Docket # 17-004: Eat Sh*t, Bob! or How I Learned to Stop Worrying and Love Defamation Suits

Warning

I am not your attorney, so don’t run around spreading lies and innuendo saying I am your attorney, because I’m not. And then you’ll have a defamation suit on your hands and you don’t want that, as you’ll see later in this episode. Please, do not take any of what you are about to hear as legal advice.

Intro

Coming up in this Orangefinger-free(!) episode:

  • We’ll revisit some of the lawsuits I covered in previous episodes; and

  • Add a couple of new and interesting ones to the list.

I’m Geoffrey Blackwell, I’m telling you to eat shit, Bob, and you’re listening to Docket # 17-004 of All Too Common Law.

Opening Statement

I hinted at this last episode, but in case you missed it I thought I would mention it again: If you’re thinking about suing somebody, one of the first things a lawyer will tell you is that it’s going to take. For. Ever.

Over the last few years, I’ve covered a few crazy lawsuits and I thought that this episode, coming back from an extended break, would be a good time to revisit them and see how they eventually turned out.

Footballs,…

First up, New England Patriots Fans v. NFL. For those who either don’t remember or haven’t listened to Docket # 16-004, this lawsuit was the result of some butt hurt Pats fans deciding to literally make a federal case out of the fact that their team was fined $1M and was deprived of two draft picks in the aftermath of the Deflate-gate scandal.

The fans sought a court order directing the NFL to rescind the sanctions. After Docket # 16-004 dropped, Judge Saylor threw out the whole lawsuit.

To file a lawsuit in federal court you have to meet certain conditions, the two most-common being 1) that no pair of plaintiff and defendant in the case are from the same state, called “complete diversity;” or 2) the case involves a “federal question,” or, in other words, you are alleging that the defendant violated federal law.

…not footballs.

The Pats fans claimed there was both diversity and a federal question. Judge Saylor said otherwise. First of all, one of the plaintiffs and one of the defendants both lived in Massachusetts. Because these two opposing parties shared the same “home field advantage,” so to speak, they were not “completely diverse” from each other, so the federal court did not have diversity jurisdiction, which means that if the lawsuit doesn’t involve a federal question, there’s no jurisdiction for a federal court to hear the case.

But Judge Saylor also concluded that the federal claim the Pats fans raised in their complaint lacked merit. The fans claimed that the defendants violated the Racketeer Influenced and Corrupt Organizations statute (more commonly known as the RICO act) but the judge concluded that that claim wasn’t supported by the allegations they listed in their complaint.

Without their only federal claim, the Pats fans had no grounds to bring a lawsuit in federal court and Judge Saylor threw it out.

A few months later, Stacy Pincus saw her lawsuit against Starbucks over the sizes of the company’s iced drinks thrown out as well. In dismissing the lawsuit, the Honorable Thomas M. Durkin of the Northern District of Illinois was about as dismissive as I was when I heard about the case. He wrote:

The heart of [the plaintiff]’s claims is that if Starbucks advertises an “iced” drink as containing 24 fluid ounces, the drink “should have 24 ounces of fluid plus ice.” . . . As a federal district court in California concluded in a similar case, “If children have figured out that including ice in a cold beverage decreases the amount of liquid they will receive, the Court has no difficulty concluding that a reasonable consumer would not be deceived into thinking that when they order an iced tea, that the drink they receive will include both ice and tea and that for a given size cup, some portion of the drink will be ice rather than whatever liquid beverage the consumer ordered.”

Sick burn, Judge Durkin. Sick. Burn.

He goes on:

Customarily, drink sellers do not inform their customers regarding the specific volume measurements of the drink containers they offer. Instead, sellers create displays using examples of the available cups—which (until Starbucks entered our lives) were simply described as “small, medium, and large.” Not only has Starbucks shunned these traditional descriptors in favor of more fanciful language (i.e., “short, tall, grande, venti,” and—heart be still—“trenta” [“Venti” and “Trenta” apparently being registered trademarks!]), Starbucks has also decided to specifically identify the volume of each container. . . . Despite the reference to “fluid ounces” on Starbucks’s menus, a reasonable consumer still understands Starbucks’s container size menu to convey information regarding the volume of the cups its drinks come in, as opposed to the contents of the various drinks.

I like Judge Durkin. He has the right attitude.

And with those two old cases out of the way, let’s look at a couple new ones that have made the news recently.

Defamation

Two lawsuits have garnered a lot of media coverage lately, for two very different reasons, but coincidentally both happen to involve claims for defamation. The first is Rod Wheeler’s lawsuit against Fox News regarding the network’s reporting of the death of Seth Rich. The second is the lawsuit brought by Bob Murray and Murray Energy against John Oliver and HBO over a segment in Oliver’s show Last Week Tonight.

Like the freedom of speech, defamation is one of those legal terms that people like to throw around a lot without really knowing what it means. They’re usually somewhere in the vicinity. Like you’re aiming for New York but you wind up in Philly. You’re not all that far away but there’s a big difference.

So what is defamation? Put simply, it’s a false statement about one person, said to another person, that harms the subject of the false statement.

For example, if you and I were talking and I said the sentence, “I was walking in Lafayette Park and saw Anthony Scaramucci feeding rat poison to a puppy,” and as a result of that statement Anthony Scaramucci was unable to find work, or his family left him, or he suffered some other quantifiable harm, then I would be liable to him for defamation. I made a false statement, because in fact I’ve never witnessed Scaramucci poisoning puppies, and he suffered a harm.

Mario Cantone as “The Mooch” on Comedy Central’s “The President Show.”

But that’s just too straightforward, don’t you think? So we’ll complicate things a bit. Let’s say I really did see someone in the park but it wasn’t actually Scaramucci. Instead, it was a brilliant Scaramucci impersonator feeding a dog oatmeal from a box labeled rat poison.

My statement to you that, “I was walking in Lafayette Park and saw Anthony Scaramucci feeding rat poison to a puppy,” is still false but I did honestly believe the statement to be true.

In order to be defamatory, the person making the false claim has to at least be negligent about the truth of the statement in order to be liable. Since I had legitimate reasons to believe my statement to be true, I would not be liable to Scaramucci for defamation.

And I have another factor working in my favor. If the person about whom the statement is made—Scaramucci in this instance—is a public figure, then the person making the claim has to either affirmatively know the statement is false, or be acting with reckless disregard as to its truth or falsity.

So in my hypothetical scenario, since Scaramucci is a public figure and I believed my statement to be true, I would not be liable to him for defamation.

While we’re at it, let’s add another wrinkle to all this: The statement has to be the kind that a reasonable person would find reliable. If I tell you, “I was walking in Lafayette Park and saw Anthony Scaramucci feeding rat poison to a puppy,” and it was in the context of a joke (or a podcast episode exploring the ins-and-outs of defamation, for that matter), then it’s not the kind of statement that a reasonable person would expect to be able to rely on.

The same goes for statements of opinion. I can’t be sued for saying, “Anthony Scaramucci is a douche bag of such enormity that he is rivaled only by his former boss, who will remain nameless because I promised this episode would not mention him.” I cannot be held liable for defamation for that statement because the proportions of Scaramucci’s douchebaggery are a matter of opinion.

So far, all these little caveats and exception have benefited the person accused of making the statement. I want to add one more, but this one benefits the person claiming to be defamed. Normally, that person needs to show that they were harmed in some way. They’ve lost earnings, their friends and family have abandoned them, all the things we associate with a damaged reputation. Some statements, though, are recognized by the law to be so egregious that the courts will take it as a given that a harm resulted. If I say that someone committed a crime, has a sexually transmitted infection, or—importantly—say something that damages a person’s reputation in their profession or business, then that person doesn’t have to prove that they suffered a harm as a result. Absent evidence to the contrary, the courts will simply assume that harm has been done.

There’s plenty more that I could unpack here, but now that we all have at least a fairly reasonable understanding of defamation, let’s talk about these two lawsuits.

On August 1st, 2017, Rod Wheeler, a paid Fox News contributor, filed suit against Fox, Fox News, Malia Zimmerman, a Fox News reporter, and Ed Butowsky, another Fox News contributor. In his lawsuit, Mr. Wheeler alleges that all four defendants defamed him by first attributing statements to him which he alleges he never said and then, once he publicly challenged the truth of the quotes, they made additional statements that called his integrity into question.

All of this stems from a story that has been getting a lot of coverage on the fringe right for months now. Last summer in Washington, a DNC staffer named Seth Rich was killed. A conspiracy theory developed around the idea that Seth Rich, not Russia, provided DNC emails to Wikileaks. Fox News ran a story on its website which included these statements, attributed to Wheeler:

“‘My investigation up to this point shows there was some degree of email exchange between Seth Rich and Wikileaks,’ said Wheeler.”

and:

“‘My investigation shows someone within the DC government, Democratic National Committee or Clinton team is blocking the murder investigation from going forward,’ Wheeler said. ‘That is unfortunate. Seth Rich’s murder is unsolved as a result of that.’”

According to Wheeler, Malia Zimmerman also told Joel Rich, Seth Rich’s father, “As you know, much of our information came from a private investigator, Rod Wheeler, who we understand was working on behalf of you.”

Immediately after the story was published, Wheeler began publicly disavowing those statements, alleging that he had never given those quotes, and the story was soon retracted by Fox News. However, in the aftermath of that retraction, Ed Butowsky posted tweets implying that the DNC had paid Wheeler off and that he “has a major battle with the truth.”

A quick side note here: Mr. Butowsky deleted his twitter at about the same time Mr. Wheeler was filing his lawsuit.

As a paid contributor to Fox News, Mr. Wheeler is a public figure. That means that he has to prove that the quotes in the Seth Rich story were knowingly misattributed to him, or attributed to him with a reckless disregard for whether or not he actually said them. And he has to prove that Butowsky knew that the quotes were misattributed to him when Butowsky accused him of being paid off to change his story.

Mr. Wheeler may be able to do that. There is plenty of supporting material in his complaint to suggest that Zimmerman and Butowsky knew what they were doing and set out to concoct a story. Then again, as with a complaint in any lawsuit, we are only getting one side of the story here, a version of the story that has been carefully crafted by Mr. Wheeler’s attorney. If he can show that Fox News, Zimmerman, and Butowsky knew the statements they were making were false, they will probably be considered defamatory per se, and as a result Mr. Wheeler won’t have to present a bunch of evidence showing the opportunities he missed out on or other damage done to his reputation as a result of the misattributed quotes.

As of this recording, we are less than a week into this lawsuit, though, so it’s far too early to try to make predictions.

It’s worth noting here that Mr. Wheeler also alleges that Fox discriminated against him on the basis of his race. Discrimination in employment is a serious issue, and one I would like to tackle in a future episode, so we’ll put a pin in that for now.

And with that we’ll turn to the second defamation lawsuit of the day: Marshall County Coal Company v. Oliver.

The balls on this guy, huh? Respect.

On June 18, 2017, John Oliver devoted the main story in that week’s Last Week Tonight episode to the coal industry. Much of the segment concerned Murray Energy and its owner Bob Murray. Because Murray Energy and its namesake are notoriously litigious, Oliver and attorneys for HBO anticipated that the coal company would not take the segment in the spirit in which it was intended.

They were not disappointed.

Just three days later, Bob Murray, Murray Energy, and several Murray Energy subsidiary companies filed a lawsuit against John Oliver, Charles Wilson, senior news producer at Last Week Tonight, Partially Important Productions, Last Week Tonight’s production company, HBO, which airs Last Week Tonight, and Time Warner, which owns HBO.

Bob Murray and the corporate plaintiffs in the lawsuit make three claims against Oliver and his team: Intentional infliction of emotional distress, defamation, and “false light invasion of privacy.” That last one is a claim closely related to defamation, but distinct in a number of ways not worth going into here. Also not worth addressing right now is the claim of “intentional infliction of emotional distress.” I’m not sure how a company can suffer emotional distress of any kind, but we’ll slide past that discussion for now, and focus on the defamation claim.

Murray and his companies argue that numerous statements in the segment were false, that Last Week Tonight knew the statements were false and aired the statements anyway.

HBO, John Oliver, and the other defendants have filed their own papers, but really the West Virginia chapter of the ACLU has done the best job of refuting those claims. They aren’t even a party to the case, but they found Murray’s tactics in attempting to silence a critic to be so extreme they decided to weigh in any way. And I don’t just mean that they did it better than the parties themselves. I mean they did THE BEST JOB of refuting those claims. ACLU-West Virginia’s amicus brief in this case is the Platonic ideal of legal writing, and I’m certainly not going to be able to top it, so instead I’ll read a few highlights.

For the sake of clarity, I’m going to leave out their headings, which—as insane as this sounds—is a shame, because the headings are, in a way, the best part, but oh well. “Plaintiffs” here are Bob Murray and his coal companies. “Defendants” are John Oliver, HBO, the production team.

Here goes:

Plaintiffs’ claim does not come close to stating a claim upon which relief can be granted. Among the myriad of entirely legal activities contained in Plaintiffs’ petty list of grievances are the following:

  • Defendants attempted “to advance their biases against the coal industry and their disdain for the coal-related policies of the Trump Administration.”

  • Defendants “employed techniques designed solely to . . . embarrass Plaintiffs[.]”

  • “Defendants childishly demeaned and disparaged Bob Murray and his companies, made jokes about Bob Murray’s age, health, and appearance, [and] made light of a tragic mining accident[.]”

  • “Defendants are persons and organizations fundamentally opposed to any revitalization of the coal industry, having described coal as ‘environmentally catastrophic.”

  • Defendant Time Warner “is widely reported as a top ten donor of Hillary Clinton[.]”

  • “As a presidential candidate, Mrs. Clinton’s agenda was to ‘put a lotta [sic] coal miners and coal companies outta [sic] business.’”

  • “Defendants’ broadcasts have vigorously supported and advanced Mrs. Clinton’s agenda.”

  • Instead of focusing on what Plaintiffs wanted him to talk about, Defendants “ignored them and ‘doubled-down’ . . . , ending their recorded broadcast with the phrases ‘Eat Shit, Bob’ and ‘Kiss my ass, Bob.’”

  • “Defendants deliberately omitted the facts Plaintiffs provided regarding the Crandall Canyon Mine incident.”

  • “Defendant Oliver quoted from the sweeping executive summary of [an] MSHA report, which obviously and grossly overstated the actual conclusions contained in the MSHA report, which Defendants easily would have seen upon a cursory review of the actual MSHA report.”

  • “Defendants . . . aired a clip of congressional testimony of a relative of a former employee of Murray Energy that appeared to be dissatisfied with Bob Murray’s handling of the Crandall Canyon Mine collapse[.].”

  • “[I]n reference to Bob Murray’s denial of an absurd story that Bob Murray claimed a squirrel told him he should operate his own mines, Defendant Oliver stated ‘You know what, I actually believe Murray on that one’ and “Even by your standard, that would be a pretty ridiculous thing to say.’”

  • “Defendant Oliver . . . failed to mention, despite having the information, that Bob Murray has pioneered Emergency Response and Fire Suppression Training in the coal industry.”

  • “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.’”

  • “Defendant Oliver stated ‘Bob Murray, I didn’t really plan for so much of this piece to be about you, but you kind of forced my hand on that one.”

What Plaintiffs apparently fail to realize is that, even if all of this is true, they do not allege Defendants did anything illegal. “The expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent.” Texas v. Johnson, 491 U.S. 397, 406 (1988).

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.” No other opportunity to defend himself, indeed.

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.”

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.

It is apt that one of Plaintiffs’ objections to the show is about a human-sized squirrel named Mr. Nutterbutter, because this case is nuts.

End quote!

It was long, I know, but so worth it.

Of course, whether the court heeds the advice of the West Virginia chapter of the ACLU remains to be seen. At the moment, the case is pending in the US District Court for the Northern District of West Virginia, but Mr. Murray and his companies are arguing that the case should be heard by West Virginia state court instead. Presumably, this is because he thinks his business interests will have more sway for state judges, who are elected and therefore have to campaign for votes.

Murray argues that several of plaintiffs are not diverse from the defendants and that the federal court, therefore, has no jurisdiction to hear the case, and in so doing allows me to bring this episode full circle. The problem for Mr. Murray will likely be that you cannot actually just attach anyone you want as a plaintiff. A plaintiff has to be what’s called a “real party in interest.” It is up to the honorable judge Cramer to decide whether several of Murray Energy’s subsidiaries that were never mentioned in the Last Week Tonight segment can be considered “real parties in interest.”

But that’s a subject for another episode.

Conclusion

That’s it for this episode of All Too Common Law, but I’ll be back soon with another installment. If you enjoyed this episode, remember to rate the podcast on iTunes and share it on Facebook and twitter.

If you’d like to weigh in on the issues I discussed in this episode, particularly if I got something wrong, or if you’d like to suggest stories for later episodes, you can email me at g-t-blackwell@AlltooCommonLaw.com, leave a voicemail at 609-616-A-T-C-L, or post a comment on All Too Common Law dot com. You can follow the podcast on twitter @alltoocommonlaw. The theme music for All Too Common Law is “The Time to Run” by Dexter Britain, and is used in accordance with the creative commons license.

Thanks for listening.

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