Bob Murray Demands John Oliver Be Silenced… While HBO Moves Case To Federal Court

from the hey-bob dept

We’ve been covering just how silly coal boss Bob Murray’s SLAPP lawsuit against John Oliver is, and things keep getting sillier. Late last week, Murray’s lawyers dug themselves in even deeper, asking for a gag order on Oliver and HBO (first reported by Betsy Woodruff at the Daily Beast). Specifically, they filed for a temporary restraining order and preliminary injunction to gag Oliver. They even admit that it’s a “gag order” on Oliver and HBO. This kind of prior restraint is not supposed to be allowed under the First Amendment, but Murray’s lawyers already have shown some fairly wacky legal theories, so it doesn’t seem likely that “what the law says” is going to stop them from asking for ridiculous things.

The document specifically requests that the defendants in the case be barred from re-broadcasting Oliver’s hilarious report (which already has 6.6 million views and counting) and also that he be stopped from “publicly discussing the substance of this litigation.” Of course, Oliver himself has already said on his show that, on the advice of HBO’s lawyers, he won’t be discussing the case until it’s over, so this request is even more bizarre. But it’s also silly legally. The First Amendment doesn’t allow for a gag order to prevent someone from discussing a case. That’s blatant prior restraint, and in the immortal words of Walter Sobchak, “the Supreme Court has roundly rejected prior restraint.”

The motion, like the original lawsuit, is highly theatrical, but has little relation to the actual law. It’s basically a litany of complaints about how people are mocking Bob Murray for suing Oliver.

Plaintiffs are quickly learning firsthand about the phenomenon that Time and Fortune magazines have dubbed the “John Oliver Effect.” When Plaintiffs filed their Complaint, they did not appreciate the extent of the destructive aftermath that Defendants” malicious and false broadcast would cause. Mr. Murray and his employees and family have been inundated with an onslaught of threats, harassment, and intimidation by people that are simply following Defendants’ lead as they view and re-view the Defamatory Statements. Murray Energy’s website has been overrun with messages of “Eat Shit, Bob.” Employees who once enjoyed coming to work now spend their days receiving countless phone calls and e-mails telling them they are “a worthless piece of shit,” and worse. Mr. Murray’s family members have even received death threats. None of this would have occurred but for Defendants’ broadcast of the Defamatory Statements. Worse yet, Defendants knew that fans of the show would react in this manner. Continued publication and public access to the Defamatory Statements will only enlist additional people to Defendants’ perverse “call to action,” with additional grave consequences.

Moreover, the John Oliver Effect has already spilled over to directly affect this litigation: numerous media outlets are commenting on their views of this action in a biased fashion that often times provides viewers with access to the entire June 18 broadcast. Additionally, the broadcast’s YouTube video has been viewed 1.9 million times more since the Complaint was filed. The pervasiveness of the Defamatory Statements is unfairly tilting public opinion in Defendants’ favor so much so that third parties have specifically directed threats and harassment at Plaintiffs’ counsel regarding the perceived merits of Plaintiffs’ claims. Plaintiffs’ ability to assemble a fair and impartial jury diminishes every day that the Defamatory Statements are available to prejudice the individuals that might be called upon to serve justice in this matter.

Basically, this request for a gag order boils down to: “OMG, people are making fun of our lawsuit and the lawyers writing this, so please make them stop.” Perhaps the reason people are making fun of you is because the lawsuit is a bad one, guys. And that’s all protected free speech under this great American thing we have called the First Amendment of the Constitution. You guys are the lawyers — you’re supposed to know that stuff.

The complaint goes on to list out some excerpts from some phone calls to Murray’s companies that were clearly people responding to the Oliver piece and the lawsuit. I’m sure it’s no fun at all to be on the receiving end of those calls — but, again, that’s not against the law. Hell, some of the phone calls don’t sound particularly harassing: “Others demanded that Plaintiffs “stop with their bullshit lawsuits” or asked “Why are you suing John Oliver?” Who knew that merely asking why are you suing someone would be held up as evidence of harassment? Who knew that Bob Murray was such a snowflake? The report also highlights a bunch of emails all saying “eat shit Bob” in some form or another (a statement that comes directly from the Oliver broadcast):

Of course, if this is really so bothersome, why doesn’t Murry just set up a filter to route all emails with “eat shit” in them to trash? Seems like a pretty easy solution.

There’s more in the filing in which they try to tap dance around the First Amendment claims by saying that there’s no harm in censoring speech and putting a gag order on Oliver/HBO. This goes against basically all historical precedent noting that prior restraint on speech is, by itself, a form of harm. But Murray’s lawyers don’t want to talk about that. They pull out a classic anti-First Amendment trope, that because there are a few, very narrowly tailored exceptions to the First Amendment, their own requested exception surely must be okay:

Defendants doubtless will resist an injunction using words such as “First Amendment” and “free speech.” But these rights do not give anyone the right to say anything, anywhere, to anyone. Indeed, our Nation’s founding founders and The Supreme Court of the United States have repeatedly noted that false and defamatory statements deserve no Constitutional protection.

Sure. The courts have noted that defamation isn’t protected by the First Amendment, but this gag order request is not asking for a blocking of just defamatory statements (hell, they barely identify any potentially defamatory statements amidst all the hand waving). They’re literally asking for a gag order on discussing the case itself. The case itself is not defamatory. You can’t silence a defendant from talking about the fact that you stupidly sued him. That’s not what the Supreme Court is saying. Indeed, the two citations that Murray’s lawyers point to from the Supreme Court notably do not support injunctions against speech. They merely note that defamation is not protected speech. But plenty of other cases explicitly make it clear that injunctions on speech should not be granted because of prior restraint. In Near v. Minnesota, the court said that a law granting injunctions on defamation was unconstitutional. In Bantam Books v. Sullivan the court famously said that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”

Murray’s lawyers do nothing to counter this fairly set-in-stone precedents. They just go with the “well, there are exceptions, therefore gag order.”

They also play up — once again — the fact that Murray has health problems, insisting that this weighs in favor of granting an injunction. Amazingly, they point to a case that said an injunction could be issued against a landlord for trying to bring in an exterminator, because it might impact a tenant’s pulmonary fibrosis, as a reason to grant this injunction against speech. Really.

And indeed, pulmonary fibrosis has been specifically recognized to be an ailment that can warrant injunctive relief, including under less aggravating circumstances than those found here. See 2 Perlman Drive, LLC v. Stevens 2017 N.Y. Slip. Op. 50173(U), (N.Y. Civ. Ct. Feb 9, 2017) (enjoining landlord from employment of chemical exterminators in apartment tenanted by sufferer from pulmonary fibrosis).

Yes, that’s Bob Murray’s lawyers stating that people mocking Bob Murray is a more aggravating circumstance than someone getting sprayed with harmful chemicals. That takes some level of chutzpah on the part of his lawyers.

They also pull out another old trope, insisting that all this mocking press coverage might influence a jury, so surely a gag order is appropriate. Except, of course, this isn’t the UK where there are superinjunctions or whatnot. The press is allowed to talk about stuff, and they’re even allowed to give their opinion on things. And if that opinion includes mocking the bad decisions of Bob Murray, that too is protected speech. Amusingly, among the complaints about those biased press reports, Murray’s lawyers call out Ken “Popehat” White’s opinions of the lawsuit in the Daily Beast (without naming Ken):

The Daily Beast ran an article on June 22, 2017, titled “Republican Coal King Sues HBO over John Oliver’s Show,” in which it features a statement by an attorney describing this lawsuit as “frivolous and vexatious.”

Yes, and so? That’s a protected opinion backed up with lots of experience.

Either way, this request will now be viewed by a federal judge, rather than a local West Virginia court. Because, just as we (and basically everyone else) predicted, HBO has removed the case to federal court. Murray’s lawyers may try to get the case sent back to the local court, but that’s unlikely to work. When you have defendants in other states (and even some of the plaintiffs in other states) and a cause of action over $75k, then you have what’s known as diversity, and the case should rightfully be kicked up to federal court. In fact, the Notice of Removal argues that there really isn’t even any West Virginia parties in the lawsuit at all, since the only “real” plaintiffs are Bob Murray and Murray Energy — both of which are from Ohio. Yes, the lawsuit lists a bunch of West Virginia subsidiaries of Murray Energy, but Oliver never mentioned any of them at all, so there’s no legitimate claim any of them can make for defamation. Indeed, the filing argues they were just thrown into the case to pretend that it belonged in West Virginia local court.

I get the feeling we’ve still got plenty of future filings to look forward to in this SLAPP suit (again, West Virginia, tragically, has no anti-SLAPP law). Wouldn’t it be nice if we finally got a federal anti-SLAPP law to deal with these kinds of suits?

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Comments on “Bob Murray Demands John Oliver Be Silenced… While HBO Moves Case To Federal Court”

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63 Comments
Paul (profile) says:

Better Call Saul

There is a quite telling scene in “Better Call Saul” where when suing a nursing home, the defendants throw motion after motion at Saul in an attempt to shut him down by making him miss something.

This is that same tactic, it does not matter that the motions will fail, what matters is that if you toss enough motions at a legal team you will at some point find a crack that you can exploit or he will miss a court appointment and find one of the motions upheld. The more they fire off and the faster they can send motions the greater something is missed and they yell “Got ya!”.

Roger Strong (profile) says:

Judging by the above sampling, 50% of the people sending obscene emails are named Chris.

It’s worth noting that Murray Energy was receiving “Eat Shit, Bob” messages before John Oliver (and squirrel) came along. One such message – written on a cheque returned by an employee – was shown earlier in the show. (A $3.23 cheque sent to the employee in return for accepting increased production over safety.)

The employee’s name was blanked out. But it was probably Chris.

Anonymous Coward says:

Re: Re: Re:

Well the Streisand Effect and the John Oliver Effect are different. The Streisand Effect is bringing attention to the thing you are trying to silence by trying to silence it. The John Oliver Effect is bringing attention to something because John Oliver did a segment on it. The two can overlap because they share similarities, but are ultimately different terms.

orbitalinsertion (profile) says:

Re: Re: Re: Re:

Yes, but, John Oliver only did such focus on Murray in the first place since Murray pre-Streisanded himself. It’s a complex feedback system at work here.

For Murray though, it all boils down to acting with impunity and being insulated from … well probably anything, for most of his life. Having to deal with the consequences of his idiocy being made public at this late age is upsetting, i am sure. Or maybe not. I wouldn’t know if he is really upset at all, but his desire for control has been prodded into action.

DB (profile) says:

Re: Re:

Apart from critical national security issues during wartime, when has a gag order in the U.S. applied to the media in general?

There have been a few cases in the past, but they have been superseded as precedent. Prior restraint on the media is constitutionally disfavored to the point of effective extinction. You can find a few attempts by corrupt local courts, but they are quickly reversed on appeal to a court with adults in charge.

Paul (profile) says:

Re: Re: Re:

Courts will use “John Doe” to protect people quite often, and impose a media blackout for telling the public who this person is. This is more common when the order itself is to uncover who “John Doe” is, especially if he sends a lawyer to represent himself.

In most cases “John Doe” needs to prove to the court he is who he says he is. But given the nature of the case, the court will strike his real name from the record and inform the media they are not to use his real name.

This is a common case where the Media can get in trouble for uncovering the identity of the person and saying who it is publicly.

So there are times the Media can correctly be gagged.

This court case does fit any of those reasons however.

Cowardly Lion says:

Re: Re: Re: Re:

Can’t speak for the USA, but this is extremely common practice in the UK, France, Germany… By way of example, the media are not allowed to identify minors caught up in issues where the authorities are involved, be it social services, law enforcement or the courts.

They are expected to know these rules and abide by them. The penalties for breach are harsh and severe.

Anonymous Coward says:

But plenty of other cases explicitly make it clear that injunctions on speech should not be granted because of prior restraint.

Just to clarify, that refers to preliminary injunctions. If Bob Murray won the case, he could constitutionally seek a permanent injunction prohibiting John Oliver from repeating the statements found to be defamatory.

The problem here is he wants a preliminary injunction, before anyone has decided whether or not the statements are indeed defamatory.

Tanner Andrews (profile) says:

Re: Preliminary v. Permanent Injunction

If Bob Murray won the case, he could constitutionally seek a permanent injunction prohibiting John Oliver from repeating the statements found to be defamatory

You may want further information. Willing v. Mazzocone, 393 A.2d 1155 is the case they teach in school, but of course you should probably not forget Near v. Minnesota, 283 U.S. 697.

Bergman (profile) says:

Wait a second

I don’t see how gagging Oliver will get them what they want. I mean:

“Moreover, the John Oliver Effect has already spilled over to directly affect this litigation: numerous media outlets are commenting on their views of this action in a biased fashion that often times provides viewers with access to the entire June 18 broadcast.”

Right there in their filing they seem to be saying that gagging Oliver will prevent other media outlets from reporting on their SLAPP suit and the original exercise of speech they are suing over.

Do they somehow expect the gag order they want to somehow extend to members of the press who are not party to the lawsuit or something?

That One Guy (profile) says:

Re: Setting precedent

I imagine the thinking is that if they can force Oliver/HBO to back down and shut up they can then use that to threaten others into silence as well.

"We were willing and able to go after someone with the backing of a major, well-funded company. Unless you think you have a better chance(or more money) you’d better take that stuff down before we come after you…"

Anonymous Coward says:

Re: Re: "Noted"

The First Amendment itself is absolutist. Most similar laws include text allowing broad limitations, like Europe’s: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety” etc.

The Bill of Rights itself has such clauses in other sections, like only preventing “unreasonable” searches and seizures and allowing warrants to override even that.

Paul (profile) says:

Re: Re: "Noted"

The First Amendment says you can say what you want, when ever you want, anyplace you want. It does not prevent anyone from telling to to shut up, or for you to be arrested on what you said.

In the case of defamation the court has clear evidence that your saying something that is “Not True” and “Causes Injury to someone”. Only after a clear finding can a court order you to stop saying something.

Now if your going around saying clearly stupid fault statements like “Trump likes to eat baby’s”, your well with in your rights to say this till someone takes you to court and wins.

There can be a few situations where the court may stop you from saying something more quickly, but the court needs to have proof that “The statement is likely to cause additional harm” and “Is likely false”. The difficulty here is Harm needs to be real, not ethereal.

Anonymous Coward says:

Re: Re: Re: "Noted"

The First Amendment says you can say what you want, when ever you want, anyplace you want. It does not prevent … you to be arrested on what you said.

What? When we talk about some other country without freedom of speech, aren’t we talking about exactly that? Insult the king, get thrown in jail… I think that’s why we have a First Amendment.

Ehud Gavron (profile) says:

Re: Re: Re:3 "Noted"

It’s hard to read because all those 26 letters are confusing, but everything you said is 100% wrong.

Sadly not only did the article contain a link to where Ken “Popehat” White explained this — that you couldn’t be BOTHERED TO READ but you expect us to read your crap… but a simple google search also reveals it. https://www.google.com/search?q=fire+in+a+crowded+theater

Saying “shouting ‘Fire’ with the intent to cause people to get hurt can get you thrown in jail” on techdirt can get you the disrespect most illiterate idiots get.

E

DebbyS (profile) says:

Re: Zebras

Referees and those who guide balloonists at our annual Albuquerque International Balloon Fiesta are called “Zebras” because they wear black-and-white striped shirts and walk around the balloon field helping balloonists and tourists (all of whom are usually quite well behaved). Such zebras might actually be of help to the proceedings!

That One Guy (profile) says:

Streisand Effect, meet Bob. Bob, Streisand Effect

With the tantrum they’re throwing I can’t help but think that Murray and/or his legal team are the types that would try to drag gravity to court if he threw a rock into the air and it came back to smack him in the head.

Actions have consequences. Sending a C&D to Oliver meant he was pretty much guaranteed to speed a good chunk of his show on Murray, and suing him ensured that the matter would get even more coverage. Pretty much every single step of this has been the fault of Murray, and now he’s upset that he’s facing the backlash cause by his actions.

I’d say he and his legal team was acting extraordinarily childish except a) children at least have an excuse in that they aren’t expected to know better, and b) I don’t want to insult children by comparing them to Murray and his legal team.

Ehud Gavron (profile) says:

article attribution

Sometimes I read an article (such as this one) and am enthralled all the way until the very end. Then I think “Who is the genius who penned this?” Alas not having a 47″ tall screen I’m forced to scroll up many pages to find the author. Then I think “Well said, Mr. Masnick.” Then I have to scroll down to find where I was again.

Perhaps TechDirt could also put the byline at the bottom? 🙂

Sincerely,

Ehud Gavron
Tucson 105°F Arizona

That Anonymous Coward (profile) says:

“None of this would have occurred but for Defendants’ broadcast of the Defamatory Statements”

We played no part in this by sending an idiotic legal threat to them well before the story ran, getting their attention to what we were seeking to hide. He is a very rich man and in the grand tradition of the country we expect you to remember the law is only to serve us, not them.
We’ll throw some bullshit leagalese on the page & you just rubber stamp it or we’ll pour millions into the next election to unseat you.

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