When “Literally” Literally Means “Figuratively”: One America News Network v. Rachel Maddow - Fordham Intellectual Property, Media & Entertainment Law Journal
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When “Literally” Literally Means “Figuratively”: One America News Network v. Rachel Maddow

When “Literally” Literally Means “Figuratively”: One America News Network v. Rachel Maddow

On the July 22, 2019 Rachel Maddow Show, Rachel Maddow stated the following about One America News Network (“OAN”), an ultra-right-wing news outlet:

We literally learned today that that outlet the president is promoting shares staff with the Kremlin. . . . In this case, the most obsequiously pro-Trump right wing news outlet in America really, literally is paid Russian propaganda. The[ir] on air U.S. politics reporter is paid by the Russian government to produce propaganda for that government.1


OAN sued for defamation because—although it is true that one OAN reporter is also a paid contributor for a state-funded Russian news outlet2—OAN itself is not “literally . . . paid by the Russian government.” OAN is not owned or controlled by Russia, nor does any of its content come from the Russian government.3 Maddow claims that her statement was merely a “rhetorical flourish”4 or a “hyperbolic turn of phrase sandwiched between precise factual recitations that indisputably and accurately state the facts . . . .”5

Indeed, defamation case law is replete with examples of the literal meaning of statements being rendered inoperable by context. The Supreme Court in Milkovich v. Lorain Journal Co. held that the use of “loose, figurative, or hyperbolic language [can] negate the impression that the writer was seriously maintaining” what the literal meaning of their words would imply.6 Courts have held that context can render words such as “dishonest,”7 “blackmail,”8 and “pimp”9 to be merely statements of “rhetorical hyperbole, incapable of being proved true or false.”10

There is even case law for the proposition that the word “literally” actually means figuratively. In 2008 the Fourth Circuit considered a defamation suit involving the claim that the plaintiffs “literally fought on the side of Mobutu who used to chop . . . little children’s hands off.”11 This was held to be not defamation because—in context—it could not “reasonably be interpreted as stating actual facts about [the plaintiff].”12

On May 22, 2020, the court in Rachel Maddow’s case agreed and held that—given the totality of the circumstances involving the statement—the word “literally” should not be taken literally. The court points to the alternative definition of “literally” from the Merriam-Webster Online Dictionary: “in effect: Virtually—used in an exaggerated way to emphasize a statement or description that is not literally true or possible.”13 The court explained, “Nowadays, as evidenced by the two conflicting definitions of the word ‘literally,’ use of the word can be hyperbolic.”14 The court then granted the defendants’ special motion to strike under California’s Anti-Strategic Lawsuits Against Public Participation (“Anti-SLAPP”) law,15 which included awarding attorney’s fees.16

The decision that the word “literally” can be interpreted in this way is cause for concern. It is common for a word to have multiple meanings. But problems arise when a word has opposite and contradictory definitions, such as with the word “literally.” To make matters worse, “literally” is the word commonly used to delineate when something is to be taken literally. In the present case, the court’s position could accurately be expressed in the following vague manner: “Maddow’s literal words are not likely to be interpreted as her literally meaning that OAN is literally paid Russian propaganda.” If any word in the English language should not be allowed to lose its literal meaning, it is the word “literally.”

Imagine a defamation case involving the false statement “John Smith served 10 years in prison for murder.” It would be highly peculiar if the addition of the word “literally” between “Smith” and “served” functioned to weaken—as opposed to strengthen—the defamation case by John Smith. But this is exactly what the court’s decision in Maddow’s case provides for. And such problems would not be limited to defamation cases. Consider the following examples in various areas of law:

• Contract: “If the project is not completed in 12 days, I will literally give you a 20% discount.”
• Advertising: “I literally have over 10 years’ experience.”
• Medical Malpractice: “I literally have performed this operation over a thousand times.”
• Criminal: “This is literally the first time my client has ever been arrested.”
• Civil: “The officer literally picked me up over his head.”
• Family: “My ex-husband literally hasn’t spent more than an hour helping our daughter with her homework.”

The practice of law is highly dependent upon being able to identify what words mean. Therefore, diminishing the plain meaning of the very word that is used to identify plain meanings is ill advised. The willingness to abandon the ordinary definition of the word “literally” could have detrimental effects far beyond defamation litigation. According to case law that recognizes the hyperbolic definition of the word “literally,” it could accurately be said that this is literally the worst legal precedent ever!

  1. Memorandum of Points and Authorities in Support of Defendants’ Special Motion to Strike Plaintiff’s Complaint at 1, Herring Networks, Inc. v. Maddow, No. 19-cv-1713 (S.D. Cal. Oct. 21, 2019) [hereinafter Memorandum in Support of Defendants’ Motion to Strike] (emphasis added) (alterations in original).

  2. Kevin Poulsen, Trump’s New Favorite Channel Employs Kremlin-Paid Journalist, Daily Beast (July 22, 2019), https://www.thedailybeast.com/oan-trumps-new-favorite-channel-employs-kremlin-paid-journalist.

  3. Complaint for Defamation and Damages at 9, Herring Networks, No. 19-cv-1713 (S.D. Cal. Sept. 9, 2019).

  4. Memorandum in Support of Defendants’ Motion to Strike, supra note 1, at 15.

  5. Id. at 2.

  6. Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990).

  7. Standing Comm. on Discipline v. Yagman, 55 F.3d 1430, 1440 (9th Cir. 1995).

  8. Greenbelt Coop. Publ’g Ass’n, Inc. v. Bresler, 398 U.S. 6, 7–8, 13–14 (1970).

  9. Kneivel v. ESPN, 393 F.3d 1068, 1078 (9th Cir. 2005).

  10. Yagman, 55 F.3d at 1440.

  11. CACI Premier Technology, Inc. v. Rhodes, 536 F.3d 280, 302 (4th Cir. 2008) (emphasis added).

  12. Id.

  13. Herring Networks, Inc. v. Maddow, 2020 WL 2614857, at *6 (S.D. Cal. 2020) (order granting defendants’ special motion to strike).

  14. Id.

  15. Id. at *8. This case was subject to Anti-SLAPP protections because “the challenged cause of action is one arising from protected activity” and the plaintiff was unable to show “a probability of prevailing on the claim.” Id. at *2 (quoting Navellier v. Sletten, 52 P.3d 703, 708 (Cal. 2002)).

  16. Id. at *8. Defendants have requested $323,965 in attorney’s fees. Defendants’ Notice of Motion and Motion for Attorneys’ Fees and Costs at 1, Herring Networks, No. 19-cv-1713 (S.D. Cal. June 5, 2020).

Michael Conklin

Michael Conklin is the Powell Endowed Professor of Business Law at Angelo State University. He received his JD from Washburn School of Law, MBA from Oklahoma City University, Postgraduate Certificate in International Business Law from University of London, and Masters in Philosophy of Religion from Biola University. His research focus is diverse but frequently applies survey methodology and statistical analysis to areas previously only covered theoretically.