Inc.’s
defamation complaint pursuant to California’s anti-SLAPP
statute, and dismissing Herring Networks, Inc.’s defamation
suit with prejudice.
Herring launched One American News Network (OAN)
in 2013. Rachel Maddow, host of a show on MSNBC, ran a
segment stating that OAN employee Kristen Rouz worked
for OAN, but was “also being paid by the Russian
government to produce government-funded pro-Putin
propaganda for a Russian government funded propaganda
outfit called Sputnik.” Herring sued Maddow and related
entities for defamation. Maddow filed a motion to strike the
complaint pursuant to California’s anti-SLAPP statute,
which the district court granted.
The panel first addressed Herring’s argument that the
district court should have considered five pieces of proffered
evidence outside of the pleadings in determining whether to
grant Maddow’s motion to strike. Because the motion to
strike mounted a legal challenge, not a factual challenge, to
Herring’s complaint, the panel held that Herring’s reliance
on evidence outside of its complaint in defending against the
anti-SLAPP motion was improper and inconsistent with the
Federal Rules of Civil Procedure.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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HERRING NETWORKS V . M ADDOW 3
Turning to the merits, the panel held that Maddow’s
statement was well within the bounds of what qualified as
protected speech under the First Amendment. The
challenged statement was an obvious exaggeration,
cushioned within an undisputed news story. The statement
could not reasonably be understood to imply an assertion of
objective fact, and therefore, did not amount to defamation.
Finally, the panel held that the district court did not abuse
its discretion in dismissing the complaint without leave to
amend because Herring never asked to amend, and if it had,
amendment would have been futile.
COUNSEL
Amnon Z. Siegel (argued), Colin H. Rolfs, and Justin P.
McCarthy, Miller Barondess LLP, Los Angeles, California,
for Plaintiff-Appellant.
Theodore J. Boutrous Jr. (argued), Scott A. Edelman,
Theane Evangelis, Nathaniel L. Bach, and Marissa B.
Moshell, Gibson Dunn & Crutcher LLP, Los Angeles,
California, for Defendants-Appellees.

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OPINION
M. SMITH, Circuit Judge:
Appellant Herring Networks, Inc. (Herring) appeals the
judgment of the district court granting Appellees’ anti-
SLAPP motion and dismissing Herring’s defamation suit
with prejudice. We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we affirm. We conclude that the challenged
statement was an obvious exaggeration, cushioned within an
undisputed news story. The statement could not reasonably
be understood to imply an assertion of objective fact, and
therefore, does not amount to defamation.
FACTUAL AND PROCEDURAL BACKGROUND
A.
Herring launched One American News Network (OAN)
in 2013. As noted in the complaint, “OAN features news
programming, political talk shows, and special
documentary-style reports” and is a “leading conservative
voice in American news.” OAN is wholly owned by the
Herring family, and has its principal place of business in San
Diego, California.
Kristian Rouz is an employee of OAN. According to
Herring, “Rouz collects and analyzes articles from other
sources and writes articles based on those sources for OAN.”
While employed by OAN, Rouz also wrote articles as a
freelancer for Sputnik News, a Russian state-financed news
organization. According to Herring, “Rouz chose the topics
and viewpoints of the articles he wrote for Sputnik News”
and earned approximately forty dollars per article. Herring
alleges that Rouz’s work for Sputnik News “had no relation

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HERRING NETWORKS V . M ADDOW 5
to his work for OAN,” despite Rouz working for the
organizations at the same time.
On July 22, 2019, The Daily Beast published an article
entitled “Trump’s New Favorite Channel Employs Kremlin-
Paid Journalist.” The article, written by Senior National
Security Correspondent Kevin Poulsen, read: “If the stories
broadcast by the Trump-endorsed One America News
Network sometimes look like outtakes from a Kremlin
trolling operation, there may be a reason. One of the on-air
reporters at the 24-hour network is a Russian national on the
payroll of the Kremlin’s official propaganda outlet,
Sputnik.” The article asserted that Rouz was reporting for
OAN while “simultaneously writing for Sputnik” and that
“Kremlin propaganda sometimes sneaks into Rouz’s
segments on unrelated matters, dropped in as offhand
background information.” The article provided two
examples. In a “segment on the Syrian rescue workers,”
Rouz referred to their “‘involvement in military activities,
executions, and numerous war atrocities,’ but [did not]
disclose that those ‘allegations’ were hoaxes that originated
with Vladimir Putin and his proxies.” And in a different
report, “Rouz cast Clinton’s criticism of Brexit as an
extension of her ‘grievous insults and fake narratives against
Russia’—an assertion that makes sense only in the context
of Rouz’s multiple reports claiming Russia was framed for
hacking Democrats.” The article also quoted a former
Federal Bureau of Investigation (FBI) agent, 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.”

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On the same day the article was published, Rachel
Maddow, host of The Rachel Maddow Show on MSNBC, ran
a segment entitled “Staffer on Trump-Favored Network Is
on Propaganda Kremlin Payroll.” The entire segment ran
three and a half minutes, and throughout most of the piece, a
snapshot of The Daily Beast article remained on a screen
behind Maddow. Maddow introduced the story with the
following:
[P]erhaps the single most perfectly formed
story of the day, the single most like sparkly
story of the entire day is this scoop from
reporter Kevin Poulsen at “The Daily Beast”
who has sussed out that Trump’s favorite
more Trumpier than Fox TV network, the one
that the president has been promoting and
telling everyone they should watch and is
better than Fox, turns out that network has a
full time on air reporter who covers U.S.
politics who is simultaneously on the payroll
of the Kremlin. What?
Maddow then repeated that “at the same time [Rouz] 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.”
Maddow explained that Sputnik played a role in the Russian
government’s interference in the 2016 presidential election
and had formally registered as a foreign power with the
United States Department of Justice. She then provided
further commentary on the article:
[A]mong the giblets the news gods dropped
off their plates for us to eat off the floor today

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is the actual news that this super right wing
news outlet that the president has repeatedly
endorsed as a preferable alternative to Fox
News . . . . We literally learned today that
that outlet the president is promoting shares
staff with the Kremlin.
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 [sic] on air
U.S. politics reporter is paid by the Russian
government to produce propaganda for that
government.
Maddow ended the segment noting that she expected OAN
would not fire Rouz and President Trump would continue
promoting the network.
B.
On September 9, 2019, Herring sued Appellees Rachel
Maddow, Comcast Corporation, NBCUniversal Media,
LLC, and MSNBC Cable, LLC (collectively, Maddow or
Appellees) for defamation. Herring did not sue The Daily
Beast or Kevin Poulsen over the article. Instead, the crux of
Herring’s case concerned the following comment that
Maddow included in her July 22nd segment: OAN “really
literally is paid Russian propaganda.” Herring alleged that
“Maddow’s statement is utterly and completely false”
because “OAN has never been paid or received a penny from
Russia or the Russian government.”

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Maddow then moved to strike the complaint pursuant to
California’s anti-SLAPP law, California Code of Civil
Procedure § 425.16. Maddow’s motion was styled as a
Federal Rule of Civil Procedure 12(b)(6) motion, asserting a
facial attack on Herring’s complaint. Maddow argued that
the challenged speech “is fully protected by California law
and the First Amendment because it is an opinion based on
fully disclosed facts, is not susceptible of the meaning
[Herring] ascribes to it, and—even if it could be considered
factual—is substantially true.” According to Maddow,
because her comment concerned a public issue and Herring
could not establish a likelihood of prevailing on its
defamation claim, the district court was entitled to strike the
complaint pursuant to California’s anti-SLAPP statute.
In opposition to Maddow’s motion, Herring filed an ex
parte application to supplement the record. Herring argued
that “new evidence ha[d] come to light” that demonstrated
Maddow’s contested speech was not constitutionally
protected. The new evidence was a segment on Chris
Matthews’s show Hardball, also on MSNBC, where
Matthews claimed OAN was “Russian owned” and then,
immediately after a commercial break, retracted the
statement. In Matthews’s retraction, he noted that OAN is
“owned by an American.” Relying on this new evidence,
Herring argued that Maddow’s own colleague “understood
her claim literally and reiterated it on his show.” Therefore,
claimed Herring, Maddow could not show that no reasonable
person could construe her speech as provably false.
The district court granted the motion to strike, agreeing
with Maddow that her “statement is an opinion that cannot
serve as the basis for a defamation claim” and that Herring
failed to show “a probability of succeeding on its defamation
claims.” Herring Networks, Inc. v. Maddow, 445 F. Supp.

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HERRING NETWORKS V . M ADDOW 9
3d 1042, 1054 (S.D. Cal. 2020). In doing so, the district
court declined to consider the declarations and exhibits
submitted by Herring and denied Herring’s ex parte
application to supplement the record. Id. at 1047–48. The
district court reasoned that “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 [Federal Rule of Civil Procedure] 12(b)(6).’”
Id. at 1047 (quoting Planned Parenthood Fed’n of Am., Inc.
v. Ctr. for Med. Progress, 890 F.3d 828, 834 (9th Cir.
2018)). The district court considered only the complaint,
The Daily Beast article, and the relevant segment of The
Rachel Maddow Show—the latter two being “referred to
extensively in the complaint.” Id. at 1048.
Herring timely appealed. First, Herring argues that the
district court erred in excluding its evidence. Herring
contends that the district court’s reliance on Planned
Parenthood “was misplaced and took a line from the
decision out of context, ignoring the broader Erie [Railroad
Company v Tompkins, 304 U.S. 64 (1938)] analysis
governing application of [California’s] anti-SLAPP statute
in federal courts.” According to Herring, Planned
Parenthood “only resolved whether a plaintiff was required
to submit evidence” in its opposition to an anti-SLAPP
motion that challenges the legal sufficiency of a complaint,
not whether a plaintiff was “prohibited from submitting
evidence in opposition to an anti-SLAPP motion.”
Moreover, Herring argues, “[w]here a plaintiff submits
evidence, as here, it does not conflict with [the Federal Rules
of Civil Procedure] for a court to consider that evidence.”
Herring then asserted that if such an evidentiary submission
did conflict with Rule 12(b)(6), the resulting conflict is “a
reason to rethink [our court’s] precedent like Planned

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Parenthood and find that the anti-SLAPP statute should not
apply in federal court.”
Second, Herring argues that the district court erred in
concluding that no reasonable viewer could have understood
Maddow’s statement as fact. Herring contends that the
statement is susceptible of being proved true or false; that
the inclusion of “really literally” demonstrates the statement
was not opinion; that Maddow’s use of The Daily Beast
article made the statement appear as fact; and that the broad
context of the statement indicated that the statement was not
opinion. Moreover, Herring avers that even if Maddow’s
statement was hyperbole, she “falsely implied an actual
connection between OAN’s news content and Russia.”
In response, Maddow argues that the district court
correctly rejected Herring’s proffered evidence because
“anti-SLAPP motions brought as facial challenges pursuant
to Rule 12(b)(6) are decided in the same manner as a typical
motion to dismiss—on the pleadings.” Maddow further
argues that the district court correctly granted the motion to
strike because, pursuant to our precedent, the statement was
an “opinion made on fully disclosed facts” and therefore,
constituted constitutionally protected speech. Finally,
Maddow contends that even if the court considers the
statement factual, “it is nonactionable because it is
substantially true.”
STANDARD OF REVIEW
We review an order granting a special motion to strike
under California’s anti-SLAPP statute de novo. Maloney v.
T3Media, Inc., 853 F.3d 1004, 1009 (9th Cir. 2017). We
review a district court’s dismissal with prejudice and denial
of leave to amend for abuse of discretion. Eminence Cap.,
LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

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HERRING NETWORKS V . M ADDOW 11
ANALYSIS
A.
California’s anti-SLAPP statute allows a defendant to
file a “special motion to strike” a plaintiff’s complaint, and
involves a two-step inquiry. Cal. Civ. Proc. Code
§ 425.16(b)(1). “To prevail on an anti-SLAPP motion, the
moving defendant must make a prima facie showing that the
plaintiff’s suit arises from an act in furtherance of the
defendant’s constitutional right to free speech.” Makaeff v.
Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013). If the
defendant satisfies this requirement, “[t]he burden then shifts
to the plaintiff . . . to establish a reasonable probability that
it will prevail on its claim in order for that claim to survive
dismissal.” Id. The district court must grant the defendant’s
motion and dismiss the complaint if the “plaintiff presents
an insufficient legal basis for the claims” or “‘no reasonable
jury’ could find for the plaintiff.” Metabolife Int’l, Inc. v.
Wornick, 264 F.3d 832, 840 (9th Cir. 2001) (citation
omitted). The purpose of the anti-SLAPP statute is “to allow
for early dismissal of meritless [F]irst [A]mendment cases
aimed at chilling expression through costly, time-consuming
litigation.” Maloney, 853 F.3d at 1009 (citation omitted).
To achieve this purpose, courts are directed to “construe[]”
the anti-SLAPP statute “broadly.” Cal. Civ. Proc. Code
§ 425.16(a).
B.
Before determining whether the district court properly
granted Maddow’s anti-SLAPP motion, we must first
address Herring’s argument that the district court should
have considered five pieces of proffered evidence outside of
the pleadings then before the court in determining whether
to grant Maddow’s motion to strike. This evidence includes:

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(1) transcripts from some of Maddow’s other shows; (2) an
article in The New York Times Magazine about Maddow and
her show; (3) an anonymous online comment submitted to
OAN; (4) a linguistic expert’s report; and (5) a statement
made by Chris Matthews on an episode of HardBall.
Herring avers that the district court’s consideration of such
evidence—pursuant to the California anti-SLAPP statute—
would not have conflicted with the Federal Rules of Civil
Procedure.
“The degree to which [California’s] anti-SLAPP
provisions are consistent with the Federal Rules of Civil
Procedure has been hotly disputed.” Planned Parenthood,
890 F.3d at 833. Although portions of the California anti-
SLAPP statute are inapplicable in federal court, see
Metabolife, 264 F.3d at 845–46, we have held that “there is
no direct collision” between the special motion to strike
subsection of the statute and the Federal Rules, see United
States ex rel. Newsham v. Lockheed Missiles & Space Co.,
190 F.3d 963, 972 (9th Cir. 1999) (internal quotation marks
omitted). To avoid such a collision, “we [ ] review anti-
SLAPP motions to strike under different standards
depending on the motion’s basis.” Planned Parenthood,
890 F.3d at 833. A defendant may move to strike “on purely
legal arguments,” in which case we analyze the motion
pursuant to Rules 8 and 12. Id. (citation omitted); see also
Rogers v. Home Shopping Network, Inc., 57 F. Supp. 2d 973,
982 (C.D. Cal. 1999) (“[T]he Court refers to a motion that
only identifies legal defects on the face of the pleading,
analogous to a Rule 12(b)(6) motion to dismiss.”). Or a
defendant may assert “a factual challenge,” which invokes
the same treatment as “a motion for summary judgment,”
triggering discovery. Planned Parenthood, 890 F.3d at 833
(citation omitted). This “interpretation eliminates conflicts

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HERRING NETWORKS V . M ADDOW 13
between California’s anti-SLAPP law’s procedural
provisions and the Federal Rules of Civil Procedure.” Id.
The parties do not dispute that Maddow’s motion to
strike mounted a legal challenge to Herring’s complaint, not
a factual challenge. Quoting Planned Parenthood, 890 F.3d
at 834, even Herring’s briefing before the district court
concedes that Maddow’s motion “must be treated in the
same manner as a motion under Rule 12(b)(6).” The issue
is whether Herring is permitted to submit evidence in
defending against Maddow’s motion. Or, more precisely,
whether the district court’s consideration of evidence in
determining whether to grant a motion to strike would
conflict with Rule 12(b)(6).
In Planned Parenthood, we held that the defendant’s
anti-SLAPP motion challenged the legal deficiencies of the
plaintiff’s pleadings, not the factual sufficiency of the
claims. 890 F.3d at 834–35. Given that the proper analysis
of the motion to strike was a Rule 12(b)(6) analysis, we
rejected the defendant’s argument that the plaintiffs failed to
meet “their burden of presenting evidence showing that their
claims have minimal merit.” Id. at 834. We held that “if the
defendants have urged only insufficiency of [the]
pleadings,” then “there’s no requirement for a plaintiff to
submit evidence to oppose contrary evidence that was never
presented by defendants.” Id. (emphasis added).
The facts of Planned Parenthood are not identical to the
facts of this case, but the applicable reasoning in Planned
Parenthood squarely forecloses Herring’s argument.
“Echoing the point” we made in prior cases, Planned
Parenthood reiterated the division of anti-SLAPP motions to
strike into two categories: motions that challenge the legal
sufficiency of complaints and motions that challenge the
factual sufficiency of complaints. Id. The former of these

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categories are analyzed pursuant to Rule 12; the latter are
analyzed pursuant to Rule 56. Id. Just like the defendant in
Planned Parenthood, Herring is attempting to blur these two
categories by implanting the procedural requirements of
Rule 56 into a Rule 12(b)(6) analysis. Herring, however,
cannot convert Maddow’s motion to strike into a motion for
summary judgment. See Ranch Realty, Inc. v. DC Ranch
Realty, LLC, 614 F. Supp. 2d 983, 987–88 (D. Ariz. 2007).
The defendant determines which motions she files, not the
plaintiff. Given that the parties do not dispute that
Maddow’s motion challenged the legal sufficiency of
Herring’s complaint, we conclude that Herring’s reliance on
evidence outside of its complaint in defending against the
motion was improper and inconsistent with the Federal
Rules.1
C.
We now turn to the merits of the district court’s order
granting Maddow’s anti-SLAPP motion. It is undisputed
that Maddow’s challenged speech was an act in furtherance
of her right to free speech. Therefore, the first step of the
anti-SLAPP analysis is satisfied. The only remaining
question is whether the district court erred in holding that
Herring failed to demonstrate a reasonable probability of
1 Moreover, Herring’s argument is contrary to the California
legislature’s reasons for enacting the anti-SLAPP statute. If we
permitted plaintiffs to present evidence in defense of all anti-SLAPP
motions, then every anti-SLAPP motion would necessarily become a
motion for summary judgment. This would effectively negate the
purpose of anti-SLAPP motions, which is to remedy the problem of
SLAPP suits through “the prompt exposure, dismissal, and
discouragement of [further] suits.” Newsham, 190 F.3d at 971.

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HERRING NETWORKS V . M ADDOW 15
prevailing on its defamation claim. See Maloney, 853 F.3d
at 1009–10.
Pursuant to California law, defamation “involves the
intentional publication of a statement of fact which is false,
unprivileged, and has a natural tendency to injure or which
causes special damage.” Gilbert v. Sykes, 53 Cal. Rptr. 3d
752, 764 (Ct. App. 2007) (quoting Ringler Assocs. Inc. v.
Md. Cas. Co., 96 Cal. Rptr. 2d 136, 148 (Ct. App. 2000)).
Because the challenged speech must be a statement of fact,
the threshold question in every defamation suit is “whether
a reasonable factfinder could conclude that the [contested]
statement implies an assertion of objective fact.” Unelko
Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir. 1990)
(alterations and internal quotation marks omitted). “If the
answer is no, the claim is foreclosed by the First
Amendment.” Gardner v. Martino, 563 F.3d 981, 987 (9th
Cir. 2009). We apply a three-factor test in resolving this
question: “(1) whether the general tenor of the entire work
negates the impression that the defendant was asserting an
objective fact, (2) whether the defendant used figurative or
hyperbolic language that negates that impression, and
(3) whether the statement in question is susceptible of being
proved true or false.” Partington v. Bugliosi, 56 F.3d 1147,
1153 (9th Cir. 1995). When applied here, this “totality of
the circumstances” test demonstrates that the district court
properly held that Herring could not meet its burden because
“a reasonable factfinder could only conclude that the
statement was one of opinion not fact.” Herring Networks,
445 F. Supp. 3d at 1054; see also Knievel v. ESPN, 393 F.3d
1068, 1074–75 (9th Cir. 2005).
1.
“[T]he context of a statement may control whether words
were understood in a defamatory sense.” Koch v. Goldway,

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16 HERRING NETWORKS V . M ADDOW
817 F.2d 507, 509 (9th Cir. 1987). The broad context
“includes ‘the general tenor of the entire work, the subject of
the statements, the setting, and the format of the work.’”
Knievel, 393 F.3d at 1077 (quoting Underwager v. Channel
9 Austl., 69 F.3d 361, 366 (9th Cir. 1995)). “[W]hen the
surrounding circumstances of a statement are those of a
heated political debate, where certain remarks are
necessarily understood as ridicule or vituperation, . . . the
statement cannot reasonably be taken as anything but
opinion.” Koch, 817 F.2d at 509.
We agree with the district court’s conclusion that the
broad context of Maddow’s show makes it more likely that
her audiences will “expect her to use subjective language
that comports with her political opinions.” Herring
Networks, 445 F. Supp. 3d at 1050. It seems Herring agrees
with this conclusion as well: Herring’s complaint
characterizes Maddow as “a liberal television host,” and
MSNBC’s cable programming as “liberal politics.”
Although MSNBC produces news, Maddow’s show in
particular is more than just stating the news—Maddow “is
invited and encouraged to share her opinions with her
viewers.” Id. at 1049. In turn, Maddow’s audience
anticipates her effort “to persuade others to [her] position[]
by use of epithets, fiery rhetoric or hyperbole.” Info. Control
Corp. v. Genesis One Comput. Corp., 611 F.2d 781, 784 (9th
Cir. 1980) (citation omitted). Therefore, the medium
through which the contested statement was made supports
Maddow’s argument that a reasonable viewer would not
conclude the statement implies an assertion of fact.
Focusing one level closer, the tenor of the segment in
which Maddow made the contested statement also supports
the conclusion that a reasonable viewer would have
understood that Maddow was expressing her opinion. As the

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HERRING NETWORKS V . M ADDOW 17
district court found, “Maddow’s tone could be described as
surprise and glee at the unexpectedness of the story.”
Herring Networks, 445 F. Supp. 3d at 1050. For example,
Maddow opens the segment by calling The Daily Beast
article “perhaps the single most perfectly formed story of the
day, the single most like sparkly story of the entire day.” She
identifies the news as one of “the giblets the news gods
dropped off their plates for us to eat off the floor today.”
After sharing a screenshot of the article and summarizing the
news, Maddow laughs and asks her audience, “I mean,
what?” Maddow concludes the piece, while shaking her
head, “I mean, this is the kind of news we are supposed to
take in stride these days. And we do our best.” Maddow’s
gleeful astonishment with The Daily Beast’s breaking news
is apparent throughout the entire segment. Thus, at no point
would a reasonable viewer understand Maddow to be
breaking new news. The story of a Kremlin staffer on
OAN’s payroll is the only objective fact Maddow shares.
On appeal, Herring primarily relies on Unelko to argue
that the broad context of the contested statement
demonstrates that reasonable viewers would take the
statement as factual. Its reliance is misplaced. In Unelko,
the plaintiffs sued Andy Rooney, arguing that his assertion
on 60 Minutes that the plaintiffs’ product “didn’t work” was
a defamatory statement of fact. 912 F.2d at 1050. The
segment in which the statement was made involved Rooney
describing the “‘junk’ [that] he had received in the mail,”
including “caps, and a lot of cups,” an expensive watch,
pictures of himself, an orange peeler, and “an ashtray in the
shape of a human lung.” Id. at 1051. Among the “junk” was
the plaintiffs’ product: “something for the windshield of
your car called Rain-X.” Id. In describing the product,
Rooney notes that he “actually spent an hour one Saturday
putting it on the windshield of [his] car.” Id. Rooney

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presumes that “[t]he fellow who makes this . . . [would] like
a commercial or a testimonial . . . [but i]t didn’t work.” Id.
We ultimately reversed the district court’s grant of Rooney’s
motion for summary judgment. Id. at 1052. Although the
tenor of the segment was “humorous and satirical,” we found
that “[t]he humor in Rooney’s statement” was derived “from
the fact that his report of the product’s effectiveness was the
antithesis of what its inventor presumably desired.” Id. at
1054. The statement, therefore, “receive[d] no protection
based on the overall tenor of [the] segment.” Id.
The facts in this case are much different. Maddow’s
astonishment and the segment’s tone of “surprise and glee”
were derived from the news presented in The Daily Beast
article—a story that Herring does not allege is defamatory.
Herring Networks, 445 F. Supp. 3d at 1050. In Unelko, the
segment is funny only if Rooney’s statement is an assertion
of fact, 912 F.2d at 1054, whereas here, Maddow’s segment
maintains a gleeful tenor not because of Maddow’s single
line that OAN is “paid Russian propaganda,” but because of
The Daily Beast’s breaking news. Given the broad contexts
of the two statements, a reasonable viewer would understand
Maddow’s statement as colorful commentary and Rooney’s
statement as a factual assertion of Rain-X’s effectiveness.
See id.; see also Partington, 56 F.3d at 1154.
The general context of Maddow’s statement, therefore,
“negates the impression that [she] impl[ied] a false assertion
of fact.” Partington, 56 F.3d at 1154. Maddow “fairly
describe[d] the general events involved” in The Daily Beast
article and “offer[ed her] personal perspective about some of
its ambiguities.” Id. A reasonable viewer would be able to
differentiate between Maddow’s commentary and the actual
news she is reporting.

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HERRING NETWORKS V . M ADDOW 19
2.
Next, we must “examine the ‘specific context and
content of the statements, analyzing the extent of figurative
or hyperbolic language used and the reasonable expectations
of the audience in that particular situation.’” Knievel,
393 F.3d at 1077 (quoting Underwager, 69 F.3d at 366).
Although Herring’s complaint and appellate briefs
suggest that we should consider only the challenged six-
word phrase, our precedent requires us to expand our focus
to the surrounding sentences. See id. at 1074 (“Although the
word ‘pimp’ may be reasonably capable of a defamatory
meaning when read in isolation, . . . the term loses its
meaning when considered in the context” of the publication
(internal quotation marks omitted)). Accordingly, it may be
helpful to reiterate the portion of Maddow’s segment at
issue. Maddow’s dialogue includes a summary of The Daily
Beast article, an exasperated and staged conversation about
OAN’s reporting resembling “Russian propaganda,” the
contested statement that “[OAN] really literally is paid
Russian propaganda,” and then a repetition of the story that
an “on air U.S. politics reporter is paid by the Russian
government to produce propaganda for that government.”
Because Maddow discloses all relevant facts and employs
colorful, hyperbolic language, we conclude that the specific
context of the statement does not render it an assertion of
fact.
Statements are less likely to be expressions of fact
where—as here—the speaker fully discloses all relevant
facts. Our decision in Standing Committee on Discipline of
the United States District Court for the Central District of
California v. Yagman is instructive. See 55 F.3d 1430 (9th
Cir. 1995). In that case, an attorney raised First Amendment
objections to being disciplined for, among other things,

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conveying his belief that a particular judge was anti-Semitic.
Id. at 1435, 1438. In determining whether the contested
statement “could reasonably be understood as declaring or
implying actual facts,” we noted that there are “two kinds of
opinion statements: those based on assumed or expressly
stated facts, and those based on implied, undisclosed facts.”
Id. at 1438–39. An “opinion based on fully disclosed facts
can be punished only if the stated facts are themselves false
and demeaning.” Id. at 1439. This rule is quite logical:
“When the facts underlying a statement of opinion are
disclosed, readers will understand they are getting the
author’s interpretation of the facts presented; they are
therefore unlikely to construe the statement as insinuating
the existence of additional, undisclosed facts.” Id. Applying
this rule to the attorney’s contested statement in Yagman, we
held that the “remark [wa]s protected by the First
Amendment as an expression of opinion based on stated
facts.” Id. at 1440.
Maddow’s contested statement also fits squarely into
Yagman’s first category of opinions: “those based on
assumed or expressly stated facts.” See id. at 1439.
Maddow’s dialogue before and after the contested statement
is solely a reiteration of the material in The Daily Beast
article. At no point before the contested statement does
Maddow “imply the existence of additional, undisclosed
facts.” See id. at 1440. Instead, Maddow reports the
undisputed facts and then transitions into providing
“colorfully expressed” commentary. See Cochran v. NYP
Holdings, Inc., 58 F. Supp. 2d 1113, 1124 (C.D. Cal. 1998).
Maddow’s commentary reads: “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

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HERRING NETWORKS V . M ADDOW 21
propaganda.” Maddow then repeats the undisputed fact that
OAN hired a Sputnik-employed writer. By “disclos[ing] the
factual basis” of her statement, Maddow reveals that the
contested statement was merely her own “interpretation of
the facts presented.” See Yagman, 55 F.3d at 1439 (internal
quotation marks omitted). The audience could “accept or
reject [Maddow’s] opinion based on their own independent
evaluation of the facts” specifically because the undisputed
news story is readily distinguishable from Maddow’s
commentary. See id.
Maddow’s use of hyperbolic rhetoric bolsters this
conclusion. “[L]oose, figurative, or hyperbolic language . . .
negate[s] the impression” that the contested statement is an
assertion of fact. Milkovich v. Lorain J. Co., 497 U.S. 1, 21
(1990); see also Underwager, 69 F.3d at 367 (holding
“colorful, figurative rhetoric” nonactionable because
“reasonable minds would not take [it] to be factual”);
Unelko, 912 F.2d at 1054 (considering whether “an audience
might anticipate rhetoric or hyperbole” because of the
“flavor” of the speaker’s comments). In comparison to the
undisputed facts that Maddow reports, the contested
statement was particularly emphatic and unfounded:
Maddow went from stating that OAN employs a Sputnik
employee to stating that OAN reports Russian propaganda.
A reasonable person would understand Maddow’s contested
statement as an “obvious exaggeration,” Gardner, 563 F.3d
at 989, that is, as Maddow explains, “sandwiched between
precise factual recitations” of The Daily Beast article.
3.
Lastly, we consider “whether the facts implied by
[Maddow’s statement] are susceptible of being proved true
or false.” Unelko, 912 F.2d at 1055. The district court held
that when “taken in isolation,” the contested statement was

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“capable of verification” because “[e]ither OAN receives
money from the Russian government or it does not.” On
appeal, Maddow does not challenge this finding. Instead,
her briefing leans on the general and specific contexts of the
statement to support her argument that the statement is a
nonactionable opinion. We agree with the district court’s
determination. Because the contested statement is
susceptible of being proven true or false, the third factor
leans in favor of a finding that Maddow’s audience could
conclude that the statement implied an assertion of objective
fact.
4.
In sum, two of the factors outlined in Partington—the
general context and the specific context of the contested
statement—negate the impression that the statement is an
assertion of objective fact. While the third factor tilts in the
other direction, we conclude that Maddow’s contested
statement fits within “the ‘rhetorical hyperbole’ [that] has
traditionally added much to the discourse of our Nation.”
Milkovich, 497 U.S. at 20. We therefore affirm the district
court’s grant of Maddow’s anti-SLAPP motion.
D.
A much closer question is whether the district court
abused its discretion in dismissing Herring’s suit with
prejudice. Federal Rule of Civil Procedure 15(a)(2) provides
that the district court should “freely give leave when justice
so requires.” We have previously “stated that ‘this policy is
to be applied with extreme liberality.’” Owens v. Kaiser
Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)
(quoting Morongo Band of Mission Indians v. Rose,
893 F.2d 1074, 1079 (9th Cir. 1990)). “In determining
whether leave to amend is appropriate, the district court

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HERRING NETWORKS V . M ADDOW 23
considers the presence of any of four factors: bad faith,
undue delay, prejudice to the opposing party, and/or
futility.” Id. (citation and internal quotation marks omitted).
“A district court’s failure to consider the relevant factors and
articulate why dismissal should be with prejudice instead of
without prejudice may constitute an abuse of discretion.”
Eminence Cap., 316 F.3d at 1052.
The district court concluded that there was “no set of
facts that could support a claim for defamation based on
Maddow’s statement” and dismissed the complaint with
prejudice. Herring contends that the court’s conclusion was
inconsistent with its refusal to consider Herring’s evidence:
“For the District Court to find that Herring’s evidence would
make no difference, the District Court needed to consider
that evidence, which it did not.” In response, Maddow
argues that the district court acted within its discretion by
dismissing the complaint without leave to amend,
specifically because Herring never asked for leave to amend.
We agree with Maddow. The district court did not abuse
its discretion in dismissing the complaint without leave to
amend because Herring never asked to amend, and if it had,
amendment would have been futile. Moreover, contrary to
Herring’s briefing, the district court’s rejection of Herring’s
evidence, given the applicable Rule 12(b)(6) analysis, is not
inconsistent with its conclusion that such evidence would not
make a difference. Evidence can be both improperly
proffered and unhelpful. See Planned Parenthood, 890 F.3d
at 834; Partington, 56 F.3d at 1162. For example, here, the
deficiency in Herring’s complaint would not have been
overcome by incorporation of the rejected evidence.
Herring’s evidence only tangentially relates to the general
context of the contested statement and does not concern the
specific context of the statement or the statement’s

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susceptibly of being proven true. Thus, despite our “policy
that favors allowing parties to amend their pleadings,”
Partington, 56 F.3d at 1162, the district court’s dismissal
with prejudice was within its discretion. See id.; see also
Gardner, 563 F.3d at 991–92.
CONCLUSION
Maddow’s statement is well within the bounds of what
qualifies as protected speech under the First Amendment.
No reasonable viewer could conclude that Maddow implied
an assertion of objective fact. The judgment of the district
court is therefore affirmed.
AFFIRMED.

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