The defamation lawsuit filed by Murray Energy CEO, Robert (Bob) Murray, and several of his companies, against Last Week Tonight’s John Oliver, Partially Important Productions (the show’s production company), Charles Wilson (the show’s senior news producer), HBO and Time Warner, may not hold much weight in court, says First Amendment attorney, Floyd Abrams.
Why? Because, he explains in an interview with The American Lawyer, “Political commentary, whether phrased humorously or not, receives sweeping protection under the First Amendment… That is likely to be especially true when a judge reviews a complaint that seems so filled with political references.”
During the June 18 episode of Last Week Tonight with John Oliver – a late-night television show that heavily engages satirical humor in its commentary on the social and political ills of society – Oliver dug into the U.S. coal industry, including Murray Energy and Bob Murray, himself. He criticized Murray’s business practices and his treatment of employees, including his response to a 2007 mine collapse in Utah, in which nine people were killed.
Before he began his piece on Murray and his company (the largest, privately owned coal company in the U.S.), Oliver shared a piece of important information.
Prior to the show’s taping, he said, his team of writers approached Murray Energy to gather information for the segment and were presented with a letter requiring them to “cease and desist from any effort to defame, harass, or otherwise injure Mr. Murray or Murray Energy,” or face “immediate litigation.” So, “I have to proceed with caution,” Oliver admitted, before comparing Murray to a “geriatric Dr. Evil,” reminding his viewers that the coal titan had already sued multiple media producers, including the New York Times and writers for Huffington Post, and accusing him of “being on the side of black lung,” because of his protests against laws put in place to protect miners’ health.
Oliver also cited a satirical story published in the United Mine Workers of America journal, about Murray’s encounter with a squirrel who said to him, “Bob Murray, you should be operating your very own mines.” At the end of his monologue, Oliver said, “An honest conversation about coal and its miners needs to be had and we should neither cease nor desist from having it,” before acknowledging that, “I know that you are probably going to sue me but… I stand by everything I said.”
Capping off the show was an appearance by a giant talking squirrel, Mr. Nutter Butter, who offered Murray a “cheque for three acorns and 18 cents.”
According to the Daily Beast, the lawsuit, filed on June 21, claimed that Oliver and the Last Week Tonight team “executed a meticulously planned attempt to assassinate the character of and reputation of Mr. Robert E. Murray and his companies.” The complaint cited Murray’s health as a point of concern since he is “a 77-year-old citizen in ill health and dependent on an oxygen tank for survival,” and “does not expect to live to see the end of this case,” and that “nothing has ever stressed him more than this vicious and untruthful attack.”
Yet, the nature of Oliver’s TV show (political satire), the episode’s contents (humor), and Murray’s characterization as a public figure, are a challenge to the lawsuit.
In addition to Abrams explanation of the First Amendment protections that cover political commentary, he also tells The American Lawyer, “That the presentation at issue is phrased humorously is relevant because it assures that obviously exaggerated statements will not be taken literally.” He explains that the story about the talking squirrel “shows precisely how un-literal the material was.”
“First off, in order to win a defamation case, a person has to show that someone made a statement to a third party (like a television audience) that is 1) damaging and 2) false. Additionally, if the person is a public figure, like a CEO who makes television appearances might be, they have to prove 3) actual malice, meaning that the statement was made with knowledge that it was false or reckless disregard for whether it’s true. Oliver’s show may well be damaging, but from what I’ve seen, it all appears to be true, and Oliver has good grounds to base that on, even it turns out he was incorrect.”
In an interview with the Daily Beast, First Amendment litigator at Los Angeles’ Brown White & Osborn LLP, Ken White, calls the lawsuit, “frivolous and vexatious.” Although Oliver’s comments on the Utah mine collapse and Murray’s explanation that it was caused by earthquakes, “could possibly be defamatory, since they involve fact,” he says, “Any core of merit is buried in nonsense.”
HBO is standing by Oliver and his team, as evidenced by its statement, saying, “We have confidence in the staff of Last Week Tonight and do not believe anything in the show this week violated Mr. Murray’s or Murray Energy’s rights.”
As for John Oliver, he returned to the Last Week Tonight stage on June 25 to tell the audience that although he’d like to talk about the lawsuit, HBO’s lawyers advised against it.
“It’s true. We are currently being sued by Bob Murray, CEO of Murray Energy. I desperately want to talk to you about this tonight, but our lawyers have suggested that the court be the venue where we work this out. And I do get that, but I promise we will tell you all about this as soon as it is over. And of course, Mr. Nutter Butter will get his chance to tell his side of the story, too.”
[Featured Image by Charles Sykes/AP Images]