## "Literally" legality

Ken Stone, "OAN to Appeal Judge’s Ruling to Toss Rachel Maddow Defamation Suit", Times of San Diego 5/22/2020:

A San Diego federal judge Friday dismissed a $10 million defamation lawsuit filed by the owners and operators of San Diego-based One America News Network against MSNBC and political commentator Rachel Maddow. Last summer, the liberal host told her viewers that the Trump-friendly conservative network “really literally is paid Russian propaganda.” U.S. District Judge Cynthia Bashant dismissed Herring Networks’ suit with prejudice, ruling “there is no set of facts that could support a claim for defamation based on Maddow’s statement,” made during a July 22, 2019, segment of her show. The judge's order is here, and it quotes the context of Maddow's remark: Maddow opened the segment by informing viewers about OAN, calling it a “boutique little news outlet that is designed specifically for Trump-mega fans.” She pointed out that President Trump previously praised OAN’s ratings on Twitter and gave OAN a press pass to the White House. Maddow then stated that she has the “most perfectly formed story of the day” and presented Kevin Poulsen’s Daily Beast article. She stated the article reports that OAN, which is “Trump’s favorite, more Trump-ier than Fox TV network[,] . . . has a full-time on-air reporter who covers U.S. politics, who is also simultaneously on the payroll of the Kremlin.” The reporter is being paid to produce “pro-Putin propaganda” for the Russian-funded network Sputnik. Maddow states, “there is a lot of news today, but among the giblets the news gods dropped off their plates for us to eat off the floor today, is the actual news that this super right-wing news outlet that the President has repeatedly endorsed . . . we literally learned today that that outlet the President is promoting shares staff with the Kremlin. I mean, what?” She laughs and soon after says, “in this case, the most obsequiously pro-Trump right wing news outlet in America really literally is paid Russian propaganda. Their on-air U.S. politics reporter is paid by the Russian government to produce propaganda for that government.” As explained in an earlier news article, OAN's defamation suit featured an extensive linguistic analysis of literally — Ken Stone, "Rachel Maddow Faces Slapdown by UC Linguistics Professor in Defamation Suit", Times of San Diego 12/3/2019: If Rachel Maddow loses her$10 million defamation case brought by the owner of San Diego-based One America News Network, she can blame, in part, a UC Santa Barbara linguistics professor.

The professor, Stefan Thomas Gries, argues in a long analysis of Maddow’s on-air speech patterns that when she says “literally,” she means “in fact.”

Judge Cynthia Bashant in downtown San Diego federal court will hear both sides Dec. 16 in a hearing on an anti-SLAPP motion.

Prof. Gries' 35-page analysis is central to the OAN lawsuit. And the core of his argument cites the conclusions of Michael Israel ("Literally speaking",  J. Pragmatics 2002) about the evolution of literally into an intensifier:

He goes on to demonstrate that one of literally's central functions now is not so much (anymore) that of "marking a commitment to a narrowly construed sentence meaning" (e.g., by determining which of the senses of a word is intended) but instead marking "the speaker's commitment to the intended utterance meaning". (p. 428). More to the point even, his examples show that the use of literally can be "closely parallel" to uses of really and truly (i.e. intensifiers whose historical development is complete) and that, often,

it makes no difference whether the language used is figurative or not – the point is that the language used is perfectly suited to express the speaker's meaning, and that the speaker is strongly committed to the truth of that meaning. (Israel 2002:429, my emphasis)

Later studies and discussions of literally (e.g. Liberman 2011, Park 2016) discuss different aspects of literally (e.g., its co-occurrence with almost or different historical data), but neither alter, nor add substantively to, the inventory of functions literally serves.

The judge was not convinced by Gries' argument:

A main issue here is whether Maddow’s statement was hyperbolic. Because Maddow used the word “literally” (i.e., OAN is “literally” paid Russian propaganda), Plaintiff asserts it would be unreasonable to find the statement to be hyperbolic. What is noteworthy about the word “literally” is its conflicting definitions. The first definition of the word is: “in a literal sense or manner: such as . . . in a way that uses the ordinary or primary meaning of a term or expression [or] used to emphasize the truth and accuracy of a statement or description.” Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/literally (last visited May 19, 2020). But the alternative definition is: “in effect : Virtually — used in an exaggerated way to emphasize a statement or description that is not literally true or possible.” Id. Further, under either definition, the term can “lose[] its meaning when considered” in context. See Knievel v. ESPN, 393 F.3d 1068, 1074 (9th Cir. 2005). Although Maddow used the word “literally,” this does not necessarily mean the phrase should be taken to be factual. Nowadays, as evidenced by the two conflicting definitions of the word “literally,” use of the word can be hyperbolic.

The Court must therefore consider the language surrounding the allegedly defamatory statement to put into perspective the content of the statement. There are certainly facts presented in the segment that are not in dispute. It is undisputed that the Daily Beast article was published, wherein the author Kevin Poulsen opined that Kristian Rouz has been reporting on U.S. politics for OAN and “simultaneously writing for Sputnik, a Kremlin-owned news wire.” (RJN Ex. A.) Rouz “is a Russian national on the payroll of” Sputnik. Poulsen then detailed a few of Rouz’s reports for OAN, pointing out that “Kremlin propaganda sometimes sneaks into Rouz’s segments.” Poulsen found no disclosure by OAN of Rouz’s “work for Russia’s state-owned media, where he continues to file stories daily, primarily on economic news.” (Id.) […]

The Ninth Circuit has held that “when a speaker outlines the factual basis for his conclusion, his statement is protected by the First Amendment.” […]

The basis for Maddow’s allegedly defamatory statement is clearly the story from the Daily Beast, which she presents truthfully and in full. Thus, she sufficiently provides listeners with the factual basis for her statement. Maddow “does not even hint that her opinion is based on any additional, undisclosed facts not known to the public.” […] Viewers were presented with the details of the story before hearing the alleged defamatory statement and no additional facts were implied.

Here's the full audio from the original Maddow segment:

1. ### Allen Thrasher said,

May 25, 2020 @ 7:15 am

If "literally" may be used non-literally, how can we express literally literally? This is a complaint, but not just a complaint. With what word or phrase should we now express what literally" used to express? I seek counsel.

[(myl) We could ask the same question about "very", "really", "terribly", "awfully", and other adverbs that have been more-or-less bleached into intensifiers.

In each case, the choice of alternatives depends on exactly what you mean. For literally, you could start with the alternatives given under sense 1 by Merriam-Webster.]

2. ### Matt said,

May 25, 2020 @ 9:07 am

After all the fuss over “bogus” chiropractic treatment in the UK a few years back and other similar US and UK cases that I can’t recall off the top of my head, it is a relief to see such a well-reasoned, level-headed analysis of a speaker’s intended meaning, and the likely inferred meaning, winning the day in a legal case.

I was expecting the usual punchline that a judge relied on a dictionary definition from 1920, and ignored 100 years of language change.

Whether you agree with the shift or hate it, you can’t deny it has taken place.

Now if only we can stop the hijacking of “random” to mean weird/odd/left-field/unusual… (spoken like a true Software Engineer).

3. ### Philip Taylor said,

May 25, 2020 @ 9:43 am

Or "fortuitous" to mean "serendipitous" ? But I suppose we must blame the Romans, really, overloading as they did fortuna with the meaning of "good luck" as well as those of "chance, fate".

4. ### Kristian said,

May 25, 2020 @ 10:00 am

Well, I don't know. If someone said, "Mr Smith is literally a Russian spy", I would believe this meant that Mr Smith actually is working for the FSB or some similar organization, on their payroll, etc. If it turned out that this someone actually meant something like "Hyperbolically speaking, Mr Smith is a Russian spy because he meets Russian officials socially and talks to them about politics (and I am strongly committed to the idea that this is fishy)", then I would consider that I had been lied to.

Just because people say stuff like "there were literally a million people there", when there were only one thousand, and "it was so crowded that we literally couldn't breathe" (and I don't have anything against this), doesn't mean that we should be able to get away with saying anything just because we add "literally" to our statements.

This is not meant to be a statement about this actual court case. I don't know the facts or the law involved well enough to comment about it.

5. ### Cervantes said,

May 25, 2020 @ 1:47 pm

I used to be an actor. A review for one of my shows said that my co-star "literally sparkled like a diamond." We thought that was pretty funny.

6. ### Gregory Kusnick said,

May 25, 2020 @ 3:31 pm

I've seen performances of Balanchine's Jewels where the dancers did literally sparkle like diamonds.

That aside, if Rouz reported for Sputnik, and got paid for it, at the same time as he was reporting for OAN, and moreover frequently reported the same content for both outlets, then Maddow's claim seems literally true, in the most literal sense of "literal ".

7. ### john v burke said,

May 25, 2020 @ 4:26 pm

I couldn't tell you who Marbury was, or Wainwright, or name any of the members of the Topeka Board of Education, but I can't fail to be impressed by a citation to a case in which Evel Knievel was a party.

8. ### Julian said,

May 25, 2020 @ 5:49 pm

Matt: My vocabulary has been broadened by having teenage children. I like the polysemous 'random'. I think it's, maybe not quite narly, but certainly cool.

9. ### J.W. Brewer said,

May 25, 2020 @ 6:39 pm

Who knows whether Ms. Maddow was being hyperbolic, as a matter of subjective intent, when she made the statement, but the variousness of its use in modern AmEng certainly gave her (or her counsel) some convenient wiggle room after she got sued. But the more important part of the court's analysis imho (even if maybe increasingly theoretical in these days when one ought to assume that the most over-the-top sentence from a larger discourse will get pulled out and disseminated as a quote without its original full context) is the assumption that whoever heard her say this sentence also heard the full context and could thus reach their own conclusion as to whether or not the allegedly defamatory conclusion plausibly followed from the other facts stated — listeners who didn't think the conclusion followed particularly obviously from the other facts stated would by definition thus be more likely to think the conclusion either hyperbolic or false, in either case tending to save the plaintiff's reputation from unjust harm.

10. ### Bob Moore said,

May 25, 2020 @ 6:47 pm

@Matt, ironically the sense of "random" as meaning weird/odd/left-field/unusual came, as far as I know, from MIT, where those using it certainly understood the technical meaning of "random". This usage was well established at MIT by the time I arrived as a freshman more than 50 years ago. The usage was notable enough that it was incorporated into the name a new dorm in 1968, Random Hall. The name of the dorm was originally intended to be Random House, but it was quickly changed when the publishing company of that name objected. It was not until decades later that I started hearing "random" used in this sense by people with no direct MIT connection.

11. ### Andrew Usher said,

May 25, 2020 @ 8:47 pm

While I agree with his analysis of this use of 'literally', I don't think it should matter as, even without the intensifiers, stating that a media source is 'paid Russian propaganda' is potentially defamatory.

Of course one could say that there was no actual damage here as the people that pay any attention to Maddow and the audience of OAN probably have zero intersection.

k_over_hbarc at yahoo.com

12. ### DaveK said,

May 25, 2020 @ 8:53 pm

Maddow seems to be using “literally” to mean “in a certain sense” and it’s not much of a stretch to conclude that sharing employees with the Kremlin means that the content these employees provide you is “paid Russian propaganda. She explains what she means immediately after.
The use of “literally” here isn’t hyperbole; it’s more like “humans are literally mammals” or “nations are literally huge tribes”. The statements are true although they aren’t the usual way the terms are used.

13. ### J.W. Brewer said,

May 25, 2020 @ 9:14 pm

On the one hand, I find DaveK's analysis persuasive, yet on the other hand I'm struck by the fact that one could have conveyed that same nuance by using "technically" instead of "literally" but that would have had much less, in this example, of a sting and it's not unreasonable to think that the lack of sting has something to do with why she didn't say "technically." Obviously, intentionally saying things that carry a sting but that your lawyers can still explain away in court is a useful rhetorical skill for someone in Ms. Maddow's line of work.

14. ### J.W. Brewer said,

May 25, 2020 @ 9:30 pm

Having now skimmed the court's actual opinion, there are I think two important conclusions it reaches that may put some of the disagreement in this comment thread into perspective.

On the one hand, the court says: "Here, taken in isolation, the statement
that OAN is 'literally paid Russia propaganda' is capable of verification. Either
OAN receives money from the Russian government or it does not. Thus, this factor
weighs in favor of a finding that viewers could conclude that the statement implied
an assertion of objective fact."

Yet on the other hand (when the sentence is NOT considered merely in isolation): "Considering the totality of the circumstances—including the general context of the statements, the specific context of the statements, and the statements’ susceptibility of being proven true or false—a reasonable factfinder could only conclude that the statement was one of opinion not fact."

I don't personally have any difficulty reconciling those two statements, but I accept that if I were not as deeply immersed in the particular folkways of the U.S. legal system as I happen to be I might be a bit puzzled.

15. ### James Hartzell said,

May 25, 2020 @ 9:40 pm

A lot of the commentators are missing this part:
'The Ninth Circuit has held that "when a speaker outlines the factual basis for his conclusion, his statement is protected by the First Amendment." […]'
She stated facts and a source for those facts, and then made it clear that the conclusion was based on reasoning from those facts. That is enough under the relevant law… even if the conclusion was a non sequitur or those well-sourced facts turned out to be.

'Maddow "does not even hint that her opinion is based on any additional, undisclosed facts not known to the public." […] Viewers were presented with the details of the story before hearing the alleged defamatory statement and no additional facts were implied.'

Defamation is to prevent people from lying when they imply they're the primary source, not to keep people from speculating when it's clear what the factual basis of the speculation is. Commentators are free to be as illogical or non-sequitur as they want.

Otherwise, a lot of the comments here would be defaming Ms Maddow for the conclusions of their poor legal reasoning.

May 26, 2020 @ 3:41 am

@Philip Taylor: FWIW, "fortuitous contact" is an electrical engineering/wiring term for a bad thing (a dislodged wire touching something it shouldn't).

17. ### Philip Taylor said,

May 26, 2020 @ 5:18 am

Adam — When I started my career in international telegraphy some 55+ years ago, one of the first things we learned were the various categories of distortion, which included fortuitous and synchronous. But it was not the "fortuitous" or the "synchronous" that were bad, it was the distortion itself.

Of course, in the case of contact, it can either be desired or undesired, but in the case of distortion it is always undesired.

18. ### David Morris said,

May 26, 2020 @ 5:35 am

How many judge Fridays do they have? Is that like a judicial man Friday?

19. ### Andrew Usher said,

May 26, 2020 @ 5:18 pm

J.W.Brewer:
I don't think 'technically' would work in this case. 'OAN is techically paid Russian propaganda' doesn't sound logical, possibly because 'propaganda' is definitely not any sort of technical term.

My point was that 'really' and 'literally' should be able to simply be taken out of the sentence for legal purposes: they certainly don't moderate the accusation.

James Hartzell:
I don't think it can be right that defamation is limited to where the defamer claims to be the primary source, or you could get away with anything by prefacing it with 'some people told me …'!

20. ### Jonathan Silk said,

May 27, 2020 @ 4:07 am

@Julian
narly? surely it is gnarly, is it not?
(ngram viewer backs this up, as the former seems hardly to exist)

21. ### milu said,

May 27, 2020 @ 4:17 am

@J.W. Brewer: thanks for taking the time to dig into this. Defamation/first-amendment law seems fascinating :)

I would imagine that if any statement that was demonstrably not true could be automatically slammed as defamation, even though that sounds like a good idea on paper (why would we be ok with untruths being uttered after all) that would open up a legal avenue for corporations and wealthy individuals to lawyer down pretty much anyone criticising them by carefully nitpicking inaccuracies and heated hyperboles.

Now, i'm sure that's happening to a certain extent anyway, and the threat of a protracted lawsuit can already go a long way to shutting down inconvenient voices, but it seems like a good thing that the legal system doesn't stop at mere truthfulness as a measure of defamation.

Also, is the OAN a well-known company? I'm wondering how much of a Streisand effect this ruling might have. I'd never heard of them, but then I am not an American.

22. ### Matt said,

May 27, 2020 @ 8:19 am

@Julian and @Bob Moore: My reference to “random” was intended as tongue-in-cheek, but I appreciate the extra background none-the-less.

Back on topic:

@Andrew Usher, I would imagine (or hope) there is a legal distinction between “some people told me”, and “here is some information I have from a named source, which you the audience are free to independently lookup and arrive at your own conclusions regarding the accuracy of the primary source and the opinion I have based on that information”.

23. ### J.W. Brewer said,

May 27, 2020 @ 9:44 am

@milu et al., here's the thing. The U.S. legal system is notably skeptical of and hostile to defamation claims, especially by contrast to the U.K. legal system (and many other foreign ones as well, but American and English law are, as it were, "cognate" for historical reasons but have experienced much greater-than-average semantic drift in this particular area). The U.S./U.K. distinction was already present in the 18th century (due inter alia to negative American reaction to the way in which the U.K. gov't both in the colonies and at home used charges of "seditious libel" against political dissenters), but has grown stronger since the mid-20th-century.

Part of the negative U.S. attitude toward defamation claims is formally embodied in the formal rules, which explicitly impose certain explicit hurdles for a plaintiff to overcome. But it is also probably the case at least at the margin and maybe more than just at the margin that the formal rules of defamation law sometimes get applied in practice with a bit of a thumb on the scale for the benefit of defendants. This may make pure linguistic analysis of limited use, because the courts may be predisposed, when a statement is susceptible of various plausible readings as quite a lot of statements in natural language are, to stretch a bit to find an interpretation sufficiently benign to rule against the allegedly defamed plaintiff and dismiss the case on the basis that that's really the only possible interpretation, or at least the best interpretation, of the challenged statement. By contrast, in other types of law where linguistic meaning and ambiguity are also relevant (e.g. allegations of fraud in an ordinary commercial setting) the courts may be more likely to say that if a statement has both a benign and non-benign possible reading, the case ought to go forward, possibly all the way to a trial at which a dozen members of the community get to decide which reading is more plausible in context.

24. ### milu said,

May 27, 2020 @ 10:22 am

@JW Brewer: wow, that is fascinating, thank you.

So, are you saying that a defamation trial is not the best arena in which to set a legal precedent for the non-literal meaning of "literally" because semantic analysis is only tangential to this sort of ruling?

While possibly a fraud case where, say, an advertiser used "literally" rather loosely would better showcase the debate around the mainstreaming of non-literal "literally"?

25. ### J.W. Brewer said,

May 27, 2020 @ 10:53 am

@milu: that would be my prediction ceteris paribus, but I want to be clear I'm talking about general tendencies, not sharp and absolute distinctions.

On the other hand, in a consumer fraud case, the courts may well also use pragmatics as well as semantics, i.e. they will assume as a key background fact that everyone knows that advertisers tend to exaggerate and distort to at least some degree and that the median consumer can thus be expected to interpret advertisements in that light rather than taking them purely at face value. The courts may also (and this is maybe right at the semantics/pragmatics boundary?) pay attention to register, such that a challenged statement phrased in colloquial language in the middle of a colloquial-register discourse will be evaluated differently than a challenged statement made in the sort of fussily-formal and lawyer-driven language you hear in the "fine print" recited quickly at the end of advertisements for prescription drugs and other heavily-regulated products. So only a statement that remains materially misleading after applying the usual discount for the advertising context ought, if the system is working well, be thought fraudulent. The US legal jargon for "self-promotional statement that may well not be true in the strict sense but that we're not willing to treat as fraudulent" is the rather lovely (imho) word "puffery" or sometimes "mere puffery." (Maybe that jargon is also used in other Anglophone legal systems; I don't know one way or another.)

26. ### milu said,

May 27, 2020 @ 3:57 pm

I mean, pragmatics is basically applied semantics, isn't it ;)

Anyway, I have no clue about law as you can tell, but I am curious as to how lawmakers and courts handle semantics, seeing as they need their meanings decidable and discrete while basically all of 20th-century philosophy has been about knocking down every assumption of fixedness and universality in meaning.

that's sort of an off-topic comment in how zoomed-out it is with regards to the actual topic here, but you kinda sound like an educator, and I mean that in the best possible way ;) so I thought I could do worse than ask you if you know of any good, beginner-friendly legal philosopher who takes on these issues. I'm really interested.

Also, puffery: very cute :)

27. ### Philip Taylor said,

May 28, 2020 @ 4:26 am

I don't believe that in British English we have "puffery" per se, but we most certainly have "puff", of which the OED says :

b. Inflated or unmerited praise or commendation; an instance of this; an extravagantly laudatory advertisement or review. Later also more generally: a review, comment, etc., regarded as constituting good publicity.

28. ### Coby Lubliner said,

May 28, 2020 @ 11:00 am

As for the literal meaning of "literally", perhaps it can be replaced with a borrowing of the Spanish textualmente. "Textually," anyone?

29. ### milu said,

May 29, 2020 @ 3:17 am

@Coby "in the literal sense" sounds perfectly fine to me. I'm cool trading in the compactness of literal "literally" for the punch it packs as an intensifier.