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.
Murray then, famously, sued John Oliver and HBO in what was obviously a totally ridiculous SLAPP suit. He even tried to get a gag order on Oliver and HBO, to stop him from even talking about the lawsuit. The lawsuit did not go well for Bob Murray, though Murray took the somewhat amazing step of directly sending the judge a whiny letter about how people are being mean to him. The judge was not happy (parties in a case are certainly not supposed to be reaching out to the judges in their case directly).
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?
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.
On Friday, the judge sent a letter to the various parties which I would say is the judicial equivalent of telling Bob and his lawyers to "Eat Shit." The letter makes it clear that the judge is going to dismiss the case, and agrees entirely with the arguments HBO made in its motion to dismiss:
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
corporations.
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.
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),
I'm blushing.
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:
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.
This past weekend on John Oliver's Last Week Tonight, he took on the issue of "coal" and some politicians' obsession with coal jobs as the only true "American" jobs. The whole segment is interesting, but obviously not the kind of thing we'd normally write up. What we do frequently write about, however, is censorious threats, often from wealthy execs, designed to try to silence people from commenting on issues regarding those doing the threatening. And, it appears that's exactly what happened with coal exec Bob Murray, the CEO of Murray Energy, when he found out that John Oliver was doing a segment that included some bits about Murray.
I recommend watching the whole thing, but the parts about Murray include a brief bit around 4:45 in the video and then a much longer section starting around 12:30 in the video, where Oliver notes:
I'm going to need to be careful here, because when we contacted Murray Energy for this piece, they sent us a letter instructing us to "cease and desist from any effort to defame, harass, or otherwise injure Mr. Murray or Murray Energy" and telling us that "failure to do so will result in immediate litigation..."
Oliver notes that this is the first cease & desist his show has received (which he agrees is incredible). Oliver also points out that Murray has, in fact, been known to follow through on these threats -- suing the NY Times, a contributor to the Huffington Post and more. Many of these lawsuits appear to be fairly classic SLAPP suits, in which the lawsuits against reporters and journalism outfits are designed to try to silence them. Thankfully, Oliver and HBO have good lawyers who clearly know Oliver's rights to talk about, criticize and satirize Murray -- and Oliver then spends the next ten or so minutes doing so (hilariously), even to the point of involving a talking squirrel (you need to watch it yourself to understand why it makes sense). He also notes this at the end:
Bob Murray, I didn't really plan for so much of this piece to be about you, but you kinda forced my hand on that one. And I know you're probably going to sue me over this. But, you know what? I stand by everything I said.
Kudos to Oliver for taking a principled stand here for free speech on an important issue. Of course, Oliver has HBO and its lawyers to back him up, but it sure would be a hell of a lot easier if we had strong anti-SLAPP laws to protect him. So, once again, this is why we need a strong federal anti-SLAPP law, not to mention better state-level anti-SLAPP laws. Bob Murray appears to be based in Ohio, which (lucky him) appears to have no anti-SLAPP law, while I believe John Oliver is in NY, which has an incredibly weak anti-SLAPP law.
Perhaps, sometime soon, John Oliver can take on the need for stronger anti-SLAPP laws.
