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 favour 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 satirises on his show: it's detailed, thorough, hilarious and razor 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 Unconstitutional. 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 organisations when Murray doesn't like their reporting, calling it Murray's "favourite 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 summarises the case at hand, bullet-point style, calling it (accurately!) a "petty list of grievances" and pointing out some of the more absurd claims in the lawsuit which, as many people noted, read more like a political screed than an actual defamation lawsuit. Included in that list of petty grievances, of course, are the following two:
“Defendants [described] Bob Murray as someone who ‘looks like a geriatric Dr. Evil’ and arranging for a staff member to dress up in a squirrel costume and deliver the message “Eat Shit, Bob!” to Bob Murray.
“[A]fter the live taping, Defendant Oliver exclaimed to the audience that having someone in a squirrel costume tell Bob Murray to ‘Eat Shit’ was a ‘dream come true.’”
Keep that in mind, because it'll come back again. Oh, and after that second point, there's actually a little footnote marker, with the footnote reading (I kid you not): "Everyone is allowed to have dreams." Indeed. And I kinda get the feeling that one of Jamie Lynn Crofts' dreams was to be able to file a brief like this.
The brief then points out the ridiculousness (as we did in our post) of the idea that Murray "had" to file this lawsuit because after Oliver broadcast his show, Murray had no way to get his side of the story out. Except, well, he did:
Ironically, the Complaint outrageously claims that Defendants “attacked [Bob Murray] in a forum in which he had no opportunity to defend himself, and so he has brought this suit to try to set the record straight.” ... In direct contravention to this claim, Plaintiff Murray Energy sent out a press release about the case the very day it was filed.... Two days later, Bob Murray was on national television calling John Oliver a “radical elitist.” Matthew Wisner, Robert Murray on John Oliver: Radical Elitists’ Broadcast Operative, FOX NEWS, http://www.foxbusiness.com/features/2017/06/23/robert-murray-on-johnoliver- radical-elitists-broadcast-operative.html. No other opportunity to defend himself, indeed.
Sarcasm in a legal brief? Lovely.
And... then we get to me being quoted. I was particularly proud of this line in my earlier post, so I'm glad someone noticed it, even if she calls us TECH DIRT rather than just plain old Techdirt.
The Complaint also interestingly claims that “nothing has ever stressed [Bob Murray] more than [John Oliver’s] vicious and untruthful attack.” ... As one media outlet asked, “[I]s he really saying that a late night British comedian on a premium channel has caused him more stress than the time that one of his mines collapsed and killed a group of his employees? If so . . . that’s . . . weird.” Mike Masnick, Bob Murray’s Lawsuit Against John Oliver Is Even Sillier Than We Expected, TECH DIRT (June 23, 2017),
Anyway, onto Section III as highlited in the Table of Contents above, starting with "Anyone Can Legally Say 'Eat Shit, Bob!'"
This case is beyond meritless. It is offensive to the very ideals of free speech embodied in the First Amendment. The fact that Plaintiffs filed this case is ridiculous enough; but, to pour gasoline on the fire, plaintiffs’ counsel has also filed a motion asking the court to make John Oliver not say mean things about him anymore.... It is frankly shocking that Plaintiffs were able to find attorneys willing to file a lawsuit that is so obviously unconstitutional.
Great start... but then it gets even better:
It is apt that one of Plaintiffs’ objections to the show is about a human-sized squirrell named Mr. Nutterbutter, because this case is nuts. Which also begs the question: is Mr. Nutterbutter one of the 50 Doe Defendants included in this action?
I cannot stop laughing. That two paragraph section is just... perfect. Dismissive first paragraph. Second paragraph starts off with a nice burn tying Mr. Nutterbutter to "nuts" but then, the second sentence is what makes this a piece of art.
And we're not done yet. After a moderately more conventional discussion on why you can't sue people just for being mean to you, along with an explanation of the nature of satire, Crofts spends a bit of time on the allegation that it's somehow defamatory to compare Murray to Dr. Evil from the Austin Powers movies, noting:
And with regard to the Dr. Evil remark, it should be remembered that truth is an absolute defense to a claim of defamation. E.g. Syl. Pt. 1, Crump v. Beckley Newspapers, Inc., 173 W. Va. 699, 699 (1984).
Um. Damn. Yes, that image is in the filing right after claiming that truth is an absolute defense. And... not to be missed, right after the "with regard to the Dr. Evil remark" and right under that image, there's this amazing footnote:
It should be noted that the very mean comparison arose from both a striking physical resemblance between the two characters and a statement by Plaintiff’s General Counsel with an uncanny similarity to statements made by a more youthful Dr. Evil. Compare Coal Operator Sues Beacon Journal Over Portrayal of Him in Article, ATHENS NEWS, (Jan. 29, 2001), https://www.athensnews.com/news/local/coal-operator-sues-beacon-journal-over-portrayal-of-himin/ article_24549e9b-de35-5b4c-b3c6-2ad29b33f694.html (Plaintiff’s General Counsel noting that although he could not legally demand one billion dollars, the figure did reflect the potential damages of the article that gave rise to that suit—this can reasonably be interpreted to mean Plaintiff’s General Counsel wanted to demand one billion dollars); with Pierre Pavia, Dr Evil in 1 Million Dollars, YOUTUBE, (Jul 11, 2008), https://www.youtube.com/watch?v=cKKHSAE1gIs (a young . . . er Dr. Evil demanding “one million dollars,” “one hundred billion dollars,” and “one billion gajillion fafillion shabadoodalooyim[inaudible]million yen”).
And, yes, that link does go to a nice montage of Dr. Evil's demands.
In discussing Murray's request for a gag order, Crofts points out:
Bob Murray thinks John Oliver was mean to him, and he doesn’t want him to be mean again. While that is sad for Bob Murray, it is unconstitutional for a court to order such relief.
Oh, and more legal filing comedy gold here:
Plaintiffs argue that Defendants will use their “unique powers” to “access . . . millions of West Virginians, to bias the potential jurors who will determine their fate.” Pl’s Mem. at 3. (These special powers must include magic, as West Virginia has under 2 million residents.)
It also notes that Oliver, HBO and the other defendants have all been silent about the case already... while Murray has been appearing on TV and issuing press releases about it, raising questions about why Murray is so desperate to get a gag order on Oliver.
This is... gold. Of course, it's unclear if the court will care. Again, amicus briefs are fairly rare in district courts, and quite rare this early in the proceeding, especially when there's nothing new or unique about the case. It's not even clear if the court will officially allow the brief. Indeed, some district courts actually actively dislike amicus briefs -- and at least some judges might not appreciate the joking tone here (even if we do). Perhaps Crofts and the ACLU of West Virginia figured that even if the judge isn't a fan, "why the hell not" and ran with it. While the court may not appreciate it, I'm sure plenty of folks here on Techdirt will.
Oh, and in case you were wondering: did Crofts have any assistance in writing the brief, she has revealed her assistant on Twitter:
— Jamie Lynn Crofts (@jamielynncrofts) August 1, 2017