ACLU To Court: It's Legal To Tell Bob To Eat Shit

from the eat-shit,-bob dept

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:

Filed Under: bob murray, defamation, eat shit bob, first amendment, free speech, jamie lynn crofts, john oliver, satire
Companies: aclu, murray energy

Senator Wyden Argues FCC Is Either Incompetent Or Lying About Alleged DDoS Attack

from the derailing-the-John-Oliver-effect dept

Last week we noted how the FCC was acting incredibly suspicious in regards to its May claim that a DDOS attack, not annoyed John Oliver viewers, brought down the agency's website shortly after Oliver's latest rant on net neutrality. Despite pressure from journalists and several Senators, the FCC is simply refusing to release any data providing the existence of the attack, resulting in many media outlets not so subtly implying that the agency was lying:

"The FCC’s refusal to produce records of any true relevance reflects pressure from the agency’s upper echelon to limit the disclosure of information about the incident to a handful of carefully crafted public statements...It would be hard for a government agency to do more to give off the impression that it was engaged in a cover up. That’s troubling given the rise of questions over the FCC’s integrity.

As we noted last week, there are really only two options here. One, the FCC was attacked coincidentally at the same time John Oliver's program aired, it just failed to do any meaningful written analysis of the attack, and has zero interest in being transparent about it. Two, the FCC made up the attack completely to try to deflate all the talk about the "John Oliver effect" in the press, a misguided continuation of the agency's clear desire to downplay the massive public opposition to Pai's plan to kill net neutrality.

Based on the FCC's other recent behaviors in regards to ignoring comment fraud to this same purpose, it's fairly obvious the latter is a very real possibility. But with the FCC refusing to comply to FOIA requests, it's going to take some notable outside pressure to get to the truth. That's not going to be easy given that despite broad bipartisan support for the rules, ISPs have successfully convinced the public this is a partisan issue, which helps them stall meaningful discourse by bogging the entire process down in thinking-optional partisan patty cake.

Under the din of this dysfunction, Senator Ron Wyden was quick to highlight at the hearing that the FCC doesn't look particularly good here regardless of your political leaning:

"Senator Ron Wyden...stated in an email to Gizmodo that the agency’s response to Gizmodo’s FOIA request raised "legitimate questions about whether the agency is being truthful when it claims a DDoS attack knocked its commenting system offline."

The Oregon senator said it was critical that the agency produce evidence of the attack, if only so independent experts could verify and learn something from it. He continued: "If the FCC did suffer a DDoS attack and yet created no written materials about it, that would be deeply irresponsible and cast doubt on how the FCC could possibly prevent future attacks. On the other hand, if FCC is playing word games to avoid responding to FOIA requests, it would clearly violate Chairman Ajit Pai’s pledge to increase transparency at the FCC."

The FCC's contention is that for fifteen hours after the attack, nobody sent an e-mail, wrote a memo, or documented this supposed attack in any fashion. And again, this lack of transparency about any of this is in stark contrast to FCC boss Ajit Pai's repeated, breathless claims that he was going to bring a new wave of transparency to the agency. This lack of transparency will become increasingly stark as the agency continues to gut popular, meaningful consumer protections -- leaving the only thing standing between you and your carrier's bullshit an unelected bureaucrat that believes anti-competitive behavior in the telecom sector isn't a real problem.

Filed Under: ajit pai, ddos, fcc, john oliver, lies, ron wyden

FCC Won't Release Data To Support Its Claim A DDOS Attack, Not John Oliver, Brought Down The Agency's Website

from the not-so-transparent-after-all dept

You might recall that when HBO comedian John Oliver originally addressed net neutrality on his show in 2014, the FCC website crashed under the load of concerned consumers eager to support the creation of real net neutrality rules. When Oliver revisited the topic last May to discuss FCC boss Ajit Pai's myopic plan to kill those same rules, the FCC website crashed under the load a second time. Both instances did a fantastic job highlighting how satire often tops traditional journalism in driving interest toward what can often be rather wonky tech policy issues.

But then something weird happened. In the midst of all the attention Oliver was receiving for his segment, the FCC issued a statement (pdf) by FCC Chief Information Officer David Bray, claiming that comprehensive FCC "analysis" indicated that it was a malicious DDoS attack, not angry net neutrality supporters, that brought the agency's website to its knees:

"Beginning on Sunday night at midnight, our analysis reveals that the FCC was subject to multiple distributed denial-of-service attacks (DDos). These were deliberate attempts by external actors to bombard the FCC’s comment system with a high amount of traffic to our commercial cloud host. These actors were not attempting to file comments themselves; rather they made it difficult for legitimate commenters to access and file with the FCC."

But this claim that a DDoS disabled the FCC website at coincidentally the exact same time Oliver's segment was airing raised a few eyebrows among security experts, who noted they saw none of the usual online indicators pointing to a DDoS attack, nor any evidence of an attack via publicly-available logs. Security analysts noted the FCC provided no evidence to support their claim of an attack, and the agency has consistently and repeatedly refused to offer any additional hard detail, despite being prodded by several Senators on the subject.

Hoping to glean a little more information, Gizmodo recently filed a FOIA request asking for server logs or documents offering more insight into this supposed attack. What they found is that the FCC never conducted said "analysis" of the attack in the first place:

"The FCC now tells Gizmodo, however, that it holds no records of such an analysis ever being performed on its public comment system; the agency claims that while its IT staff observed a cyberattack taking place, those observations “did not result in written documentation."

Gizmodo's FOIA request asked for "all communications between employees in the offices of Chairman Ajit Pai and Commissioner Michael O’Rielly" concerning the alleged cyberattack, as well as copies of "any records related to the FCC 'analysis' (cited in Dr. Bray’s statement) that concluded a DDoS attack had taken place." What they got instead was 17 pages of heavy redactions and nonsense (including several user complaints about what Pai's been up to) and a rotating crop of excuses for why the FCC couldn't be more transparent about the alleged attack:

"The agency cited a variety of reasons for why it was refusing to release 209 documents related to the purported DDoS attack. Some of the records, it says, contain “trade secrets and commercial or financial information” which it deems “privileged or confidential,” citing the Trade Secrets Act. Other documents were withheld in an effort to “prevent injury to the quality of agency decisions,” citing a FOIA exemption that typically protects attorney-client communications but also extends to documents that reflect “advisory opinions, recommendations and deliberations” as part of the government’s decision-making processes."

It didn't take long for news outlets to highlight the FCC's refusal to be clear about what happened, prompting the agency to e-mail this press release to reporters, deriding said reports as "completely irresponsible":

"Media reports claiming that the FCC lacks written documentation of its analysis of the May 7-8 non-traditional DDoS attack that took place against our electronic comment filing system are categorically false. In its FOIA request, Gizmodo requested records related to the FCC analysis cited in Dr. David Bray’s May 8 public statement about this attack. Given that the Commission’s IT professionals were in the midst of addressing the attack on May 8, that analysis was not reduced to writing. However, subsequent analysis, once the incident had concluded, was put in writing. Indeed, analysis was made public in response to a request from Capitol Hill.

“Moreover, the FCC has never stated that it lacks any documentation of this DDoS attack itself. And news reports claiming that the Commission has said this are without any basis and completely irresponsible. In fact, we have voluminous documentation of this attack in the form of logs collected by our commercial cloud partners."

But while the FCC's statement proclaims the agency has oodles of documentation detailing the supposed DDoS (it just doesn't want to reveal it), that's the precise opposite of what the agency is telling reporters that have filed FOIA requests to get a hold of it:

So it seems like there's two options here. One is that there really was some kind of non-traditional DDoS attack, but the agency failed to conduct a detailed written analysis of what caused it, and despite boss Ajit Pai's breathless dedication to transparency, has zero interest in being up front about it.

The other possibility is the entire attack narrative was poorly-constructed bullshit, feebly designed to try and deflate the "John Oliver effect" in the media and downplay the volume of consumers pissed off about what Ajit Pai is up to. And now that Senators and reporters are pushing harder for actual evidence, the FCC is having to engage in some comical tap dancing to obfuscate the fact it made up a DDOS attack as a lame (and ineffective) PR ploy.

The former's certainly possible, but the latter's also in character. Either way, expect this and the agency's willful disregard of comment proceeding fraud to pop up in the inevitable lawsuits awaiting Ajit Pai when he rams through the final net neutrality killing vote later this year.

Filed Under: ajit pai, comments, ddos, fcc, john oliver, net neutrality

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

from the hey-bob dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Filed Under: bob murray, defamation, first amendment, free speech, gag order, john oliver, prior restraint

Bob Murray's Lawsuit Against John Oliver Is Even Sillier Than We Expected

from the slappity-slapp-slapp-slapp dept

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.

Filed Under: anti-slapp, bob murray, coal mining, crandall canyon mine, defamation, free speech, john oliver, mining, slapp, west virginia
Companies: hbo, murray energy, time warner

Coal Boss Files Total SLAPP Suit Against John Oliver & HBO

from the let's-talk-anti-slapp,-john dept

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.

Filed Under: anti-slapp, bob murray, coal, defamation, free speech, john oliver, slapp
Companies: hbo, murray energy, time warner

Coal CEO Threatens John Oliver With A SLAPP Suit

from the not-a-good-idea dept

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.

Filed Under: anti-slapp, bob murray, coal, first amendment, free speech, john oliver, mockery, reporting, satire, slapp
Companies: hbo, murray energy

The FCC Spent Last Week Trying To Make Net Neutrality Supporters Seem Unreasonable, Racist & Unhinged

from the ignoring-the-will-of-the-people dept

Last week, we noted how the FCC was inundated with a flood of pro-net neutrality comments after HBO's John Oliver ran another segment on the subject. The FCC will vote to begin dismantling the rules on May 18, so Oliver even went so far as to craft a special URL (www.gofccyourself.com) to make commenting on the FCC proceeding easier. Unsurprisingly, the surge in annoyed consumers wound up temporarily crippling the FCC's website. And when you look at some of the early analysis of the data, it's not particularly hard to see why:

Now if you're a giant telecom mono/duopoly, or any of the thousands of sockpuppets they pay to misleadingly portray net neutrality as an unyielding assault on "freedom," this flood of pro-net neutrality sentiment is obviously a PR problem.

As a result, net neutrality opponents quickly got to work trying to counter the "John Oliver effect" with alternative facts. One, the FCC tried to claim the FCC website didn't choke from a flood of pro-net neutrality supporters, but was the victim of a DDoS attack that just happened to occur at exactly the same time Oliver's segment was airing (a claim security researchers say isn't supported and for which the FCC has yet to offer a shred of evidence).

Another, as-yet-unidentified player began using a bot and a (likely) hacked database of names to flood the agency's website with fake comments against net neutrality. One analysis of the comments filed so far found that 40% of the 1.5 million comments made so far were created by this busy little bot.

But the FCC itself also began engaging in a rather obvious and ham-fisted attempt to make net neutrality supporters seem racist, unstable and unreasonable. By Wednesday, as the "net neutrality support was so massive it broke the FCC's website (again)" narrative was peaking in the press, FCC staffer Matthew Berry began linking on Twitter to news outlets claiming that net neutrality supporters were filling the FCC coffers with racist attacks:

Berry subsequently highlighted a statement made by the Internet Association (a pro-net neutrality group backed by the likes of Reddit and Netflix) criticizing any racist behavior by commenters:

The news reports being pushed by the FCC (like this one over at the Daily Caller) cling to several misleading narratives. One, that the people watching John Oliver's program were somehow not airing legitimate complaints with Pai's plan to gut all oversight of giant broadband monopolies. Two, that most of these people were hateful, racist, or otherwise horrible people that shouldn't be taken seriously. And three, that the pro side was using misleading "bots" to generate fake support from fake people (despite the fact that only the anti side appears to have used this tactic so far, a story the FCC also appeared eager to bury).

Take this excerpt from the Free Beacon "story" Berry links to:

"John Oliver's "grassroots" activism against Federal Communications Commission chairman Ajit Pai is full of bot accounts, fake comments, and death threats against the chairman...an analysis of comments to Pai's Restoring Internet Freedom filing, which Oliver has dubbed "Go FCC yourself," shows thousands of comments using fake names and bots posing as "Jesus Christ," "Michael Jackson," "Homer Simpson," and "Melania Trump."...Over 500 were submitted using Chairman Pai's name, as well as 189 from "Donald Trump" and 8 from "Obama." Eleven submissions used some version of the word "f–k."

If you think about it, the fact that Pai is trying to dismantle consumer protections for one of the most despised industries in America and only eleven people said fuck is actually pretty impressive. Also, for future reference, you don't magically delegitimize people with legitimate complaints just by putting words like activist or grassroots in quotes.

That said, if you dig through the now 1.5 million comments so far, you'll find that the vast, vast majority of the comments from both sides of the debate are entirely civil. Yes, there are the occasional comments from jackasses and racists, but by and large the feedback the FCC is getting sticks to the issues. And again, analysis of the comments so far has found that most of the original comments (comments made not using form letter systems embraced by both sides) are coming from consumers that actively support net neutrality protections.

How hard FCC staffers like Berry pushed these outlets to carry this narrative isn't clear. But Berry and the FCC's attempt to counter the Oliver effect also involved highlighting a story run by the Independent Journal Review featuring FCC boss Ajit Pai reading some of the mean comments he's been receiving on Twitter:

For whatever reason the original story pulled the video, which is embedded below for your enjoyment:

Now these kinds of segments aren't really new. Countless politicians (including Obama) and celebrities have done similar schticks, where they field unhinged comments from often juvenile and blindly hostile Twitter users. That Pai (who obviously has post-FCC political aspirations) did a similar video isn't a problem in and of itself.

The problem in this particular instance is that outside of some vagaries, the Independent Journal Review doesn't explain why people might be legitimately angry with Pai. After all, this is the guy that's not only killing net neutrality, but recently helped protect prison monopolies, began axing a program that brings broadband to the poor, killed an attempt to bring competition to the cable box, helped axe consumer broadband privacy protections, and is working to eliminate anything even vaguely resembling oversight of growing monopolies like Comcast. All while insisting he's an unwavering champion of the poor.

Pai is disliked right now for entirely legitimate reasons. Yet the mean tweets segment tries very hard to make gutting consumer protections seem "folksy," and the corresponding backlash seem unreasonable. When a few reporters pointed out Pai's mean tweets segment was a bit tone deaf to the legitimacy of the public complaints, Pai advisor Nathan Leamer was quick to insist that critics simply couldn't take a joke:

Again though, the problem isn't Pai reading mean Tweets. The problem is that the segment doesn't explain why Pai is incredibly unpopular with consumers and the internet in the first place. The problem is also that this segment was obviously part of a larger, overarching attempt to make people with very legitimate grievances seem wholly unhinged and unreasonable. Oliver even went so far as to highlight how cable news channels were pushing the narrative as well, in an expanded bit the show did solely for online viewers (skip to the 3 minute mark if you don't want to watch the whole thing):

As an additional layer of irony, this PR effort was occurring during the FCC's "sunshine" period, an arguably stupid bit of long-standing policy bureaucracy during which the FCC is supposed to pause and "reflect" the will of the public and the facts on the ground.

And the facts on the ground say net neutrality rules protecting consumers from growing monopolies like Comcast have broad, bipartisan public support. It's also a fact that despite his claim of a "deliberate consideration" of all the facts, Ajit Pai has every intention of completely ignoring public will when the agency votes to begin rolling back the rules this Thursday -- after his agency gets done smearing the consumers he's supposed to be protecting as the very worst sort of villains, of course.

Filed Under: ajit pai, comments, fcc, john oliver, matthew berry, net neutrality, racism

The FCC Claims A DDoS Attack -- Not John Oliver -- Crashed Its Website. But Nobody Seems To Believe Them

from the botnet-bravado dept

We just got done noting that the FCC's commenting system crashed after comedian John Oliver's latest bit on net neutrality last weekend. Given that Oliver's first bit on net neutrality did the exact same thing, it didn't take long before the media wires were filled with stories about how a flood of outraged net neutrality supporters had crippled FCC systems. Again.

But then something interesting happened. The FCC issued a statement (pdf) claiming that the agency's website didn't crash because of a flood of annoyed net neutrality supporters, but crashed due to "multiple DDoS attacks" that just happened to have been launched at the exact same time Oliver announced a specially crafted URL (GoFCCYourself.com) to make commenting on the FCC's net neutrality-killing NPRM easier:

"Beginning on Sunday night at midnight, our analysis reveals that the FCC was subject to multiple distributed denial-of-service attacks (DDos). These were deliberate attempts by external actors to bombard the FCC’s comment system with a high amount of traffic to our commercial cloud host. These actors were not attempting to file comments themselves; rather they made it difficult for legitimate commenters to access and file with the FCC. While the comment system remained up and running the entire time, these DDoS events tied up the servers and prevented them from responding to people attempting to submit comments. We have worked with our commercial partners to address this situation and will continue to monitor developments going forward."

And while that may or may not be true, there's a rising tide of skepticism about the FCC's statement. For one, requests from multiple news outlets for additional detail on the scope and nature of the attack were met with total silence by the agency. And multiple security experts were quick to point out that there were none of the usual indicators, claims of responsibility or online chatter you see online ahead of many DDoS attacks:

"There don’t appear of be any indications of a DDoS attack in the sensors we use to monitor for such things,” said John Bambenek, a threat intelligence manger at Fidelis Cybersecurity. “It appears the issue with the FCC is less of a DDoS attack, traditionally defined, and more of an issue of crowdsourcing comments generated by John Oliver and reddit."

Jake Williams, CEO of cybersecurity firm Rendition InfoSec, said the agency “offered no support” to prove a DDoS had occurred.

"There was no observed DarkWeb chatter about such a DDoS before or after the event and no botnets that I’m monitoring received any commands ordering a DDoS on the FCC’s site,” Williams said.

Of course that's not definitive proof that the there wasn't a DDoS attack, but the fact that the FCC isn't willing to offer a shred of additional detail -- along with the timing of the mystery "attack" -- remains curious. And given that this is the same FCC that has spent the last few months claiming that gutting all regulatory oversight and public accountability of some of the least liked and least competitive companies in America somehow "restores freedom," lying in a feeble attempt to squash the media narrative that a flood of pissed off consumers broke the FCC's website wouldn't be out of character for the Ajit Pai-led agecy.

Of course, there's one way to settle any confusion: the FCC could release logs of its network traffic during the attack. Net neutrality activists were quick to demand as much. As was Senator Ron Wyden, who fired off a letter to the FCC asking for some hard data on the width and breadth of the attack. If it really was a malicious attack -- and not just a throng of consumers genuinely annoyed by the FCC's wave of recent anti-consumer behavior -- it shouldn't be particularly hard to prove.

Filed Under: comments, ddos, fcc, john oliver, net neutrality