When a person using a phony name posted a one-star rating – out of five stars – about psychiatrist Dr. Mark Beale on a Google Maps locator box, Beale saw it.
He was not amused. In fact, the Charleston-area psychiatrist was so disturbed that he filed a libel lawsuit against “John Doe.”
Beale in a separate court action now is demanding that the Internet behemoth Google divulge “John Doe’s” real name so he can go forward with his libel suit against the anonymous negative commenter. Google, headquartered in California, has 72,000 employees and is the world’s most widely used search engine.
The one-star review on Google “unfairly caused him to lose the goodwill and confidence of the community ... and harmed him in a way that lowers the estimation in the community about his professional practice as a psychiatrist,” wrote Steve Abrams, Beale’s attorney in the action, filed in state court in Charleston County.
Beale alleges a lot of things in his suit. He claims the one-star rating -- left by a single person with zero additional commentary -- has led to "extreme and constant distress." He points out he has received mostly positive ratings elsewhere and that the person clicking on the single star -- "Richard Hill" -- is not a patient of his, at least not under that name.
Of course, Beale's online ratings have fallen significantly since the filing of this lawsuit. Some have pointed out the "extreme and constant distress" Beale claims to be suffering as a result of this single single-star review isn't the sort of reaction one would expect from a mental health professional.
Beale's attorney, Steven Abrams of Mount Pleasant, said he has handled several similar cases, and companies like Google, AT&T, Comcast and Verizon typically hand over identifying information of anonymous users.
“Why Google fought this case, I have no earthly idea,” Abrams said. “There’s not really a lot of case law (in South Carolina) ... on these types of cases because they don’t usually result in a fight.”
Maybe he should get out more. Reviews are protected speech, for the most part. Stated opinions aren't defamation, no matter how caustic they are. That Google would oppose the unveiling of a person who effectively said nothing more than "1 out of 5" should be unsurprising, not a point of confusion. Besides, as Google pointed out in court filings, Beale has plenty of "more speech" options to combat the one-star review that have nothing to do with pursuing bogus defamation claims.
Google’s legal filing in the case asserts that the one-star posting by “John Doe” had no text with it and is just a “quintessential statement of opinion that cannot be proven true or false.”
Moreover, Google argues, the psychiatrist can post his own rebuttal to the one-star rating “on the same site” and “thereby easily correct any misstatements or falsehoods ... and generally set the record straight.”
So far, the only thing Beale has accomplished is making a fool of himself. His ratings at multiple sites are starting to collapse. At this point, there's nothing to be gained from pursuing the lawsuit, other than keeping his nonplussed counsel employed. His overreaction to a wordless one-star review has done more damage to his career than ignoring it ever would have.
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:
After nearly four years, convicted bomber and perjurer Brett Kimberlin has lost his lawsuit against your favorite blogger (that’s me!). Federal District Judge George Hazel today issued an opinion granting me summary judgment in Kimberlin’s frivolous and censorious lawsuit against me.
It is a total and complete victory. There will be no trial. I will pay nothing. I will take down no blog posts about Kimberlin. The lawsuit is simply over. (Of course, he’ll appeal. He always appeals.)
This should have been a simple anti-SLAPP case. Should have. Wasn't. (Part of it is Maryland's weak take on anti-SLAPP.) It took four years to resolve and tons of pro bono hours. Kimberlin claimed he had been defamed by Frey's post, which was based on four news sources and covered his conviction for bombing and his rise to dubious fame as Dan Quayle's pot dealer (back when Quayle was still VP/relevant).
Kimberlin has a long history of abusive, vexatious lawsuits -- all of them filed with the intent of shutting down criticism. His defamation claim was just the tip of iceberg. In his legal threat (all the way back in 2010), Kimberlin claimed a variety of injuries from Frey's post, accusing him of cyberstalking, cyberbullying, and "interference with business."
I have filed over a hundred lawsuits and another one will be no sweat for me. On the other hand, it will cost you a lot of time and money and for what.
So… basically announcing up front he sued people to harass them into silence. There's a long write-up from a couple of years back at The Daily Beast that delves into Kimberlin's litigious (and criminal) history -- one that includes filing a RICO suit against political commentators and his alleged involvement in the SWATting of defendant Patrick Frey.
It's all over now but the appeals process. Free speech was ably defended by two great lawyers working for free. (You'll probably recognize Ron Coleman as the counsel in the recent Supreme Court Tam decision, which declared the trademark's board refusal to recognize "disparaging" marks was a violation of the First Amendment.)
Even though Frey's post is upbeat, this was still a four-year bogus, censorial legal battle that cost the defendant (and his reps) time and money to defend against. Despite Kimberlin pretty much admitting he files lawsuits to harass people, no court has sanctioned him for this behavior. This court doesn't either, but it does allow Patrick Frey to dismiss the lawsuit and leave all his criticism of Kimberlin intact.
What's problematic about the long-running suit is the behavior of parties on both sides. Kimberlin has made it clear he wants to intimidate people into silence. His critics want to attribute everything from SWATtings to pedophilia to Kimberlin with little real evidence*, even though a mere factual rehashing of his past legal troubles would be damning enough. But, based on his responses to all of this, Kimberlin appears to have little interest in even factual rehashings staying alive on the web. He appears to be convinced that there's a massive conservative conspiracy trying to destroy his election-related non-profit. But rather than use his position as a minor liberal icon and the open publishing platform that is the internet to repudiate assertions, Kimberlin files lawsuits.
*UPDATE: Aaron Walker -- another critic Kimberlin sued -- wrote to me to point out the accusations of pedophilia are based on Kimberlin's and his ex-wife's own statements. He also wanted to point out that, while many have written about the SWATtings that followed criticism of Kimberlin, no one (that he's aware of) has tried to directly attribute this to Kimberlin. Details on the pedophilia claims can be found over at Popehat.
His suits are little more than a form of harassment, albeit one that can't possibly be ignored by burying comments, hitting "mute/block" buttons on social media, or simply refusing to engage in arguments with him. A lawsuit must be responded to, and those who are sued are expected to fund their own defenses even when the accusations are clearly bogus. This decision is a small win for free speech and yet another cautionary tale about the abuse of the judicial system to punish bloggers and pundits for their critical words.
This lawsuit is yet another example of what it's so necessary to push for better anti-SLAPP laws, both at the federal level and at the state level. This kind of harassment would not have wasted nearly as much time and resources if there were a reasonable anti-SLAPP law protecting Frey from having to go through such a long and arduous process. Maryland's legislature, in particular, should be aware that it has failed to protect free speech by having a woefully limited anti-SLAPP law that allows cases like this to drag on and on, rather than adopting anti-SLAPP laws similar to those found in other states (like California and Texas) that actually protect free speech by ending these lawsuits much earlier in the process.
Oh, James Woods. He has now "settled" the ridiculous lawsuit he filed against someone mocking him on Twitter... but is still fighting a fairly similar lawsuit that was filed against him -- complaining that it's an attack on his free speech rights.
If you don't recall, the rather opinionated actor sued a trollish Twitter user who went by the name Abe List, after Abe referred to Woods as a "cocaine addict" in a clearly hyperbolic tweet. As the case progressed, "Abe List" died unexpectedly, leading to Woods obnoxiously gloating on Twitter that List had "dropped" his anti-SLAPP appeal, and when people pointed out it was only because List had died, Woods demonstrated what kind of character he is by cheering on the fact that someone died.
Nice guy, huh?
And, of course, that leaves out that Woods had a history of tweeting similarly hyperbolic statements about others who he disagreed with:
So, Woods was already looking fairly hypocritical here, but as you'll see soon, that level of hypocrisy is becoming more pronounced.
Either way, after "List" died, you might think that Woods would just drop the case, but given his clear animosity (see tweet above) towards a guy making a silly statement on Twitter, he kept the case going in order to unmask the real identity of "List" and to potentially pursue the case against his estate. As first revealed by Eriq Gardner at THREsq, Woods has finally agreed to settle the case, but at least part of the terms of the settlement is that he got attorney Ken "Popehat" White (who you probably know if you're reading Techdirt, and who has represented us at times) to write a silly letter stating what basically everyone in the world already knew: specifically that when Abe List referred to Woods as a "cocaine addict" it wasn't meant to be taken literally:
From attorney Kenneth White, the letter states, "On behalf of my client — the defendant referred to as 'Abe List' in the lawsuit filed by James Woods — and my client's surviving family, I acknowledge that they are not aware of any facts to suggest that Mr. Woods has ever been a cocaine addict or used any other drugs."
Frankly, this feels more like an attempt to try to humiliate Ken (which, uh, generally isn't a good idea), but the end result just makes Woods look ridiculously and almost comically petty.
Oh, and back to the hypocrisy thing. Earlier this year, we also noted, with some amount of irony, that Woods was now on the receiving end of a very similar lawsuit. A woman, Portia Boulger, sued Woods for calling her a "Nazi" in a tweet that was actually a case of mistaken identity. As we pointed out, unlike some people, we can remain true to our principles, and we believe that Boulger's lawsuit against Woods is just as misguided and just as much as a SLAPP suit as Woods' lawsuit was against List.
Either way, in that case, Woods' lawyers filed a motion for judgment on the pleadings last month, which makes a bunch of statements that sound a little odd, considering they're on behalf of someone who was (at the time) still engaged in litigation against someone who jokingly called him a "cocaine addict" on Twitter.
This case is simply an unsuccessful attempt by Plaintiff to quell the free speech rights of
Mr. Woods, a conservative actor. Indeed, Plaintiff's claims for defamation and false light/invasion
of privacy both fail as a matter of law. First, Plaintiffs claim for defamation fails as a matter of
law because Mr. Woods' allegedly defamatory question is not a statement of fact. Nor would a
reasonable reader interpret Mr. Woods' question--seeking clarification--as inferring any factual
content. Likewise, Plaintiff's false light/invasion of privacy claim fails as a matter of law because
no misrepresentation regarding Plaintiff's character, history, activities or beliefs is present in Mr.
Woods' tweets, much less a misrepresentation that would warrant a reasonable person, in
Plaintiff's position, to take the serious offense required to succeed on a false light/invasion of
privacy claim.
That's... an interesting way of saying what happened. As a reminder, here's how THResq described the tweet that Woods sent:
This all started in March 2016, after the Chicago Tribune posted a campaign rally photo of a woman who was wearing a Trump T-shirt and giving a Nazi salute — the well-known 'Heil Hitler' salute with her right hand raised straight up — and several Twitter users misidentified the woman in the picture as Boulger, according to the complaint. Woods tweeted the photo from his verified account and wrote, “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?”
So, yeah, his tweet was a "question" but a "reasonable person" would be unlikely to think that Woods was "seeking clarification." Rather most reasonable persons would likely believe that Woods was implying strongly that Boulger, a Bernie Sanders supporter, had gone to a Trump rally and pretended to be a Nazi supporter of Trump (which she had not).
But, really, it's the "reasonable person" line that's the kicker here. Because that same "reasonable person" looking at Abe List's tweets would similarly have been just as unlikely "to take serious offense" to that tweet. And, yes, there's something fairly ridiculous for Woods to be whining that someone is trying to "quell" his free speech (even if true) when he was doing something quite similar at the very same time.
Later in the motion, Woods' lawyers (properly) point out that "the general context of the statement" and the "broader context in which the statement appears" are a critical element in determining defamation -- which, again, seems silly given that same test, applied to the guy Woods' sued would likely have worked very much against Woods' defamation case.
Finally the truly amazing argument, given Woods' lawsuit against List. I'll just post the paragraph here:
Likewise, Mr. Woods' allegedly defamatory question appeared on his personal Twitter
account, in the midst of a highly-contested and widely-covered presidential political campaign.... A personal social media account, such as an individual's Twitter account, cannot
reasonably be interpreted as a forum for fact reporting.... Rather, such
a context is akin to a forum or editorial section of a newspaper where a reader would expect to see
statements of opinion.... Additionally,
Twitter, a social media platform powered by individual user accounts, can be described even more
so as a "well established genre of opinionated speech as it is commonly known the average
Twitter user is not "normally engaged in the business of factual reporting or news dissemination."
What the actual fuck, James? I mean, I agree. That paragraph is 100% accurate. But it sure seems... massively hypocritical to make that argument while suing someone for their similarly silly tweet about you.
Either way, if you're going to go around suing people for trollish tweets, perhaps don't go around posting trollish tweets yourself. And, if you do and even continue to pursue them after their death, don't then argue in a different lawsuit a bunch of points that totally undermine your own lawsuit. I mean, unless you want to be called out as a raging hypocrite.
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?
Because even some lawyers can't seem to understand the legalities of Section 230 of the CDA or third-party liability, the courts are frequently burdened with stupid defamation lawsuits that can't survive a motion to dismiss. DC lawyer Harry J. Jordan lobbed one of these lawsuits into court late last year on behalf of Dawn Bennett, who felt she was defamed by a blog run by Scott Pierson, an SEO specialist who apparently failed to make Bennett's less-than-flattering history with the SEC disappear.
While there may have been a legitimate complaint against Pierson for some of the statements he made, Jordan and Bennett formed a legal suicide pact and decided to sue Google, which did nothing but provide hosting for the blog. The deadly duo pursued this theory in an attempt to hold Google responsible for something a user said:
As Google was aware of plaintiffs’ complaints that Pierson’s blog was factually false and a malicious vendetta against them and meant to cause crippling financial damages, it is therefore equally responsible and liable for the damages plaintiffs’ have suffered.
It doesn't matter whether Google was aware or not. Short of a court order, Google has no responsibility to kill off a blog simply because someone else doesn't like its contents. Bennett's lawyer appeared to be completely unfamiliar with Section 230 because it's not even addressed in the complaint. It does, however, get discussed in the court's dismissal of the case [PDF link], as quoted by Eric Goldman.
To salvage their claim, Plaintiffs attempt to argue that a novel issue is presented in this case which requires the court to deny the Defendant’s Motion to Dismiss. Plaintiffs state “[b]ut what courts have not fully addressed is where a service provider, such as Google, adopts definitive prohibitions regarding the content of third party user material, and does not enforce them … [what is] the impact of such failure on Section 203(e) immunity.” Simply, “… does it create such an obligation for itself if it adopts guidelines of what it deems objectionable content and fails to follow through by enforcing such standards?” The answer is “no,” and thus Defendant’s Motion to Dismiss must still be granted. See Klayman, 753 F.3d at 1359–60 (discussing that the CDA bars claims arguing that service providers must be held to a heightened duty of care based on adoption of any statements allocating rights and responsibilities between interactive computer services and their users). “It would be impossible for service providers to screen each of their millions of postings for possible problems.” Zeran v. America Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997). Furthermore, holding Google liable for establishing standards and guidelines would ultimately create a powerful disincentive for service providers to establish any standards or ever decide to remove objectionable content, which the CDA was enacted to prevent.
It's an old argument, but it doesn't make it any less ridiculous. The plaintiff tried to convince the court that Google taking any actions at all to moderate content it hosts makes its legally liable for anything found defamatory. The final sentence of this quote makes it clear any ruling finding moderation efforts by third parties somehow erases their Section 230 protections would only make things worse by forcing every platform provider to take an entirely hands-off approach to user-generated content.
This is basic Section 230 stuff, as attorney Harry Jordan should know. But as we've seen before, even lawyers providing education classes for other lawyers don't seem to have a firm understanding of Section 230 protections, which is why this sort of thing happens far more often than it should. A person representing himself may not fully understand the intricacies of the CDA, but lawyers definitely should. Otherwise, this sort of embarrassment awaits them in court, and they'll have inverted the old saying by making it possible for someone to retain counsel, but still have a fool for a lawyer.
The case that we just entered involves Megan Welter, a young woman who achieved a degree of publicity success in the summer of 2013 with the story of how an Iraq war veteran had become a cheerleader for the Arizona Cardinals football team. A few days later, she learned how fickle the media can be: it got its hands on a less flattering situation: in a fit of jealous rage at her boyfriend’s communication with one of his exes, Welter called the police claiming that he was abusing her physically. But when the police arrived, the boyfriend persuaded them, through cellphone video as well as Welter’s own on-the-scene admissions, that it was Welter herself who was the assailant. The upshot was that Welter was arrested and charged, and that story, based in part on the boyfriend’s statements to the police, received national coverage in the print and broadcast media, as well as on various sports-related blogs and web sites. Many of these sites carried bodycam video from the responding police, plus the cell phone video that the boyfriend provided to the police; a few even linked to a detailed police report describing Welter’s own self-incriminating statements.
Despite it being almost two years past the statute of limitations, Welter engaged the services of Kelly/Warner LLC to file a defamation lawsuit. The complaint [PDF] contains nothing but conclusory claims about the supposed libel. (Basically, "false statements were made and were false.") The complaint was accompanied by a proposed injunction, which included a list [PDF] of 107 URLs --including YouTube videos and a variety of other websites -- Welter wanted delisted. But Welter still needed somebody to trigger this judicially-abusive chain of events. She, along with her lawyer, leaned on the ex-boyfriend.
The proposed stipulation included a signature line for Ryan McMahon, Welter’s boyfriend on the day of the controversial incident, and a paragraph in which McMahon purported to “admit” that the statements about Welter attributed to him in the various news stories were false.
McMahon signed the form, possibly after being misled by Welter's lawyer. (Levy notes her legal rep said he had an email chain showing McMahon's voluntary and knowing participation in the lawsuit, but refused to turn it over to Levy.) Welter's lawyer used this single signature to attempt to nuke 107 pieces of content not created by McMahon. Obviously, as Levy points out, the lawsuit wasn't filed to get her ex-boyfriend to shut up. It was filed to whitewash the unpleasant parts of her recent history.
The way to accomplish this was through a tricky manipulation of the well-established principle that injunctive relief extends to the “agents” of an enjoined defendant and, indeed, to others who connive with the defendant to propagate his wrongdoing. The stipulated injunction included several prohibitions of publication by “defendant’s” agents — in context, the “defendant” was plainly McMahon – but it defined the term “agents” as including anybody whose publication was “enabling” the publication of the 98 online articles based in part on McMahon's contemporaneous statements, as well as nine YouTube videos (most of which were copies of TV stories) identified in the complaint. Moreover, McMahon’s admission included the proposition that “all or substantially all of the statements made in URL’s are false and defamatory.” And on that basis, all of the defendants responsible for those online articles, as well as the “agents” as broadly defined, were commanded to take them down. [...] And, just in case they did not comply with these orders, the order called for Google and other search engines to take the URL’s identified in the order out of its database so that the content would not be searchable (here, again, the basic element of the fraudulent Richart Ruddie orders).
Even though numerous websites (including ABC News, CBS News, Sports Illustrated, and USA Today) were claimed to have published defamatory material, not a single one was listed directly as a defendant. The filing insisted all of these well-known sites -- most of them carrying writer bylines -- are only referred to as "unidentifiable" Does.
This internet-nuking order [PDF] should never have made it past a judge. But it did. Now Levy has filed a motion to vacate [PDF] on behalf of Avvo, one of the 98 sites listed in the attachment to the proposed order. It points out several flaws in the complaint and injunction, the first of which is the obvious statute of limitations violation. Beyond that, the complaint has numerous fatal flaws, including its failure to show how statements made by her ex-boyfriend to the police are somehow false now that she wants them scrubbed from the internet.
It appears Judge Patricia Starr isn't bothered by the plaintiff's questionable legal tactics. The only thing she finds irritating is this case's potential to add to her workload.
Since we filed the papers late yesterday, I received a recording of the telephonic hearing. That recording makes Judge Starr look even worse. The only reason she called the hearing, she said, was that she was worried that the terms of the stipulation could keep the case on her docket longer than it had to be; she wanted to know whether that problem could be fixed. And she wanted assurance that entry of the order would be the end of the case. She evinced no concern about the free speech rights of the absent defendants.
Worse, this free speech-ignoring injunction-granting came after hearing from the single named defendant, who contradicted the claims made in the lawsuit.
McMahon was on the telephone, and he said, toward the end of the very short hearing, “Even though she did these things, I really believe that everybody deserves a fresh start. And if it ever happened to me, I would want someone to do this for myself. So I am okay with that. I guess that I hope she learns her lesson, and she takes care of it and doesn't do it again.” So this state court judge had no compunction about issuing a sweeping injunction against nearly a hundred absent defendants even though the individual defendant, appearing without counsel before her, contradicted the “admission” in the stipulation that the URL’s were entirely or mostly false by saying, “she did these things.”
The court system can be abused by disingenuous plaintiffs seeking to erase their web pasts, but it shouldn't be encouraged by judges who suspect something is off, but are more interested in clearing their dockets.
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.
In March of last year, Jim Myers of the The Tennessean wrote an article about some staff changes at a local university's culinary arts program. If this seems like extraordinarily innocuous subject matter, you're obviously not former director Tom Loftis or his legal representation. Loftis has formally shouted "defamation" in a crowded courthouse. But his accusations aren't levied against Myers or The Tennessean, but rather against someone featured in the article: new culinary arts director Randy Rayburn.
His complaint [PDF] tries to turn Rayburn into the libelous villain by attributing things Myers wrote about Loftis and Rayburn into direct quotes by Rayburn.
On March 2, 2016, The Tennessean published an article, which is attached hereto as Exhibit A and incorporated herein by reference, under the byline of Jim Myers. The words in the article were spoken by Randy Rayburn and published by Mr. Myers in The Tennessean.
This opening assertion is then immediately proven false by Loftis' next allegations. (Emphasis mine.)
"It starts and ends on the cooking line," wrote Mr. Myers, "regardless of the talent of the chef or the quality of the wait staff." The article promoted an event called "Tennessee Flavors," purportedly the product of the Defendant, Randy Rayburn, as a benefit for the culinary arts program of Nashville State Community College.
Myers claimed to have written before about "the dearth of qualified line cooks in town, from our best restaurants to the hotels and convention centers ...." Rayburn, according to Myers, "recognized this need every day in his kitchens at the old Sunset Grill, Midtown Cafe, and Cabana, so he decided to do something about it by dedicating himself to helping build a Culinary Arts program at what used to be called Nashville Tech." These words of self-aggrandizement portray Rayburn as the savior of culinary arts from the incompetence of Plaintiff. The school had chosen to name its new facility at the former Hickory Hollow Mali in Antioch, "The Randy Rayburn School of Culinary Arts."
Reputation isn't zero-sum. Self-aggrandizement isn't defamation, even if it makes someone else look worse by comparison. And we still have yet to see any direct quotes from Rayburn -- only the columnist's impression of Rayburn and his activities.
Myers quoted Rayburn as willing to tell you "it hasn't been easy." When he sought the help of local restaurateurs and chefs to offer feedback on the program and the quality of his graduates, he was quoted, "the reports he got back weren't flattering. The program was simply turning out unqualified students."
Rayburn, "with his name on the building" chose to apply his experience in "how to cut losses and move on quickly," and "decided to get more involved."
Myers then wrote: "they started by cleaning house from the top by removing director Tom Loftis. It was a politically inexpedient move last year since Loftis was the brother-in-law of Bill Freeman who was running for Mayor at the time. If the election had gone a different way, it might have affected funding for the school."
And we still have yet to see Rayburn quote with anything more damning in it than his assessment of returned assessments. But Loftis isn't going to let facts stand in the way of a $1.5 million defamation suit.
These boastful and unseemly comments were reckless and made with a conscience [sic] indifference to the truth. No specific deficiencies were described nor was it revealed in this article whether any of the individuals about whom complaints were made had even attended the school much less graduated from it. No effort was made to determine whether these deficiencies were a function of a failure of instruction rather than an inadequacy of the individual. Among the chefs mentioned in the article were individuals who, to the knowledge of the Plaintiff, had never employed a graduate of the school.
And on and on it goes. Normally, a stupid defamation lawsuit is filed against the biggest target, be it Google or Yelp, etc., rather than the person actually engaging in alleged libel. This suit goes for the smaller target -- Randy Rayburn -- either out of spite (because Rayburn replaced Loftis and had a building named after him and appears to be better liked by local writers, etc.) or because Loftis thinks Rayburn will put up less of a fight than The Tennessean.
The motion to dismiss [PDF], filed by Rayburn's lawyer, Daniel Horwitz, does a thorough job explaining why this should be laughed out of court. It points out that Rayburn is never directly quoted -- at least not saying anything remotely defamatory -- and that the lawsuit states repeatedly that the words Loftis is bothered by were written by Myers and published by The Tennessean, neither of which are party to this lawsuit.
The problem here is Rayburn has to defend himself against these completely baseless allegations or get hit with an expensive default judgment. The best case scenario is the lawsuit being tossed as soon as a judge reviews the motion to dismiss. Unfortunately, this state has no anti-SLAPP law, so it will be extremely difficult to hold Loftis financially culpable for Rayburn's legal fees.
Hurt feelings often result in bogus lawsuits, but this one appears to be almost entirely motivated by the fact the plaintiff's successor at the university appears to be both better-liked and better at the job.
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.
