SLAPP Suits and Anti-SLAPP Laws: A Legal Analysis of John Oliver vs. Bob Murray

[00:00:00]- [Devin] Thanks to Indochino for keeping Legal Eagle in the air and helping me look fly.

[00:00:04](eagle cries out) - The whole point is to put the defendant through a difficult, painful experience, and even if cases fail in lower courts, as they often do, the plaintiffs can find ways to extend them through intensive discovery requests, depositions, and appeals that drain the target's time and resources.

[00:00:20]- John Oliver did an entire episode about some arcane procedural law?

[00:00:25]You better believe I'm gonna respond.

[00:00:26](orchestral music) Hey, legal eagles, it's time to think like a lawyer, because John Oliver spent an entire episode talking about a lawsuit filed against him by Murray Energy and its CEO, Bob Murray, and all of the implications that stem from these kind of speech-stifling lawsuits.

[00:00:47]So, let's dig in deep to this episode of John Oliver and see if it actually holds water or not.

[00:00:52]The background here is that in 2017, John Oliver did an episode about a few coal companies owned by a man named Bob Murray.

[00:01:00]Before that episode aired, Murray and his company sent John Oliver a cease and desist letter.

[00:01:06]And after the episode aired, Bob Murray filed suit for defamation.

[00:01:11]Mr. Murray alleged that John Oliver and his show had defamed him.

[00:01:15]- Comedian John Oliver is the target of a lawsuit by one of the country's largest privately-owned coal companies.

[00:01:21]Oliver strongly criticized Murray Energy Corporation and CEO, Robert Murray, Sunday on his HBO show.

[00:01:26]- Bob had apparently never heard of the Streisand Effect.

[00:01:30]Murray sued John Oliver and HBO in West Virginia State Court.

[00:01:34]Which is important for reasons that we'll discuss in just a moment.

[00:01:37]The case was in litigation for two years, but at the trial court level, it was decided in Oliver and HBO's favor, at the motion to dismiss stage, meaning that no evidence was necessary.

[00:01:48]The court could look at the complaint itself and determine that Bob Murray's claims held no water.

[00:01:54]- It was no surprise when the case was dismissed by the West Virginia judge who heard it last February.

[00:01:58]Now at that point we figured this whole saga was over, right?

[00:02:01]Well, wrong!

[00:02:03]- After the motion to dismiss was granted, Bob Murray appealed, and the case was waiting for a decision from the Court of Appeal.

[00:02:11]In the interim, Murray Energy declared bankruptcy and apparently dropped the appeal, effectively handing the overall win to John Oliver.

[00:02:19]So effectively, John Oliver won at both the trial level and at the appellate level because Bob Murray gave up the appeal.

[00:02:26]The thing is, this was sort of a Pyrrhic victory, because John Oliver claims that HBO spent over $200,000 on their legal defense, some of that was paid for by insurance.

[00:02:37]And now his insurance premiums have effectively tripled despite the fact that HBO was effectively victorious in this suit.

[00:02:44]- To reiterate, we (bleep) won this case.

[00:02:47]- Now of course, this is just one side of this debate.

[00:02:49]This is coming from John Oliver directly.

[00:02:52]But the story definitely rings true.

[00:02:54]There would have been extensive litigation costs here.

[00:02:57]Initially, the case was filed in West Virginia State Court.

[00:03:01]- That is actually where Bob Murray sued us, despite the fact that neither he nor I live there.

[00:03:07]- Then HBO and John Oliver did was called a removal, where the case is transferred from the State Court to the Federal Court in West Virginia.

[00:03:15]For technical reasons, that was remanded back to the State Court case, where the State Court judge held in John Oliver's favor on all counts as a matter of law.

[00:03:26]That's a perfectly reasonable thing to do.

[00:03:28]Effectively, one of the reasons Federal Courts exists in the first place is to be able to adjudicate matters between people that are not residents of the state where the court case was filed.

[00:03:39]And it also makes sense that certain types of insurance would cover some but perhaps not all of the attorneys fees that were raised during the course of that litigation, and really, $200,000 for this kind of litigation might even be on the low end, frankly.

[00:03:56]- We did wonder, what was the point of him putting us through all of this in the first place?

[00:04:02]What I would argue is because winning the case was never really his goal.

[00:04:06]- But what is especially interesting from my perspective is that this most recent John Oliver episode hinges on something called a SLAPP suit, and a law that is in response to those called an Anti-SLAPP law.

[00:04:18]So what is a SLAPP suit and why do Anti-SLAPP laws exist?

[00:04:22]And is John Oliver right that we need a federal Anti-SLAPP law?

[00:04:26]Well I'm so glad you asked.

[00:04:28]First, a little background about the American legal system.

[00:04:31]I'm gonna let you in on a secret about lawsuits.

[00:04:35]So, come in close.

[00:04:37]No, a little bit closer.

[00:04:39]lawsuits are really expensive, and lawyers are also really expensive.

[00:04:44]One of the things about the American judicial system is that we have what's called the American rule, where you pay for your own attorney, whether you win or lose.

[00:04:54]The British rule, in contrast, is where the winner of the lawsuit gets their attorneys fees back, effectively as damages, against the party that lost the lawsuit.

[00:05:04]So under the British system, if you're the plaintiff and you win your lawsuit, then you get to recover your attorneys fees that you paid.

[00:05:11]And if you're a defendant, that effectively defends against an unmeritorious plaintiff suit, then you get your attorneys fees from the plaintiff.

[00:05:20]Now I actually don't particularly like the American rule.

[00:05:24]If I could change one thing about the American system, it might be the fact that you have to pay, generally speaking, for your own attorney, win or lose.

[00:05:32]It leads to plaintiffs who should file suit, but don't because they're worried about even if they win the lawsuit, they won't get enough to pay for their attorney's fees, which can be very very expensive.

[00:05:43]And it also leads to defendants who settle cases when they really shouldn't, because they're worried about how much they're gonna have to pay in attorneys fees, even if they successfully defend against the plaintiff.

[00:05:56]And often, this leads to what I call, nuisance value suits.

[00:05:59]Where defendants just simply settle to avoid having to pay their own attorneys.

[00:06:03]Legislators know that lawsuits are really expensive.

[00:06:06]Legislators are often made up of lots and lots of attorneys.

[00:06:10]So they know in particular how expensive lawsuits can be.

[00:06:14]So both SLAPP suits and Anti-SLAPP laws are intertwined with the fact that sometimes lawsuits can be very very expensive.

[00:06:21]A SLAPP suit is a strategic lawsuit against public participation.

[00:06:26]In other words, it's a lawsuit that is filed to try to stifle someone's public participation.

[00:06:32]Generally speaking, their ability to freely discuss things in the world.

[00:06:37]Because the First Amendment gives you a right to make certain kinds of speech.

[00:06:41]And it prevents the government from intervening in that kind of speech.

[00:06:46]And the judicial system is effectively a branch of the government.

[00:06:49]So a SLAPP suit is where someone files a lawsuit, to try and stifle someone to force them to incur a huge amount of attorneys fees, just having to defend a lawsuit that doesn't have any merit to it.

[00:07:03]The quintessential example of a SLAPP suit is filing a defamation case against someone where they have just simply given their opinion about something.

[00:07:12]Someone leaves a Yelp review and you sue them for defamation when what they said is true or it's just a matter of opinion, which it can't be the basis for defamation.

[00:07:22]So at base, a SLAPP suit is a lawsuit that is meant to punish someone for exercising their free speech right.

[00:07:29]An Anti-SLAPP law generally allows the defendant to fight back against an unmeritorious lawsuit that's just trying to stifle their free speech.

[00:07:36]By, number one, allowing them to dismiss the lawsuit very early, and number two, recouping their fees that they incurred from their attorneys in fighting back against that suit.

[00:07:47]Now the way that an Anti-SLAPP law does this is particularly interesting from my perspective as a litigator and trial lawyer.

[00:07:54]An Anti-SLAPP allows the defendant to shift the burden to the plaintiff early on in the case to provide some evidence.

[00:08:02]This is called requiring the plaintiff to prove a prima facie case.

[00:08:07]Now what happens normally in a lawsuit is that the plaintiff starts the lawsuit by filing something called a complaint.

[00:08:13]The complaint is a pretty bare bone document.

[00:08:16]The standard is what's called notice pleading.

[00:08:18]You just have to put the defendant on notice of the general thing that you are alleging.

[00:08:24]The court will assume that all of the allegations in that complaint are absolutely true.

[00:08:28]Whatever the plaintiff said is true.

[00:08:30]And contrary to what you see on TV, we don't want judges or the court system to get rid of all lawsuits at this very early stage for lack of evidence.

[00:08:41]I see that on TV all the time.

[00:08:42]"Oh there's no evidence in this complaint.

[00:08:43]"Therefore, it has to be dismissed."

[00:08:45]That's not how it works.

[00:08:46]The court will assume everything that the plaintiff said is true at the time of filing.

[00:08:51]Because sometimes, you need to gather evidence during the course of a lawsuit.

[00:08:56]You might not have all of the evidence when you start your particular lawsuit.

[00:09:00]But by the same token, the plaintiff's complaint which contains a bunch of allegations, it's effectively the plaintiff's own story, isn't evidence.

[00:09:09]Contrary to what you might have heard on the internet, plaintiff's complaint is not something that they can introduce into evidence.

[00:09:16]Now sometimes you can attach evidence to the complaints, like a contract, for example.

[00:09:20]That might be an exhibit to the complaint.

[00:09:22]But the complaint itself and the allegations that it contains aren't evidence.

[00:09:26]So when a defendant files what's called an Anti-SLAPP motion, it puts a small burden on the plaintiff.

[00:09:32]It requires the plaintiff to present evidence to the court, just the bare minimum of evidence necessary to raise the inference that the plaintiff could be right.

[00:09:43]This is called the prima facie case.

[00:09:45]If the plaintiff can't put forth that evidence, then the suit is dismissed and the defendant gets to recover their attorneys fees that they incurred in defending that suit.

[00:09:54]So procedurally, here's how most Anti-SLAPP laws work.

[00:09:57]First, the defendant makes the motion.

[00:09:59]And the defendant bears the burden.

[00:10:00]They have to prove that the allegations that the plaintiff has made relate to free speech and that the suit itself might be hindering of the defendant's free speech rights.

[00:10:11]If the defendant meets that burden, then the burden shifts.

[00:10:14]Then the plaintiff must make their prima facie case by putting forward competent evidence.

[00:10:19]Remember, they can get away with filing a lawsuit at the pleading stage without any evidence whatsoever.

[00:10:25]And generally, that'll take you all the way through to discovery.

[00:10:28]But if an Anti-SLAPP is implicated, then at that point, the plaintiff must put forward just a little bit of evidence to prove their prima facie case.

[00:10:35]Now detractors of Anti-SLAPP laws argue that this is unfair for some plaintiffs.

[00:10:40]That it creates a burden on plaintiffs that doesn't really exist in other situations.

[00:10:46]And why are speech related suits worthy of an exception to the general rule that everyone just pays their own attorneys fees?

[00:10:54]Why not, either make that the rule in all cases or get rid of that particular requirement when it comes to SLAPP suits?

[00:11:01]- And Murray is not alone in seemingly using lawsuits to punish and intimidate his critics.

[00:11:06]In fact, one of his good friends has openly called for changes that would make it easier to file them.

[00:11:11]- I'm gonna open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.

[00:11:21]So we're gonna open up those libel laws, folks, and we're gonna have people sue you like you never get sued before.

[00:11:27]- Now I have covered Anti-SLAPP laws on this channel before.

[00:11:30]This is actually an issue that I have litigated many times in real life.

[00:11:33]And it's interesting that John Oliver argued that President Trump, who is a friend of Bob Murray, has filed SLAPP suits in the past.

[00:11:41]Which is arguably true.

[00:11:43]But it's also the case that President Trump has greatly benefited from Anti-SLAPP laws as well.

[00:11:49]In fact, President Trump used an Anti-SLAPP law recently, to his advantage when he recovered a huge amount of attorneys fees.

[00:11:56]You might recall that Stormy Daniels filed suit against the president for defamation.

[00:12:01]And in that suit, Stormy Daniels alleged that she had an affair with the president.

[00:12:05]The president tweeted in response, "A total con job, playing the Fake News Media for Fools, "but they know it!" exclamation point.

[00:12:11]Now according to Stormy Daniels, she claimed that President Trump meant to convey that she was a liar, that she could not be trusted, and she was falsely complaining about crimes that never happened.

[00:12:22]And on the basis of President Trump's tweets, Stormy Daniels claimed that that was false and defamatory and defamation per se.

[00:12:30]Stormy Daniels lost that lawsuit because of an Anti-SLAPP motion by President Trump's legal team, and she ended up being on the hook for 100s of 1,000s of dollars of attorneys fees that President Trump incurred in defending that suit.

[00:12:44]Similarly, another defamation suit that has raised some eyebrows for SLAPP and Anti-SLAPP issues is Devin Nunes' suit against the Twitter handle of the person that's claiming to be the cow of Davin Nunes claiming that that Twitter account was being defamatory and mean to Mr. Nunes.

[00:13:02]Some have speculated that Nunes filed suit in Virginia specifically to avoid California's very robust Anti-SLAPP laws.

[00:13:11]- Pretty much everyone, from judges to legal scholars, agree that SLAPP suits are a scourge.

[00:13:16]That is why 30 states have some form of Anti-SLAPP laws.

[00:13:21]- John Oliver is absolutely right that only 30 states have adopted some form of Anti-SLAPP laws.

[00:13:27]This can be a big issue where videos and TV broadcasts are national and often multiple states have jurisdiction over the particular claim.

[00:13:36]So what we see often is a clever plaintiff can venue shop or jurisdiction shop to get a jurisdiction that is more favorable to that particular plaintiff.

[00:13:46]It's an open question whether Federal Courts will even apply a state-based Anti-SLAPP law, even if the state has an Anti-SLAPP law.

[00:13:54]- When we reached out to Murray last week to review the details that we planned to include in this piece, he wrote a letter back saying we were falsely vilifying him, launching scurrilous attacks, and arguing that none of his lawsuits are SLAPP suits, which they absolutely are.

[00:14:08]- So was John Oliver right that Bob Murray's suit was a meritless suit?

[00:14:13]Well, probably.

[00:14:14]The trial judge threw out Murray's case, and the Court of Appeal probably would have done the same thing.

[00:14:19]But John Oliver understandably doesn't exactly put Murray's argument in the best light possible.

[00:14:24]John Oliver implies that Murray's entire claim was predicated on calling him a geriatric Dr. Evil, and that they had a staff member dressed up as a squirrel and tell Bob to (bleeping).

[00:14:35]- I actually don't even remember that happening.

[00:14:37]Can we just, quickly can we just for a moment, check the tape?

[00:14:40]- It's made out to (audience laughing) Eat (bleeping) Bob!

[00:14:44](audience cheering) - Fair enough, my mistake, we did it.

[00:14:46]It's funny the things you forget.

[00:14:48]- And while it's absolutely true and that did form part of the allegations, that's not everything that Murray actually complained about in the lawsuit itself.

[00:14:55]Murray also claimed that John Oliver, quote "deliberately omitted the facts plaintiffs provided "regarding the Crandall Canyon Mine incident," "intentionally, falsely and outrageously conveyed "that Mr. Murray has no evidence to support "his statements that an earthquake caused the tragedy," "reinforced the impression he gave his audience "that Mr. Murray lied about the cause of the mine collapse "and had no evidence to support his position, "with other thinly veiled implications "that Mr. Murray is a liar in general," and quote, "falsely insinuated that plaintiffs "and Mr. Murray disregarded the well-being "of their employees."

[00:15:28]Those are direct quotes from Bob Murray's complaint.

[00:15:32]So it's perhaps not as cut and dry as John Oliver made it out to seem, but this is not exactly a close case here.

[00:15:38]In West Virginia, the essential elements for defamation are one, defamatory statements; two, non-privileged communication to a third-party; three, falsity; four, reference to the plaintiff; five, fault; and six, resulting injury.

[00:15:52]These are pretty standard requirements for defamation.

[00:15:54]And under West Virginia law, defamation requires a provably false assertion of fact.

[00:16:00]The Fourth Circuit has said that, where it is clear that a speaker is expressing only, quote, "a subjective view, an interpretation, "a theory, conjecture or surmise, "rather than a claim to be in possession "of objectively verifiable false facts," then that speech receives full constitutional protection.

[00:16:17]In other words, opinion and rhetorical hyperbole do not qualify as defamation.

[00:16:22]And courts have used this principle to shelter things like vigorous epithets, rhetorical hyperboles and other, quote, "loose figurative language that cannot reasonably "be understood to convey facts about someone."

[00:16:34]- To fully discuss Bob Murray in a way no reasonable person could construe as factual, we can say whatever the (bleeping) we like.

[00:16:41]- So as the West Virginia court recognized, John Oliver was, one, making an argument; two, making jokes; and three, actually reporting on various things that actually happened.

[00:16:53]And, of course, generally jokes and satirical references are not considered false statements or fact.

[00:16:58]And on top of that, because Murray was a public figure, he would have had to prove that John Oliver made the statement showing that John Oliver knew they were false.

[00:17:07]This is sometimes called the Actual Malice Standard.

[00:17:10]But that's a really misleading term of art.

[00:17:12]Basically, it's just the mental state required to prove defamation when you're dealing with a public figure.

[00:17:17]And additionally, John Oliver relied on the West Virginia Fair Report Privilege, which shields the media from liability for their coverage of any official government action or proceeding, provided the report is accurate, complete, and/or a fair abridgement of the occurrence that was reported.

[00:17:33]Murray's mine collapse was the subject of a governmental investigation, and John Oliver was reporting on that governmental investigation.

[00:17:40]Now of course, there is a hilarious coda to this whole affair.

[00:17:44]And John Oliver kind of gets the last laugh here.

[00:17:47]- I actually have some bad news and some good news for you.

[00:17:50]The bad news is, the last two years have honestly been too exhausting, so I'm afraid, I'm not going to say anything more about Bob Murray tonight.

[00:17:58](audience groaning) The good news is, why would I, when I can simply sing it instead?

[00:18:04]♪ Even though he'll threaten legal Armageddon, ♪ ♪ We have just one tiny thing to say ♪ - For the last third of the entire episode, John Oliver does a song and dance about all of these terrible things that they accuse Bob Murray of doing.

[00:18:23]Oliver spends roughly 10 minutes saying every possible horrible thing that they could against Bob Murray.

[00:18:28]And I get a ton of questions from all of the legal eagles out there who were wondering if John Oliver was going to subject himself to a lawsuit again for saying false things about Bob Murray.

[00:18:39]Well, what you might not have caught is that at the beginning of that song and dance routine, Oliver says that if they say things that are so ridiculous that no one could believe them, that it won't qualify as defamation.

[00:18:52]And that is absolutely right.

[00:18:54]Hyperbole can't really be the subject of a defamation suit.

[00:18:58]And so that's the reason that Oliver says all of these insanely ridiculous things about Bob Murray, and sings and dances about it.

[00:19:08]- Hey, what's the big idea?

[00:19:09]- We're using protected speech to tell Bob Murray to eat (bleeping)!

[00:19:12]- Bob Murray?

[00:19:13]- But the thing is, Murray could always sue again.

[00:19:17]Because there is no national Anti-SLAPP law.

[00:19:20]- We badly need effective Anti-SLAPP laws nationwide, to deter powerful people like Bob Murray, from using the courts to shut down people's legitimate dissent.

[00:19:30]- He could file suit in West Virginia again.

[00:19:33]And Oliver could be subjected to another defamation suit.

[00:19:38]Because, as Oliver probably rightly points out, Murray never wanted to win the lawsuit.

[00:19:44]He just wanted to inflict pain against John Oliver and HBO.

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[00:21:22]So, do you agree with my analysis?

[00:21:23]Do you think we should have nationwide Anti-SLAPP laws or we should just scrap them altogether?

[00:21:28]Leave your objections in the comments.

[00:21:29]And check out this playlist of all of my other real law reviews, including things like the impeachment hearings, where I will see you in court.