Suing JOHN OLIVER For Defamation: A Good Use Of Time?

Speaking of occupational hazards, comedians cannot help but irritate people and they do it aplenty. And, for what it is worth, they do get sued by those they piss off. This time John Oliver, host of HBO’s Last Week Tonight, has been sued for defamation by Robert Murray, founder and CEO of coal company Murray Energy Corporation, over statements that Oliver made on his show in mid-June.

So, there we go yet again, along the beaten path, one might say, as another lawsuit is filed against a comedian over what he said on a comedy show. While it may be tempting for those with money and other resources to step out there and try to teach a comedian a lesson, one has to wonder whether such a move is a good use of time in a place like America.

But first, here’s what happened:

On the aforementioned episode of his show, Oliver had a segment in which he knocked the Trump Administration’s efforts to revive the coal industry and portrayed CEO Murray as a guy who had fought against coal safety regulations. He referenced the collapse of one of Murray’s mines in Utah in 2007, in which nine miners were killed plus how Murray falsely claimed that an earthquake was to blame for the disaster even though, as Oliver said, a government report indicated otherwise.

In response, a few days later, Murray sued John Oliver along with the show’s producer Charles Wilson; HBO and parent company Time Warner on the claim that the segment was “false, injurious and defamatory” and that it was based on the show’s biases against the coal industry and the Trump Administration’s coal policies. To support his suit, filed in [coal country ] West Virginia, Murray, whose company is based in Ohio, claimed that the show’s producers were fully aware that a report by a government agency [Federal Mine Safety and Health Administration] supported his own version of the events and yet persisted in running the segment that “intentionally, falsely and outrageously” asserted that Murray’s claim was false.

So, that’s Murray’s defamation case against Oliver. But what are his genuine chances of winning? Well, for starters, defamation involves a false statement of fact that results in injury to somebody’s reputation or standing in the community. Now in defending this case, Oliver appears to have two grounds upon which he can push back against Murray. In other words, he can actually get two bites at the apple.

First, since we are dealing with an alleged false statement of fact, it follows that “truth” is a recognized defense to any defamation claim. And, given the circumstances of this case, one can predict that Oliver will try to play the truth card. Prior to the show episode in question, Murray’s side had served a “cease-and-desist” notice on Oliver’s people demanding that they not run the offending segment. Yet, during the show, Oliver positively scoffed at Murray’s notice, saying, “I know that you’re probably going to sue me, but you know what? I stand by everything I said.” Hmm! Well, so there you have it: Oliver clearly anticipated this lawsuit as well as his likely use of truth as a shield against liability. Translation: “The truth shall set you free…”, as the saying goes.

Then again, what if for some reason the truth defense doesn’t fly. Does it mean Oliver is toast? Not so fast! Now since we’re living in America, he could then move the ball into First Amendment territory, where our nation’s high court has long since held that debate on matters of public policy must be “uninhibited, robust and wide open”. Under the law here, for Murray to win, he has to show that Oliver knowingly made a false statement of fact or that he was reckless as to whether or not the statement was true. This is the so-called “actual malice” standard, which applies to public figures. Now, Murray may not be a public official, but it is hard for him not to be classified as a “public figure” considering a number of factors ranging from his prominent role in the mine collapse controversy and the references to him during official hearings on the matter to his position as the CEO of what is regarded by many as the biggest privately-owned coal company in America. (He would at least qualify as a “limited public figure” and that’s good enough for this purpose.) Besides, this is a debate about an important matter of public policy and concern, namely, mine safety. So yeah, in this lawsuit Murray probably will be deemed a public figure subject to the actual malice test. And there lies a big problem for him because this test  typically is a high hurdle for anyone to clear and, as experience has shown, the analysis here is exactly where these sorts of cases usually meet their Waterloo.

And this is so notwithstanding Murray’s allegation that the show’s producers in pushing their biased version of events were aware of other reports which indicated that an earthquake was responsible for the mine collapse. The thing here is, if Oliver relied on a government report in forming his opinion on the matter, as he claimed, then he cannot be said to have acted with malice, a la reckless disregard of the truth. As a participant in a public policy debate, he was entitled to hold and advance his own opinion, however offensive it may be.

Yet, if all else fails (which is unlikely anyway), Oliver can always say he was just making a joke as (you guessed it!) a comedian. Here, as long as a comedian is understood by his listeners to be making a joke, it makes it that much harder for a defendant like Murray to claim that the listeners are taking the funnyman’s cracks as true statements of fact, especially when we’re dealing with a famous comedian.

Oh, by the way, speaking of making a joke as a comedian, Oliver could also simply decide to play his entire defense backwards from the way it has been presented above. So, he could, for instance, straight up claim that the whole thing was all a joke for the amusement of his listeners. And if that doesn’t cut it, he can then start taking his two bites at the apple as described above, namely, that the offending statements are ‘true” anyhow or, alternatively, that he was just participating in an “uninhibited, robust and wide-open” debate on a matter of public concern.

In the end, there are a couple different ways that Oliver could win this thing. On the flip side, Murray’s odds of winning are quite long indeed. Then again, Murray could be the sort of guy who finds it worth his while to hale Oliver into court and make him sweat some and spend money on lawyers. After all, the statements in his lawsuit suggest that Murray feels wounded by Oliver’s attempts to make fun of his age and appearance. Recall that Oliver also called the guy a “geriatric Dr. Evil,” for added measure. So, given the gigantic odds against him, it is quite possible that Murray might choose to press ahead in this lawsuit because he looks at victory in an altogether different way, however perverse and vindictive that might seem to the rest of us. Otherwise, a lawsuit of this sort against a comedian in a place like America isn’t a good use of time because winning on the merits just isn’t a realistic expectation.

Twitter: #@ocarls

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