By Alison Frankel
August 9, 2017 - Rarely does any legal filing, let alone an amicus brief, receive the kind of adoring media coverage that embraced the West Virginia ACLU’s brief last week in Murray Energy’s libel and defamation suit against John Oliver, host of a weekly satirical news show on HBO. The snark-infused, anti-Murray brief, variously described as stone-cold hilarious, awesome, super salty (and vulgar), practically begged for a response from the company and its CEO, Robert Murray.
On Monday, Murray picked up the ACLU’s gauntlet, arguing in a brief in federal court in Wheeling, West Virginia, that the civil liberties group should not be allowed to appear as an amicus in the Oliver case. Murray’s most substantive argument: The ACLU, according to Murray, “failed to disclose its indisputable and disqualifying bias,” an alleged economic motive to back John Oliver and his co-defendants.
“In November of 2016,” Murray’s brief said, “Oliver used ‘Last Week Tonight with John Oliver’ to encourage viewers to donate to numerous left-leaning organizations, which - not surprisingly - resulted in an immediate surge of millions of dollars in donations to the ACLU.” Oliver’s campaign, Murray claimed, meant that the ACLU wasn’t being straight with the court when it said no one in the Oliver camp had funded its amicus filing.
The only problem with that argument? Oliver never called on viewers to donate to the ACLU.
His Nov. 13 show did indeed ask viewers to open their wallets for nonprofits opposed to President Donald Trump’s agenda. Depending on which of Trump’s campaign promises they were most worried about, Oliver said, they should give money to Planned Parenthood, the Center for Reproductive Rights, the Natural Resources Defense Council, the International Refugee Assistance Project, the NAACP Legal Defense Fund, the Trevor Project for LGBTQ youth or the Mexican American Legal Defense and Education Fund. Notably absent from that list: the ACLU. Oliver didn’t even mention free speech or civil liberties in his recitation.
Murray’s brief cited three news articles to back its assertion that the ACLU benefited from Oliver’s call for donations. None of the articles supported Murray’s theory, attributing the influx of ACLU donations not to Oliver’s show but more broadly to Trump’s election. One of the news stories Murray cited – ironically, from the New York Times, which Murray has also sued for defamation – opened with a mention of John Oliver's call for contributions to anti-Trump groups, but specifically said ACLU contributions surged in response to a post-election statement the group issued. Neither the Times nor Time magazine reported that ACLU contributors were inspired by the John Oliver show.
To be totally clear, Murray’s brief does not say outright that Oliver told viewers to contribute to the ACLU. But it said Oliver's urgent call for donations from his audience resulted in a surge of contributions to the ACLU – yet its filing does not provide evidence to support that link.
Let’s backtrack so you understand the background of the case. On June 18, John Oliver’s Sunday night show centered on the coal industry. It’s no mystery why Murray didn’t like the show. Oliver described miners’ safety concerns about a Murray bonus program, displaying voided bonus checks from Murray miners who wrote, “Eat shit, Bob” and “Kiss my ass, Bob,” in a reference to the Murray CEO.
Oliver also reported on Murray’s controversial response to a deadly mine collapse, and, on a lighter note, recounted an apocryphal tale about how a squirrel inspired Murray to start his company. (As Oliver reported, Murray denies the squirrel story.) After conceding that Murray has created thousands of jobs in mining communities, Oliver closed the segment with an actor wearing a giant squirrel costume, dubbed Mr. Nutterbutter, waving an oversized check made out to “Eat shit, Bob.”
Murray, CEO Bob Murray and other plaintiffs sued Oliver, HBO, TimeWarner and other defendants in state court in West Virginia. The defendants removed the suit to federal court, where Murray filed a motion for a temporary restraining order to block HBO from re-airing the Oliver show on the air or the Internet.
A persistent libel plaintiff, Murray claims Oliver defamed the company by, among other things, deliberately misrepresenting its concern for its workers. According to Murray, Oliver’s viewers have besieged company employees with angry, profane calls and emails that have disrupted business operations and damaged Murray’s reputation. Murray family members have received threats, the company said. Bob Murray himself, according to the company, has declined in health because Oliver’s show continues to provoke undeserved disdain for him and his company from new viewers.
As you would expect, Oliver, HBO and the other defendants opposed Murray’s motion, which they called an unconstitutional attempt to suppress free speech. The U.S. Supreme Court, the defendants pointed out, has never upheld the sort of prior restraint Murray is seeking, and both the U.S. and West Virginia Supreme Courts have warned that such free-speech restraints can only accord with the First Amendment in extraordinary cases involving, say, matters of national security.
On Aug. 2, the West Virginia branch of the American Civil Liberties Union requested permission from U.S. District Judge John Bailey of Wheeling to file an amicus brief backing Oliver and the other defendants. No surprise there – the ACLU is famous for defending free speech rights. But the brief was unusually sassy, mocking Murray and its CEO for suing over a broadcast just because their “delicate sensibilities were offended” when Oliver was mean to them.
Section headings included “You Can’t Get a Court Order Telling the Press How to Cover Stories, Bob,” “Anyone Can Legally Say ‘Eat Shit, Bob!’” and “A Brief History of Plaintiffs’ Attempts to Chill Speech by Abusing the Legal System.” The ACLU even called for Judge Bailey to order a hearing on sanctions against Murray.
“It is frankly shocking that plaintiffs were able to find attorneys willing to file a lawsuit that is so obviously unconstitutional,” wrote ACLU-WV lawyer Jamie Lynn Croft. “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.”
As the cheeky brief caught fire on social media and eventually won notice in the mainstream press, Croft tweeted that it is “the most fun amicus brief ever.” She told me Tuesday that the brief’s celebrity was probably why Murray filed its opposition – a rare occurrence in her three-year tenure at the ACLU, she said.
Croft flatly denied that anyone paid her group to support John Oliver and his co-defendants. At the time I talked to her, neither of us realized that Oliver hadn’t actually even asked viewers to contribute to the ACLU, but Croft said any Oliver-inspired donation would be irrelevant because it would have been unrelated to the amicus filing. She also said it was “a little crazy” for Murray to paint the ACLU as biased for backing free speech. “We support free speech rights for everyone!” Croft said. “Including people we disagree with.”
Murray senior corporate counsel Gary Broadbent said in an email response to my detailed email request for comment that the company had no statement beyond its filing. Murray outside counsel from Grove Holmstrand & Delk did not respond to a phone message.
Oliver and the other defendants are represented by Williams & Connolly and the Fitzsimmons Law Firm.