By Eriq Gardner

September 22, 2017 - A new dismissal bid poses the "ill-considered lawsuit" from a coal baron as both a violation of the First Amendment and due process.

The fight continues for HBO, defending a defamation lawsuit from Robert Murray and his coal companies over a June 18 broadcast of Last Week Tonight With John Oliver. In August, HBO suffered a setback when a federal judge remanded the case to a West Virginia state court. This week, the pay network began a new round in the court battle with new filings arguing the suit has no business being adjudicated in West Virginia.

Murray's lawsuit contends that Oliver portrayed his companies unfairly in a commentary about President Donald Trump's generous treatment of the coal industry. Specifically, the lawsuit concerns statements about the cause of a deadly 2007 mine collapse, a labor dispute addressed by the National Labor Relations Board, Murray's opposition to a health and safety regulation, and jokes including that Murray looks like "a geriatric Dr. Evil."

HBO and Partially Important Productions — the company behind Last Week — have submitted two motions.

The first challenges a West Virginia court's jurisdiction to hear the matter. The show's producer argues that it has insufficient contacts with the state and that the broadcast was hardly directed there. To force defendants to fight the case in West Virginia, it's submitted, would be both a violation of the state's long-arm statute and due process under the 14th Amendment to the U.S. Constitution.

"Here, Last Week Tonight with John Oliver is directed at a nationwide audience," states the brief. "The show's discussion of the coal industry was directed to a broad audience throughout the country, not specifically at West Virginia. While coal industry activity does takes place in West Virginia, the coal industry spans broadly across the nation. And Plaintiffs' allegation that Last Week Tonight has a 'worldwide audience,' only undercuts any possible inference that the show is 'expressly aimed or directed' toward West Virginia in particular."

For further discussion on jurisdiction, see both the defendant's brief as well as our story earlier this year on Melania Trump's libel suit over The Daily Mail. (That one resulted in the case being moved to New York.) Jurisdictional challenges have become common. For example, here's a similar motion from Breitbart News filed just yesterday in Florida court in a legal action over one of its own stories.

The second motion in the Murray case comes from HBO and parent Time Warner and argues that Murray has failed to state a proper claim for defamation. They say plaintiffs have come nowhere close. According to the brief, "In fact, their complaint disregards long-settled First Amendment and common law protections for the two types of speech challenged here: accurate reporting on government activity, and commentary and satire on matters of public concern."

Murray complains about statements and alleged implications that Murray Energy is sacrificing safety and the health of its employees for profits, but the defendants say such statements about the decade-old mining accident and the company's bonus program "were based squarely on judicial opinions and government reports" and are thus "are privileged as fair and accurate reports of government action and are also protected under New York Times Co. v. Sullivan, and its progeny, which require plaintiffs to plead and prove knowledge of falsity or a high degree of awareness of probable falsity."

With regards to the mining collapse, HBO nods to how Oliver was quoting from, and displaying, a publicly available government report that drew an investigatory conclusion among other things that there was "no evidence that a naturally occurring earthquake caused the collapse."

Murray objects that such a quote was used "out-of-context," to which HBO responds, "If anything, the 'context' that Plaintiffs claim Defendants omitted included findings that were even more damaging to Murray Energy — such as the finding that its subsidiary mine operator GRI 'failed to revise its mining plan following coal bursts … but rather continued to mine coal in areas with unsafe conditions."

As for Oliver's humor, HBO argues that poking fun of Murray's age and appearance and causing him embarrassment and stress hardly eradicates First Amendment protection, especially because none of his satire can be proven or understood to be false.

"The irony of this ill-considered lawsuit is that the coal story featured clips of Murray exercising his own First Amendment rights by vigorously denouncing former President Barack Obama as 'an outlaw' with an 'evil agenda' who 'never had a job,'" states the brief (read in full here). "But, here, Murray calls it 'ruthless character assassination' when a quip described him as a 'geriatric Dr. Evil.' Murray wants his own pedestal to influence public debate, through hyperbole and invective, but not the consequences of his public participation. That is not the way the First Amendment works. Once a plaintiff has 'voluntarily exposed himself to the public eye,' he cannot 'at his will and whim draw himself like a snail into his shell and hold others liable for commenting upon the acts which had taken place.' Murray and the companies he controls are no exception."

The defendants are being represented by Williams & Connolly and Fitzsimmons Law Firm. 

John Oliver