Ever since coal boss Bob Murray threatened and then sued John Oliver and HBO over their story mocking his supposed concern for coal miners, I’ve been publicly (and possibly privately*) bugging Oliver and his team at HBO to do an episode specifically about SLAPP lawsuits and anti-SLAPP laws. And I’m happy to say that they listened! This past Sunday, Oliver’s big story was all about SLAPP suits and anti-SLAPP laws, and focused again on Bob Murray, who finally dropped his case against Oliver and HBO earlier this year. It is well worth watching all the way up until the end:
While most of the attention is obviously going to that fairly epic final musical number of insults directed at Bob Murray, I wanted to call out a few important points that were mentioned earlier in the piece that might have been passed over by some:
Oliver highlights the real chilling effects of SLAPP suits in a variety of ways, including a newspaper that deleted all its coverage of Murray despite winning a defamation lawsuit he filed against it for covering a protest against his companies, and the fact that there are two ongoing lawsuits involving claims of harassment by Murray of employees that have received almost no news coverage at all. The point of SLAPP suits is to create a chilling effect on people talking about things. And it works unfortunately often.
The stunning costs of these lawsuits. Oliver notes that their own lawsuit cost HBO over $200k in legal fees and resulted in a tripling of the show’s insurance premiums, despite the fact they won the case easily. I note this in particular, because I’ve heard some people argue that we don’t need anti-SLAPP laws (or, relatedly, Section 230) because “private insurance” can fix the problems by protecting companies. Except, as the Murray/Oliver case shows, that’s not at all true.
How blatant these cases can be. Oliver mentions the fact that long after Trump sued reporter Tim O’Brien for $5 billion for reporting that Trump wasn’t actually as wealthy as he claimed to be, Trump admitted he “did it to make his life miserable, which I’m happy about.” Oliver also has a clip of the lawyer for a waste disposal company, GreenGroup, literally laughing about suing some people for $30 million, because they raised concerns about the storage of toxic coal ash on Facebook.
Obviously, Oliver’s show is first and foremost a comedy show, though done in a way that educates people about important topics. So I can’t fault the show for not including everything that would be useful to show. However, there were a couple of points that I wish were better covered in the piece (though I recognize it’s difficult to get everything covered in the 25 minutes or so they had, and also to keep things funny). Among them:
The wide variance in quality of anti-SLAPP laws. To simplify matters, Oliver just mentioned that they vary in quality, but focused on states with anti-SLAPP laws vs. those without them at all. But the difference in individual states matters quite a lot as we’ve discussed many times in the past. There are reasons why Devin Nunes filed multiple lawsuits in Virginia despite California almost certainly being the proper venue for his SLAPP suits.
The importance of a federal anti-SLAPP law in addition to good state anti-SLAPP laws. Oliver briefly mentions the lack of a federal anti-SLAPP law but mostly in passing to describe why lawsuits can be filed almost anywhere (highlighting how Bob Murray sued him in West Virginia, despite Oliver being in New York and Murray being in Ohio). But a federal anti-SLAPP law also has some importance beyond jurisdiction shopping for better state laws — including that some courts (incorrectly in my opinion) argue that state ant-SLAPP laws cannot apply in federal court, even in states with anti-SLAPP laws.
Also, that you might not always be happy with who anti-SLAPP laws protect. Indeed, while Oliver talked about President Trump wanting to open up our libel laws to file more SLAPP suits, it might have also been useful to highlight that Trump himself used Texas’ anti-SLAPP law to get the defamation lawsuit filed by Stormy Daniels tossed out.
I’ll also admit to at least a tiny bit of surprise that Rep. Devin Nunes suing a satirical cow on Twitter didn’t make the cut of cases for Oliver to mention, because it felt so deliciously perfect for Oliver to skewer.
Oh well, I guess there will always be time for Oliver to do a follow up show on SLAPP and anti-SLAPP In the future (sorry guys, not leaving you alone just yet!).
* In full disclosure, yes, I did spend a few hours across a few phone calls talking to people from Oliver’s team after they reached out to me saying (I think, jokingly) that they were sick of me constantly writing about how they should do a show about SLAPPs. I have no idea if anything I said to them was even remotely useful but am thrilled to see them cover this issue.
Remember Bob Murray? If you don’t, then I highly recommend you go back and watch this 2017 episode of John Oliver’s show in which he calls out Bob Murray, as a Trump-supporting coal boss, who pretends to be all about “protecting workers,” and who insists that the election of Donald Trump will help save coal miner jobs.
But at least Murray had the Trump administration and all those coal jobs he was going to bring back to save the coal industry, right? Oh, about that. Murray Energy has just declared bankruptcy and is being handed over to investors who are loaning it money to keep the business going.
Robert E. Murray, the U.S. coal baron who pressed the Trump administration to help save America?s struggling miners, placed his company into bankruptcy as demand for the fossil fuel continues to weaken.
Murray Energy Holdings Co. filed for Chapter 11 protection in the U.S. Bankruptcy Court in Columbus, Ohio, to restructure more than $2.7 billion of debt. The miner — the largest privately owned U.S. coal company — reached a restructuring support agreement with lenders who hold more than 60% of a $1.7 billion loan, the company said in a statement. The deal provides a new $350 million loan to keep operations going during the reorganization.
Of course, this shows yet another way in which Oliver’s story about coal jobs was largely true: in that he noted that the decline in coal jobs in the US was a long, ongoing process, having little to do with any particular presidential administration, but the natural end result of a shift in energy sources, combined with new mining techniques and efficiencies.
Perhaps rather than suing his critics (he sued a number of other news organizations as well) and running fundraisers for Trump or appearing on TV as a Trump supporter, Murray should have been focused on actually helping his company and its employees adapt for the future?
Thought the whole Bob Murray / John Oliver story was over with the judge making it clear Murray had no case and preparing to dismiss the whole thing? It appears that Murray cannot let it go. As first spotted by YouTubing lawyer Leonard French, Murray (not his lawyers) sent the judge a letter whining about the whole thing (check out French’s video for a wonderful dramatic reading of the letter):
Or just go check out the letter yourself (kudos to French for getting the document and posting it and doing the dramatic read, shame on the West Virginia courts for not having web-accessible electronic records, and a plea to French to stop putting lame ugly watermarks on public documents). Of course, the reason the letter is public is that (1) parties are not supposed to talk to the judge about their case without telling the other side, and (2) parties are not supposed to communicate with the court directly, rather than via their attorneys. And, thus, the judge added Murray’s letter to the docket in the case, along with a bit of a benchslap:
This date the Court received the attached unsolicited missive from the Plaintiff, Robert E. Murray. As it does not appear Mr. Murray forwarded copies of the same to Defense Counsel, pursuant to Rule 2.9(B) of the West Virginia Rules of Judicial Conduct, the Court has copied and enclosed the correspondence herein and filed the original in the Court’s file.
Mr. Murray’s letter is an improper ex parte communication with the Court, therefore the request to reconsider the Court’s decision cannot and will not be entertained.
The Court respectfully requests Plaintiffs’ Counsel to advise Mr. Murray against future ex parte correspondence which could result in sanctions against the Plaintiffs in this matter.
In other words: don’t do this shit, Bob.
But, of course, the real joy is in Murray’s letter itself, which is absolutely hilarious. It starts off talking about how disappointed he is in the ruling, which, sure, is understandable but it’s totally improper to send a personal letter to the judge about it.
We are deeply disappointed to learn that you intend to dismiss our lawsuit against Home Box Office, Inc., Time Warner Inc., Mr. John Oliver, and others (collectively “Defendants”). We will appeal that decision in due course.
Right. If you (stupidly) decide to appeal this, your lawyers should appeal it in due course. Reaching out to the judge on your own is… not part of that “due course.”
The jobs of our 6,000 coal miners depend on me and my reputation.
Right, then maybe you shouldn’t have done a bunch of things that caused John Oliver and many others to mock you. And those mockable things include suing John Oliver for mocking you in the first place. Because the “harm” to your reputation was caused by you — not John Oliver. There is no right in this country not to have people mock you, and considering how frequently Murray seems to be flag waving about how proud he is to be an American, he might want to take some time to read the First Amendment of the Constitution.
So, if 6,000 coal miner jobs really depend on your reputation (which, also: citation needed), then perhaps the first thing you should do is improve your reputation (pro tip: sending a hilariously dumb letter to the judge in your case does the opposite of improving your reputation).
My name is on the Company, and I am the one who our 140 lenders, our utility customers, the regulators, and the public look to in order to keep these jobs. You have enabled the Defendants to further destroy our miners’ families. We write you today to inform you of the continued personal attack and harassment by the Defendants in this case.
If your lenders and customers bail because John Oliver made fun of you, perhaps there are larger issues at play. And, of course, Murray presents no evidence that any such lender, customer, regulator or anyone else has done anything to the company as a result of Oliver’s story, or the ruling in this case.
As for “continued personal attacks,” again I have to point you to the First Amendment. Personal attacks are protected. Making fun of you is protected. Telling you to “eat shit, Bob” is protected. This isn’t even close. Telling the court that just told you such things are protected that such “personal attacks” have continued is not a compelling argument. It suggests someone is acting like a sore loser without even understanding why he lost.
Just because you feel bad, Bob, it doesn’t make it illegal.
Indeed, just yesterday, the Defendants aired worldwide the enclose attack on the undersigned and our Compay, whereby John Oliver taunted us, once again, stating “Eat Sh-t Bob” and announcing that, once your order is issued, he will “gloat” and he will be “rubbing it in the face of the person that lost over and over again.”
Oooooooooooooh. He taunted you again. I mean, that’s positively Pythonesque, and we all know how King Arthur v. French Knight turned out, don’t we?
This clearly demonstrates the vindictiveness and intentional destruction that the Defendants have caused.
No. It means that you were mocked, had such thin skin that you sued in a case that you quickly lost, and thus were called out on filing a bad case (pretty mildly too, frankly). It doesn’t show “vindictiveness.” You know what shows vindictiveness? Suing a television comedian for reporting on your antics because you don’t like how you were portrayed. And, really, if anyone’s trying to “destroy” anyone, I think that honor must go to the person who sued someone for making fun of them, demanding “general damages,” “special damages,” “punitive damages,” “attorneys’ fees” and “a permanent injunction” against the person who made fun of you.
It shows that these attacks will continue in perpetuity, as a result of your order.
No, not as a result of the order. As a result of you doing silly, mockable things up to and including filing a lawsuit over someone expressing their opinion that things you did were silly and mockable.
I am a dying old man, but our employees will pay for your decision.
Nice baseless appeal to emotion. But, of course, if you’re dying, then how does your earlier statement about how all these employees relying on your reputation for their jobs make sense? Does that mean once you die they’re all out of work? If so, isn’t that a bigger threat to their jobs?
Further, since your ruling, we have been subjected to multiple insulting and threatening email and telephone messages, including these: “BOB, KISS MY A–“‘ “Hey Bob, I guess John Oliver f—ed you in your a–. You are a real evil piece of s–t”; “Consume defecation, Bob.”; “What an old and selfish c–t of a human being. You and your industry are no longer relevant and the entire world knows it.”; “Congratulations on having HBO make you look like a big fat lardass loser in court. Idiot.;” And “Ha ha you fat pig, you lost your lawsuit… burn in hell dr. evil.” This is a very small sampling of the flagrant and extremely damaging personal attacks that we continue to receive on a daily basis.
First off, Bob, thank you for sharing those. We never would have seen them otherwise. I’m assuming that Bob self-censored the dashes in the curse words, which is nice of him. But, really, the “consume defecation, Bob” statement is a really tremendous work of art.
Oh, and Bob, defamation is not “people made fun of me and I’m sad.” It requires false statements of fact made with actual malice. That’s not what’s happening. And you don’t even bother to allege that’s what’s happening, because it isn’t.
Accordingly, we respectfully request that you reconsider your decision to dismiss this lawsuit and allow this case to proceed on the merits.
What merits? There are no merits, which is what the judge has already made clear.
Indeed, this lawsuit is extremely important to our employees, who rely on Murray Energy and me for their continued livelihoods, and to our lenders, customers, and suppliers who depend on our integrity and performance. We cannot sit idly and allow our jobs and livelihoods to be destroyed by the cruel and baseless attacks of these defendants.
Wait. This lawsuit — in which a key part is about John Oliver quoting one of your employees writing “Eat Shit Bob” on a bonus check he was voiding over safety concerns — is “important” to your employees? You sure about that, Bob?
And, again, it’s not the people making fun of you that’s “destroying livelihoods.”
?Other than the fact that Bob Murray?s case against John Oliver is a ridiculous attempt to quell speech by abusing our legal system, it really is the gift that keeps on giving. With the disdain Mr. Murray has shown for our constitution and our legal system, I?m not surprised that he would also improperly try to influence a judge in this way (or with such a hilarious letter). Unfortunately for Bob, everything John Oliver has said on his show was and continues to be protected speech. It is, in fact, legal for anyone to say, ?Consume defecation, Bob.’?
Remember Bob Murray? He’s the Ohio-based coal mining CEO who threatened and then sued John Oliver and HBO over this fun episode of Oliver’s show, Last Week Tonight, which discussed the ridiculousness of our President’s focus on “coal jobs.” However, it also spent a fair bit of time talking about Bob Murray, Murray Energy, and how his actions did not appear to support actual coal miners. A prominent part of the story features the phrase (originally written by a coal miner at Murray Energy as part of the process to void a bonus check) “Eat Shit, Bob.”
As we noted, this was an obvious SLAPP suit with a bunch of ridiculous claims. On top of that, Murray and Murray Energy also sought an injunction silencing Oliver and HBO, which was classic prior restraint. There was some procedural back-and-forth as HBO sought to remove the case to federal court, which failed. State courts can be more of a crap shoot, but this was such an obvious SLAPP suit that it does not appear to have mattered at all.
The Court adopts, with little exception, Defendants’ arguments in
support of their Motion regarding all issues addressed in the same.
This is not the official order, but that should be coming soon. The judge has asked HBO’s lawyers to “prepare and forward a proposed Order, including findings of fact and conclusions of law supporting the Court’s ruling. The same shall be forwarded within 20 days via email in Microsoft Word format to the Court…” and gives his own email address. Admittedly, that feels a little lazy on the part of the judge to basically ask the prevailing party to write his order, but I’m sure HBO’s lawyers are thrilled with the opportunity to make sure it says exactly what they want. I’ve seen parties submit “proposed orders” before — and have seen judge’s sign off on them — but don’t recall seeing a judge so directly ask for such a proposed order.
Either way, it’s a pretty quick and complete win for Oliver and HBO. Of course, if West Virginia actually had an anti-SLAPP law (spoiler alert: it doesn’t), then HBO could also make Murray pay their legal fees (including the fees they’ll charge for drafting the order dismissing the case). But, unfortunately, that’s not the case here. I’m still hoping that this now encourages Oliver to do an episode on anti-SLAPP laws, because it’s a topic that could certainly use his brand of exploration. In the meantime, Oliver did very briefly address the issue on his show last night, saying that now was not the time to discuss or gloat as the dismissal was not yet final (though promising he would address it in the future). Of course, while he was saying that, the human-dressed-in-a-squirrel costume, better known as, Mr. Nutterbutter, held up a sign saying “Eat Shit, Bob!” HBO hasn’t put this clip on its YouTube page for me to embed, but here’s a screenshot:
Second Bob Murray post in a day? Second Bob Murray post in a day! It would appear that the whole ACLU amicus brief side show will remain a side show. The federal district court has sent the case back to state court where it originated. We had written about HBO moving the case to federal court and (correctly) predicted that Murray would likely try to have it sent back to state court, but (incorrectly) predicted that it wouldn’t work.
Just as background: in many cases, defendants want these cases in federal court because of the general belief (and you can debate whether this is accurate or not) that federal court judges are more sophisticated in understanding legal issues than their state court counterparts. This can be a little unfair to state judges (and a little too nice to some federal judges), but the general rule of thumb is if you have a strong case, it’s better to be in federal court. But, this case is moving back to state court over lack of “diversity.” I’ll leave it to lawyers to offer a more complete explanation of diversity, but the short layman’s version is that it’s basically about whether or not the parties are in different states. If they are, you can move to federal court. If they aren’t, you’re in state court. As we explained, HBO/John Oliver had tried to argue that Murray’s inclusion of various West Virginia companies that he owned was a fraudulent attempt to avoid diversity rules, as those companies weren’t really mentioned in Oliver’s piece. Murray and Murray Energy are based in Ohio. Oliver and HBO are based in NY.
However, here the court finds that it was proper for Murray to include the various West Virginia coal mining companies he owns as plaintiffs.
The Plaintiff Corporations in question were, therefore, properly joined, and the case
should be remanded to state court. First, Mr. Murray is the CEO and director of each of the
Plaintiff Corporations and is listed as the controller of the mines owned by those
corporations. Not only is Mr. Murray heavily interrelated with these corporations in a formal
business sense, but a reasonable person who knows of Mr. Murray, especially in West
Virginia or another coal state, would find it nearly impossible to separate Mr. Murray from
his corporations and mines. With such a strong interrelationship between Mr. Murray and
the Plaintiff Corporations, defamatory statements made about Mr. Murray in his
professional capacity may be easily seen as negatively implicating the operation of his
The court admits that the statements by Oliver were about Murray himself, and not his companies, but says the two are so closely identified with one another that it doesn’t matter for this purpose. Also some of the comments Oliver made, while about Murray, were specifically about actions at Murray-owned companies.
The allegedly defamatory statements made about Mr. Murray did refer to him in his
professional capacity. First, the Crandall Canyon Statement refers to a collapse at a mine
Mr. Murray chaired and operated regarding the cause of the collapse. Second, The Black
Lung Statement refers to Mr. Murray in his professional capacity because his decisions
regarding Black Lung regulation would be made as the chairman and operator of the mines.
The alleged ?character assassinations? of Mr. Murray, including the Geriatric Dr. Evil
Statement, refer to Mr. Murray in his capacity as a private individual because they bear no
relation to his professional conduct. However, because the interrelationship between Mr.
Murray and the Plaintiff Corporations is so strong, it is possible that those comments may
defame the corporations if it was determined that the comments discredited the way the
Plaintiff Corporations were operated. The Crandall Canyon statement implies that the
Plaintiff Corporations are run by a dishonest figure, while the Black Lung statement implies
a lack of care for the safety of Mr. Murray?s employees. Even without the character
statements, there would be sufficient cause for the Plaintiff Corporations to have a possible
chance of success in a defamation action based on comments made about Mr. Murray
Random aside: for reasons that I do not understand, in the midst of the above paragraph the court adds a footnote explaining Dr. Evil in much greater details than seems necessary.
1 For those who might not be familiar, Dr. Evil, whose real name is Douglas Evil Powers,
gained notoriety as the villain of the Austin Powers film franchise. He is a parody of Ernst Stavro
Blofeld, a nemesis of James Bond. Along with his cat, Mr. Bigglesworth, a colorful supporting
entourage, and a plethora of secret lairs, Dr. Evil made several attempts at taking over the world,
before ultimately finding redemption by the end of the final film.
First: SPOILER ALERT. And second, I mean, sure. That’s a decent summary (and I must admit I don’t remember Dr. Evil even having a real name, but it’s been a while since I’ve seen the films), but I’m not sure why this footnote is necessary in a straightforward decision to remand. Almost feels like the judge wanted to get in something oddly humorous in such a weird case.
But back to the meat of the ruling. The court says that since the statements could defame the companies in West Virginia and (whoops…) HBO and those West Virginia coal companies are incorporated in Delaware, there’s no diversity jurisdiction to move the case to federal court:
Defendants? primary contention is that the Plaintiff Corporations
were not properly joined because the defamatory statements were not of and concerning
the corporations, giving the corporations no possibility of asserting a right to relief. As
discussed herein, this Court finds that defamatory statements made about an executive of
a business may be sufficient to defame his business where the statement was made about
the individual in his professional capacity and reflects negatively on the operation of the
business. Therefore, the Plaintiff Corporations may have been defamed by statements
made about Mr. Murray, giving them a possibility of success in this action as set forth by
Ashworth, 395 F.Supp.2d at 403. Because the Plaintiff Corporations have this possibility
of success, they were properly joined. This joinder destroys the diversity jurisdiction, which
would have allowed a removal to this Court because the Plaintiff Corporations and Home
Box Office, Inc. are all incorporated in Delaware. Therefore, this action should be remanded
to state court.
All in all, a pretty straightforward decision on remanding — and, of course, it makes no statement on the merits (or lack thereof) of the actual defamation claims. This is probably not a big deal in the overall case, as Oliver/HBO’s argument is much, much stronger when it comes to whether or not his statements were defamatory (as the ACLU so nicely explained in their now-irrelevant amicus brief), but it is at least something of a setback for Oliver and HBO. And, in case you’re wondering, the 4th Circuit (where this is) does not tend to allow remand orders like this to be appealed. So they’re likely stuck in state court. That’s a bit of a hassle for Oliver/HBO, and a bigger annoyance for reporters like myself who do have access to federal court records while state court records in West Virginia are (annoyingly) not so easy to access.
As you likely recall, last week the ACLU of West Virginia asked the federal court handling the very upset coal boss Bob Murray’s defamation lawsuit against comedian John Oliver to allow it to file a hilarious amicus brief explaining (among other things) why it was perfectly legal to say “Eat shit, Bob.” As we noted at the time, it is a very funny filing, but we weren’t sure the court would allow it for a whole variety of reasons. And thus it’s no surprise that Murray’s lawyers are opposing the motion — but we didn’t expect that their opposition would be quite so ridiculous. There are lots of normal arguments they could make, including no need for an amicus brief at this point, or pointing out that the amicus arguments are likely to be simply duplicative of HBO/John Oliver’s arguments, but… Murray’s lawyers went a bit further. Apparently, they don’t want the ACLU weighing in, because it has an opinion.
More troubling, the ACLU fails to disclose its indisputable and disqualifying bias,
notwithstanding that several district courts have noted that impartiality is a key factor to consider
when evaluating whether to permit a non-party to serve as amicus curiae.
But, uh, most amicus briefs have a bias that supports one side or the other. They just add to the overall record, often providing different perspectives on the issues, or offering an alternative way of looking at the issues. Nothing says that amicus briefs need to be totally neutral.
It’s no surprise that Murray’s lawyers attack the “tone” of the ACLU’s brief. Indeed, it wouldn’t surprise me if the tone alone makes the judge reject it. But, even here, Murray’s lawyers’ reasoning is… weird. They argue that the tone shows that the ACLU of West Virginia can’t be an amicus.
From the tone of its brief alone, it is obvious that the ACLU is not a “friend of the court”
offering a dispassionate view of the issues.
And then they claim that the ACLU is only supporting John Oliver because he once, many months ago, urged people to donate to various organizations, some of which may have helped the ACLU:
Moreover, the ACLU’s economic motivations for
assisting Defendants and its prejudice against Plaintiffs are a matter of public record. As for its
economic interests, in November of 2016, Defendant Oliver used “Last Week Tonight with John
Oliver” to encourage viewers to donate to numerous left-leaning organizations, which?not
surprisingly?resulted in an immediate surge of millions of dollars in donations to the ACLU,
among others. See Exhibit A and Exhibit B hereto. Another subsidiary of Defendant Time
Warner furthered the effort to add to the ACLU’s coffers by reporting on Oliver’s call for
donations the next day. See Exhibit C hereto. Consequently, the ACLU’s statement in the
Motion that “no party, party’s counsel, or other person?contributed money intended to fund
preparing or submitting the brief” lacks appropriate and complete disclosure.
Oh come on. The idea that the ACLU is weighing in because John Oliver and other Time Warner properties once encouraged donation is ludicrous.
If I had to guess, I’d say that the court will simply reject the amicus brief as being unnecessary and unwanted at this stage, but the arguments from Murray’s lawyers continue to make me wonder where he found these guys.
So we fully expected the ongoing to lawsuit filed by coal boss Bob Murray against comedian John Oliver to lead to some truly captivating moments (it already has!), but the West Virginia chapter of the ACLU has leapt into the case with wild abandon and made sure that people were paying attention. If you somehow missed it, Oliver did a segment on coal jobs a month and a half ago, with a particular focus on the head of Murray Energy, a character named Bob Murray. Part of the reason for the focus on Murray was that Murray’s lawyers threatened to sue Oliver… and then followed through on the threat with an actual lawsuit that was even sillier than we expected. Last we’d written about it, the two sides were wrangling over Murray demanding a gag order on Oliver, while Oliver tried to remove the case to federal court, rather than state court. As we predicted, Murray’s lawyers have now been trying to move the case back to state court and papers have been flying back and forth about both that and Murray Energy’s renewed desire for a gag order (the original had been filed in state court, and then again in the federal court). We didn’t think any of those filings were interesting enough to write about yet.
But, have no fear, in what had been turning out to be a surprisingly mundane affair so far, the ACLU of West Virginia has decided to leap in and give it about the level of respect that the case deserves — and, yes, as about a dozen people have told me, the ACLU quotes me (yes, me) in its filing. The ACLU has asked the court if it can file an amicus brief, specifically against the gag order Murray is seeking and in favor of dismissing the case and slapping Murray’s lawyers with Rule 11 sanctions for bad legal behavior. It’s… a bit uncommon for anyone to file amicus briefs at the district court level. It’s not unheard of, but not particularly common. And… it also seems a bit early in the process for any amicus to get involved, but the ACLU of West Virginia seems to feel “why the hell not?”
And, frankly, “why the hell not?” appears to be the motivating factor in many of the decisions made by Jamie Lynn Crofts of the ACLU of West Virginia. Indeed, Jamie — who, with this filing has quickly climbed up many rungs on my “favorite 1st Amendment lawyers” list — appears to be channeling her inner John Oliver in much of the filing, as it appears to treat the filing in about the same manner with which Oliver approaches the subjects he satirizes on his show: it’s detailed, thorough, hilarious and razer sharp as it slices and dices its subject. Just take a gander at the table of contents on the proposed amicus brief here (or check out the full filing).
If you somehow can’t see that… well, gosh, figure out some way to see it. It starts out normally enough with the typically expected first few sections, but then we hit section II.B. which is titled: “The Ridiculous Case at Hand.” At that point, my head tilts bit to the side, thinking “that’s not quite what I’m used to seeing, even if I agree…”. And then it’s Section III where Crofts goes all in. Oh, hell, in case a few of you can’t see it above, I’ll just repeat it here in text because, goodness, it’s too wonderful not to:
III. Anyone Can Legally Say “Eat Shit, Bob!”
A. Plaintiffs’ Motion for a Temporary Restraining Order is Ridiculous. Courts Can’t Tell Media Companies How to Report, Bob.
1. All of John Oliver’s Speech Was Protected by the First Amendment. You Can’t Sue People for Being Mean to You, Bob.
2. Plaintiff’s Requested Injunction is Clearly Unconstitutiona. You Can’t Get a Court Order Telling the Press How to Cover Stories, Bob.
So, yeah. That’s… going for it. And you might think “well, that’s enough right there in the table of contents” but the brief itself has plenty of fun too — though it admits “Although this brief pokes fun at the absurdity of this case, the legal issues raised by it are
anything but comical.”
But, the brief sure is comical. It starts off by pointing out Murray’s history of defamation lawsuits against media organizations when Murray doesn’t like their reporting, calling it Murray’s “favorite hobby”:
It is a basic concept of free speech that you do not get to sue media organizations because
you don?t like their coverage. However, this is apparently a difficult concept for Plaintiffs to grasp.
It appears that Bob Murray?s favorite hobby is suing and/or threatening to sue people for making
political statements he disagrees with. See Murray v. Tarley, No. C2-01-693, 2002 WL 484537
(S.D. Ohio Feb. 21, 2002) (dismissing defamation action); Murray v. Knight-Ridder, Inc., No. 02
BE 45, 2004 WL 333250 (Ohio Ct. App. Feb. 18, 2004) (same); Murray v. The
HuffingtonPost.com, Inc., 21 F. Supp. 3d 879 (S.D. Ohio 2014) (same); Murray v. Chagrin Valley
Publishing Co., 25 N.E.3d 1111 (Ohio Ct. App. 2014) (affirming dismissal); Murray v. Moyers,
No. 2:14-CV-02334, 2015 WL 5626509 (S.D. Ohio Sept. 24, 2015) (dismissing defamation
claim); Murray Energy Holdings Co. v. Mergermarket USA, Inc., No. 2:15-CV-2844, 2016 WL
3365422 (S.D. Ohio June 17, 2016) (same); Murray Energy Holdings Co. v. Bloomberg, No. 2:15-
CV-2845 (S.D. Ohio June 17, 2016) (same); Jonathan Peters, A Coal Magnate?s Latest Lawsuit
Was Tossed?But Ohio Can Do More to Defend Free Expression, Columbia Journalism Review
(May 28, 2014), http://archives.cjr.org/united_states_project/murray_energy_defamation_
lawsuits_huffington_post.php). After this long list of losses in Ohio, it appears that Bob Murray
has now decided to try his luck with abusing West Virginia?s court system.
Then the brief summarizes the case at hand, bullet-point style, calling it (accurately!) a “petty list of grievances” and pointing out some of the more absurd claims in the lawsuit which, as many people noted, read more like a political screed than an actual defamation lawsuit. Included in that list of petty grievances, of course, are the following two:
?Defendants [described] Bob Murray as someone who ?looks like a geriatric Dr. Evil? and
arranging for a staff member to dress up in a squirrel costume and deliver the message ?Eat
Shit, Bob!? to Bob Murray.
?[A]fter the live taping, Defendant Oliver exclaimed to the audience that having someone
in a squirrel costume tell Bob Murray to ?Eat Shit? was a ?dream come true.??
Keep that in mind, because it’ll come back again. Oh, and after that second point, there’s actually a little footnote marker, with the footnote reading (I kid you not): “Everyone is allowed to have dreams.” Indeed. And I kinda get the feeling that one of Jamie Lynn Crofts’ dreams was to be able to file a brief like this.
The brief then points out the ridiculousness (as we did in our post) of the idea that Murray “had” to file this lawsuit because after Oliver broadcast his show, Murray had no way to get his side of the story out. Except, well, he did:
Ironically, the Complaint outrageously claims that Defendants ?attacked [Bob Murray] in
a forum in which he had no opportunity to defend himself, and so he has brought this suit to try to
set the record straight.? … In direct contravention to this claim, Plaintiff
Murray Energy sent out a press release about the case the very day it was filed…. Two days later, Bob Murray was on national television calling John Oliver a
?radical elitist.? Matthew Wisner, Robert Murray on John Oliver: Radical Elitists? Broadcast
Operative, FOX NEWS, http://www.foxbusiness.com/features/2017/06/23/robert-murray-on-johnoliver-
radical-elitists-broadcast-operative.html. No other opportunity to defend himself, indeed.
Sarcasm in a legal brief? Lovely.
And… then we get to me being quoted. I was particularly proud of this line in my earlier post, so I’m glad someone noticed it, even if she calls us TECH DIRT rather than just plain old Techdirt.
The Complaint also interestingly claims that ?nothing has ever stressed [Bob Murray] more
than [John Oliver?s] vicious and untruthful attack.? … As one media
outlet asked, ?[I]s he really saying that a late night British comedian on a premium channel has
caused him more stress than the time that one of his mines collapsed and killed a group of his
employees? If so . . . that?s . . . weird.? Mike Masnick, Bob Murray?s Lawsuit Against John Oliver
Is Even Sillier Than We Expected, TECH DIRT (June 23, 2017),
Anyway, onto Section III as highlited in the Table of Contents above, starting with “Anyone Can Legally Say ‘Eat Shit, Bob!'”
This case is beyond meritless. It is offensive to the very ideals of free speech embodied in
the First Amendment. The fact that Plaintiffs filed this case is ridiculous enough; but, to pour
gasoline on the fire, plaintiffs? counsel has also filed a motion asking the court to make John Oliver
not say mean things about him anymore…. It is frankly shocking that
Plaintiffs were able to find attorneys willing to file a lawsuit that is so obviously unconstitutional.
Great start… but then it gets even better:
It is apt that one of Plaintiffs? objections to the show is about a human-sized squirrell named
Mr. Nutterbutter, because this case is nuts. Which also begs the question: is Mr. Nutterbutter one
of the 50 Doe Defendants included in this action?
I cannot stop laughing. That two paragraph section is just… perfect. Dismissive first paragraph. Second paragraph starts off with a nice burn tying Mr. Nutterbutter to “nuts” but then, the second sentence is what makes this a piece of art.
And we’re not done yet. After a moderately more conventional discussion on why you can’t sue people just for being mean to you, along with an explanation of the nature of satire, Crofts spends a bit of time on the allegation that it’s somehow defamatory to compare Murray to Dr. Evil from the Austin Powers movies, noting:
And with regard to the Dr. Evil remark, it should
be remembered that truth is an absolute defense to a claim of defamation. E.g. Syl. Pt. 1, Crump
v. Beckley Newspapers, Inc., 173 W. Va. 699, 699 (1984).
Um. Damn. Yes, that image is in the filing right after claiming that truth is an absolute defense. And… not to be missed, right after the “with regard to the Dr. Evil remark” and right under that image, there’s this amazing footnote:
It should be noted that the very mean comparison arose from both a striking physical resemblance between the two
characters and a statement by Plaintiff?s General Counsel with an uncanny similarity to statements made by a more
youthful Dr. Evil. Compare Coal Operator Sues Beacon Journal Over Portrayal of Him in Article, ATHENS NEWS,
(Jan. 29, 2001), https://www.athensnews.com/news/local/coal-operator-sues-beacon-journal-over-portrayal-of-himin/
article_24549e9b-de35-5b4c-b3c6-2ad29b33f694.html (Plaintiff?s General Counsel noting that although he could
not legally demand one billion dollars, the figure did reflect the potential damages of the article that gave rise to that
suit?this can reasonably be interpreted to mean Plaintiff?s General Counsel wanted to demand one billion dollars);
with Pierre Pavia, Dr Evil in 1 Million Dollars, YOUTUBE, (Jul 11, 2008),
https://www.youtube.com/watch?v=cKKHSAE1gIs (a young . . . er Dr. Evil demanding ?one million dollars,? ?one
hundred billion dollars,? and ?one billion gajillion fafillion shabadoodalooyim[inaudible]million yen?).
And, yes, that link does go to a nice montage of Dr. Evil’s demands.
In discussing Murray’s request for a gag order, Crofts points out:
Bob Murray thinks John Oliver was mean to him, and he doesn?t want him to be mean
again. While that is sad for Bob Murray, it is unconstitutional for a court to order such relief.
Oh, and more legal filing comedy gold here:
Plaintiffs argue that Defendants will use their ?unique powers? to ?access . . . millions of
West Virginians, to bias the potential jurors who will determine their fate.? Pl?s Mem. at 3. (These
special powers must include magic, as West Virginia has under 2 million residents.)
It also notes that Oliver, HBO and the other defendants have all been silent about the case already… while Murray has been appearing on TV and issuing press releases about it, raising questions about why Murray is so desperate to get a gag order on Oliver.
This is… gold. Of course, it’s unclear if the court will care. Again, amicus briefs are fairly rare in district courts, and quite rare this early in the proceeding, especially when there’s nothing new or unique about the case. It’s not even clear if the court will officially allow the brief. Indeed, some district courts actually actively dislike amicus briefs — and at least some judges might not appreciate the joking tone here (even if we do). Perhaps Crofts and the ACLU of West Virginia figured that even if the judge isn’t a fan, “why the hell not” and ran with it. While the court may not appreciate it, I’m sure plenty of folks here on Techdirt will.
Oh, and in case you were wondering: did Crofts have any assistance in writing the brief, she has revealed her assistant on Twitter:
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?
Yesterday we wrote about coal company Murray Energy and its CEO, Bob Murray, actually following through and suing John Oliver — something that Murray’s lawyers had threatened to do when Oliver and his team had reached out to Murray for a piece Oliver was doing on coal. The result of being threatened was that Oliver spent nearly half of the 24 minute segment on Murray, carefully detailing some of Murray’s history and positions. If you missed it, watch it again here:
Anyway, when we wrote about the case yesterday, we noted that we had to do it based solely on the reporting of the Daily Beast, as they broke the story and — for reasons I still don’t understand — refused to post the actual complaint. However, now we’ve obtained the full complaint and can dig in on how incredibly silly it is. It appears to be a quintessential SLAPP lawsuit, where the entire point is not to bring a legitimate cause of action, but to chill free speech that criticizes Bob Murray. As Ken “Popehat” White notes, it’s “lawsuit as theater” and “an unapologetic political screed” — that is, apparently designed to rile people up, rather than to present a reasonable legal argument.
Let’s dig in. It certainly starts out on a high note with the rhetoric:
On June 18, 2017, Defendants executed a meticulously planned attempt to assassinate the character and reputation of Mr. Robert E. Murray and his companies, including Murray Energy Corporation and those in West Virginia, on a world stage. They did so for their personal financial gain by knowingly broadcasting false, injurious, and defamatory comments to HBO’s approximately 134 million paying subscribers, while also knowing that their malicious broadcast would be repeated to countless more individuals through various outlets (including other media owned by certain Defendants.
I’ve now watched the video four times and I fail to see anywhere that it goes after “those in West Virginia.” Indeed, it’s actually quite sympathetic to the plight of miners and former miners in the area who have run into problems or lost their jobs. The only people that it holds out as problematic… are the CEOs of various mining companies and the President of the United States. And even if Murray’s reputation is mocked in the piece, as long as there aren’t false statements of fact, presented with knowledge of their falsity or reckless disregard for the truth, it’s all perfectly legal. Making Bob Murray look foolish or mean isn’t illegal, as long as it’s based on statements of opinion or those backed up with evidence.
But, Murray’s lawyers appear to suggest that because Murray is in poor health, that somehow makes this entirely different. It’s… an odd sympathy play in a lawsuit:
They did this to a man who needs a lung transplant, a man who does not expect to live to see the end of this case. They attacked him in a forum in which he had no opportunity to defend himself, and so he has brought this suit to try to set the record straight.
The health stuff is pure “theater” as Ken noted. The “no opportunity to defend” himself is weird, because I thought Republicans like Murray were completely 100% against a “fairness doctrine” that required equal time for political opponents (which is the right position to take). But, even beyond that, the idea that Murray had no choice but to file a lawsuit to defend himself or to set the record straight is laughable. As Oliver’s report clearly showed, Murray is regularly on TV and could easily get a message onto the various TV news programs that have him on as a guest. And, either way (again) that’s got absolutely nothing to do with defamation law and how it works.
The sob story continues:
Worse yet, Defendants employed techniques designed solely to harass and embarrass Plaintiffs, including Mr. Murray, a seventy-seven year old citizen in ill health and dependent on an oxygen tank for survival, who, despite the foregoing, continuously devotes his life, including by working seven days each week, to save the jobs and better the lives of the thousands of coal miners that he employs in West Virginia and elsewhere. Defendants childishly demeaned and disparaged Mr. Murray and his companies, made jokes about Mr. Murray’s age, health, and appearance, made light of a tragic mining incident, broadcasted false statements, and incited television and internet viewers to do harm to Mr. Murray and his companies, all before a worldwide audience–including the thousands of people that work for and do business with Mr. Murray and his companies in West Virginia. In fact, medical doctors have informed Mr. Murray that he should stop working because the stress is shortening his life. Mr. Murray must, however, continue working because of all those individuals who rely on him. But nothing has ever stressed him more than this vicious and untruthful attack.
Bravo! Quite a performance there. This seems clearly targeted towards pulling at the heartstrings of folks in West Virginia, but, again seems to have little to nothing to do with the actual law. Again, Murray’s health is not an issue here — and if this has caused him more stress than anything else in his life ever, then Mr. Murray has led an incredibly low stress life. Is he really saying that a late night British comedian on a premium channel has caused him more stress than the time that one of his mines collapsed and killed a group of his employees? If so… that’s… weird. Separately, making fun of someone’s age, health or appearance (and I don’t recall any actual jokes about his age or health…) is, again, not defamation. It’s sort of protected by the First Amendment. The only thing that could be defamation is “false statements” and notice how the lawsuit seems to be playing up everything else, rather than that?
When you start to dig into the actual meat of the lawsuit… there’s almost nothing there. It complains that Oliver’s staff may have contacted Murray Energy under false pretenses, saying that they “were under the false impression that Defendants would use this supplied information to accurately and responsibly broadcast the facts and circumstances regarding the topics,” but that, again, makes little difference to the question of defamation. Just because a news company doesn’t present your version of the events exactly as you want it presented, doesn’t make it defamation. Not by any stretch of the imagination.
The lawsuit does provide plenty of additional bits of information concerning the Crandall Canyon mine collapse and how Murray reacted to it. And all of that is perhaps interesting, but again, none of it requires Oliver to portray the story in the way that Murray Energy likes. And, again, if you go back and review the actual story that Oliver did, he does not contradict any of the factual claims laid out by Murray’s lawyers. Rather, he highlights the stories of miners or families of miners who were impacted by the collapse and were not happy with how Murray responded. The crux of the argument on Murray’s side is “but we tried real hard.” And, great. But highlighting how others felt about the effort and actions is not defamation. It’s presenting other viewpoints.
The only possible “factual” point where there could be some controversy is over whether or not the mine collapsed due to an earthquake, as Murray has insisted since the day of the collapse itself. Oliver pointed to the US government report on the incident put together by the Mine Safety and Health Administration (MSHA), a part of the US Department of Labor. That report concluded: “The August 6 catastrophic accident was the result of an inadequate mine design,” and, on top of it: “MSHA found no evidence that a naturally occurring earthquake caused the collapse on August 6.”
In the lawsuit, Murray’s evidence that this is false seems to focus on semantics and making fun of the MSHA inspectors (you know they’re making fun of them because it puts “experts” in quote marks):
The Federal Mine Safety and Health Administration’s report regarding the collapse (the “MSHA Report”) contained multiple concessions that a sudden change in stresses due to a “slip along a joint” or “joint slip in the overburden,” which is very similar to the United States Geological Survey’s definition of an “earthquake” (i.e., “both sudden slip on a fault, and the resulting ground shaking and radiated seismic energy caused by the slip”), “could have been a factor in triggering the collapse” and was one of the “likely candidates” for triggering the collapse, but MSHA and its “experts” chose not to analyze the seismic data of the triggering event and instead focused on the secondary collapse, which was a disservice to the lost miners, their families and the truth.
Studies have shown that the Mine collapse was a seismic event originating in the Joe’s Valley Fault Zone. More specifically, these studies indicated that the triggering event for the seismic disturbance, which was not consistent with normal mining-induced seismicity resulting in the collapse, occurred on a subsidiary fault parallel to the Joe’s Valley Fault. This is a more technical manner of stating that the collapse was caused by what many would characterize as an earthquake.
So that first paragraph is nonsense. It’s not “actual malice” if you have clear evidence to back up your statements, and the official MSHA report sure seems like pretty good evidence to support that Oliver and his team believed what Oliver said was true. The fact that Murray doesn’t like the MSHA “experts” doesn’t magically make using their report “defamation.” Second, notice that all of the talk about the earthquake comes with qualifying language: “very similar to… definition of an ‘earthquake'”, “what many would characterize as an earthquake.” Even beyond the other stuff, this further undermines any defamation claim over the one sort of “fact” the lawsuit focuses on: if there’s a dispute over whether or not what happened was truly an earthquake, then choosing a side in that dispute is not defamation. It’s an opinion. That’s protected.
Mr. Murray and his companies warned Defendants to cease and desist from a broadcast of defamatory comments or any misguided attempt at humor regarding the tragic mine collapse and loss of life, which Plaintiffs believed would be cruel and heartless.
So, uh, earlier in the complaint, Murray’s lawyers argue that they believed that when Oliver and his team reached out they were ordinary journalists, claiming that they reached out “under the guise of responsible and ethical journalism.” And, yet, here they admit that that they knew that he’s a comedian who regularly satirizes people and companies, thus they didn’t want to see a humorous take on the situation. Also, there’s no law against “misguided” humor (and, uh, many folks found the humor to be quite on target). Finally, there is nothing in defamation law about it being illegal for you to have “cruel and heartless” comedy. And, in actuality, Oliver’s piece was neither cruel, nor heartless. Many would likely argue that it was incredibly sympathetic and empathetic to the plight of struggling coal miners, who are facing a radical transformation of their industry.
The complaint, once again, then hits on the idea that because Oliver’s story didn’t represent the collapse the way Bob Murray wanted it portrayed, that’s defamation. That’s… not how it works. It’s not how any of this works.
In the ensuing broadcast, Defendants deliberately omitted the facts Plaintiffs provided regarding the Crandall Canyon Mine incident. There was no mention of the efforts Mr. Murray personally made to save the trapped miners. Defendant Oliver did not tell his audience that Mr. Murray arrived at the Crandall Canyon Mine in Utah within four hours of the collapse. Nor did Defendant Oliver say anything about the twenty-eight straight days Mr. Murray then spent on that mountain overseeing the massive rescue efforts, and administering to the families. Nor did he mention that Mr. Murray personally led the rescue efforts when rescue workers were injured and killed in a subsequent event ten days after the initial seismic event, in fact pulling rescue workers from the debris and attending to their injuries with his own hands and administering to them.
That’s nice and all… but it’s totally meaningless. Not reporting those things is not defamation. Murray has every right to then put out a statement, or go on TV, or get another reporter to tell these stories. But in a lawsuit? Just because the story is about Bob Murray doesn’t mean that Bob Murray gets editorial control. That’s not how it works, Bob.
Then it gets even more bizarre:
Instead, presumably to boost ratings, line their pockets with profits, and advance the show’s anti-coal agenda, Defendant Oliver intentionally, falsely, and outrageously conveyed that Mr. Murray has no evidence to support his statements that an earthquake caused the tragedy that took the lives of Murray Energy miners during the course of their work for the organization.
Rather than fairly characterizing the evidence that he had in his possession on the subject, Defendant Oliver instead quoted an out-of-context snippet from a single report stating that there was “no evidence that a naturally occurring earthquake caused the collapse.” Because Defendant Oliver omitted any mention of the other reports he was aware of that evidence that an earthquake caused the collapse, as Mr. Murray correctly stated following the collapse, Defendant Oliver’s presentation intentionally and falsely implied that there is no such evidence.
Yeah. So, about that. The above just isn’t true. Watch the video again. Oliver directly says that Murray relies on other evidence to support the earthquake claim (“to this day, Murray says the evidence proves that he was correct.”) Then Oliver notes (correctly and accurately) that the government report says otherwise: “that was decidedly not the conclusion of the government’s investigation.” So, for Murray’s lawyers to argue that Oliver ignored the evidence on the other side is… simply not accurate. Oliver notes that Murray points to evidence on his side, but he then points to the government’s conclusions. Yes, Oliver makes it clear he believes the government’s report, but, um, it’s the US government. You’re not going to win a defamation lawsuit by arguing that relying on the conclusions of a federal government investigation is defamation, just because you have “other evidence” that you claim disagrees with the government’s evidence.
Worse still, as discussed, Defendant Oliver’s Senior News Producer, Defendant Wilson, obtained from Plaintiffs detailed information evidencing an earthquake or earthquake-like event did trigger and cause the Crandall Canyon Mine collapse.
Note the immediate caveats of an “earthquake-like event.” Again, this undermines the argument that saying a government report concluded it wasn’t an earthquake is somehow defamation.
They also did this despite knowing that determinations of causation are vastly complex and can take years before a reliable conclusion can be reached.
So, uh, yeah. About that. This is true, but remember, part of the joke here, from Oliver, was that Murray declared definitively in a press conference the day of the collapse that it was clearly an earthquake that caused this and not the company itself. So, if Murray’s own lawyers are now admitting that this is vastly complex and “can take years,” it sort of reinforces the key point that Oliver was making, that Murray himself immediately jumped to the conclusion that it was an earthquake and not his fault, when that was not at all clearly know. This filing seems to do more to undermine Murray than Oliver.
Defendants also aired a clip of congressional testimony of a relative of a former employee of Murray Energy that appeared to be dissatisfied with Mr. Murray’s handling of the Crandall Canyon Mine collapse, when upon information and belief the statements of that employee were not his own, but were instead scripted by adverse counsel in a lawsuit against Murray Energy and given to the employee to further the agenda of such counsel and their clients.
Right, so this is similar to the whole dismissing the MSHA report by calling its experts “experts.” Oliver accurately reported what this relative said. Who wrote it is immaterial. If what that relative said was defamatory, then Murray could go after that relative. But there’s no defamation in Oliver playing a clip of Congressional testimony. Again, that’s not how it works.
There’s a lot more in the lawsuit, which you can read below, but it pretty much all falls into the same issues as the parts described above. It’s no surprise that, looking over the website of Murray’s lawyers, they don’t list defamation as a specialty, but tend to focus on personal injury. There’s a lot of complaining and theatricality, but very little of substance, and nothing that I can see that comes anywhere close to defamation. And that makes this a pretty clear SLAPP suit, designed to chill the speech not just of Oliver and HBO, but of any other reporters looking to cover Bob Murray and Murray Energy. This is the nature of chilling effects created by SLAPP suits. They try to punish people for actually speaking out and sharing their opinion while scaring off others from doing the same.
Once again: this is an example of why we need much stronger anti-SLAPP laws at the state and federal level. Laws that require plaintiffs to pay up for filing bogus SLAPP suits, as a deterrent. And, again, one hopes that now that he’s facing such a lawsuit (which, as I’ve said from personal experience is no fun at all, no matter how sure you are that you’re in the right), John Oliver will become as outspoken in favor of anti-SLAPP laws as he’s been about other important issues.
This one is clearly no surprise at all, given that — as we wrote about just a couple days ago — Bob Murray and his company Murray Energy were threatening John Oliver with a SLAPP suit if Oliver’s satirical report about the coal industry was used to “defame, harass, or otherwise injure Mr. Murray or Murray Energy.” Of course, Oliver’s report did no such thing… but, alas, Murray has now sued Oliver, HBO, Time Warner… and the writers of the story. The lawsuit was filed in West Virginia state court. In my original post, I suggested it might be filed in Ohio, where Murray Energy is headquartered, but it does also have operations in West Virginia as well. Either way, as with Ohio, West Virginia is a state with no anti-SLAPP law.
Unfortunately, I don’t have the full lawsuit. The Daily Beast, which first wrote about the case has chosen — for whatever reason — not to post the document, which is pretty lame. However, having watched the John Oliver piece multiple times, I can’t see how any of it comes anywhere even remotely near defamatory. It falls into a variety of clearly protected categories, including opinion, satire and rhetorical hyperbole. The idea that there were materially false and defamatory statements that were put forth knowing they were false (or with reckless disregard for the truth) is laughable. There is no way that this lawsuit succeeds — but, as we’ve been pointing out — that’s not really the point of most of these kinds of lawsuits. SLAPP lawsuits are designed to create a chill on free speech, by making that speech costly. Obviously, HBO/Time Warner can afford this, and have access to great lawyers, so there’s almost no chance that Murray wins the lawsuit, but that’s not the point. It will still cost money and lots of time to deal with the lawsuit and that’s a hassle.
Murray Energy put out a bizarre statement that does little to support the idea that Murray has an actual case here:
The false and defamatory statements in this broadcast severely and destructively impact Mr. Murray, and all of Murray Energy, particularly our Mines in the State of West Virginia, where we are the largest coal mining employer in the State, as well as coal mining itself, one of the primary foundations of that State’s economy.
Murray Energy filed this lawsuit, in part, in order to protect these lives and family livelihoods from the further damage by people who do not want to see coal mined, and want all of those lives destroyed, and will stop at nothing, including lying and fabrications, to accomplish their goal.
This is… laughable if you actually watched the Oliver segment, which is clearly standing up for the workers in these mines, but pointing out how the interests of the bosses — such as Bob Murray — are often different than the workers, and highlights a few examples of employees of Murray Energy not appreciating the way Bob Murray ran the company and treated the employees. Similarly, disparaging coal mining itself (which the Oliver report really doesn’t even do) is not, in any way, defamatory.
The Daily Beast — while not posting the complaint — did get Ken “Popehat” White’s opinion on it:
?Overall I?d say it appears frivolous and vexatious,? he said. ?Any core of merit is buried in nonsense.?
?It does arguably cite one or two statements (like the bit about earthquakes) that could possibly be defamatory, since they involve fact,? he said. ?But for the most part the section describing the purportedly false statements is rambling and semi-coherent, mixing fact with opinion and insult.?
As White notes, the defendants will likely get the case removed to federal court, which should be fairly easy, as there’s diversity with most or all of the defendants being in New York, not West Virginia. Of course, it also depends which federal court they remove the case to — but in some sense, it won’t matter at all for anti-SLAPP purposes, since New York (the most likely other destination) has a very weak anti-SLAPP law and it would be tough to apply it here.
So, once again, we can only hope that out of this stupid situation, John Oliver will now become a proponent of much stronger anti-SLAPP laws. If his staff is looking into that issue, I’d be happy to point them to lots and lots of useful experts and resources on anti-SLAPP laws. It’s a big issue (that we’re living through ourselves) that needs more attention — the kind of attention that John Oliver is now uniquely positioned to help bring to it.