Last updated on February 18th, 2019
In this weeks episode of Law Talk, we take a look at a current free speech controversy. The podcast transcript follows below, as normal. During the episode we mentioned some documents, and a Youtube video. They are posted here, before the podcast transcript.
Jacob Tingen: Okay, welcome to Law Talk with Tingen and Williams, and today, for the first time ever, you are actually talking to Tingen and Williams. I’m here with Ben Williams. He’s a partner in our law firm, and what we wanted to talk about today was to have a little legal fun, because it’s what the world has been having a lot of lately with a recent Last Week Tonight episode. If you’re not familiar with Last Week Tonight, that is a weekly news program by John Oliver on HBO, but it’s also got a pretty strong presence on YouTube.
Several months ago, he had some free speech fun talking about a particular coal executive and there was a talking swirl in the whole deal, and he got sued for it. So, that’s what we’re here to talk about today. So why don’t you say, “Hey” Ben.
Ben Williams: Hey everyone.
Jacob Tingen: So before we jump into that specific litigation case, what can you tell us about free speech?
Ben Williams: Well, I mean, that would be several episodes, I think, to cover the whole First Amendment, but in general, speech is protected. In certain situations it’s a lot more protected than others. And we’ll talk about the specific that applies to the John Oliver case and shows like his, the satirical news programs, The Daily Show, the internet, Fox News. This has been going on for decades. I guess specific to the John Oliver show, it receives very high protections because he’s talking about public figures and matters of public interest that, under the First Amendment, receive the highest protections.
Jacob Tingen: Right. So on that topic, I guess free speech is more important now than ever especially when you look at the news and you hear like our president a lot of times. Fake news, those kinds of things, allegations of fake news. There should be a special place for parody, for news commentary, and so this is the kind of speech that should be protected, right?
Ben Williams: Yeah, absolutely, and I think it’s been shown that it is protected. The case we’ll talk about against … Bob Murray is suing John Oliver. He’s attempted this several times. He’s sued everyone from small Ohio newspapers to, now HBO and John Oliver. I think there’s been almost ten cases where he’s filed lawsuits and they’ve all been dismissed because there’s pretty high protections that come with this kind of speech. Especially when it’s trying to regulate the content of the speech.
Jacob Tingen: Yeah, so now before we jump into the specifics of the lawsuit, what kinds of speech are protected? I know hate speech is flat out, we don’t protect hate speech or speech that is intended to directly incite violence. That’s about it, right?
Ben Williams: Yeah, the rule is just basically everything’s protected unless there’s a specific reason why it’s not. And so, there’s no broad sweeping regulations on speech. It’s more of a case by case basis because it is so protected. It’s the First Amendment. It was obviously very important.
Jacob Tingen: It’s number one. The first one.
Ben Williams: It’s very important and remains very important. So there’s a high bar to banning it. The examples all seem fairly obvious of banned speeches. You can’t yell, “Fire!” In a crowded theater because that’s a matter of public safety.
Jacob Tingen: That’s a good point.
Ben Williams: So it’s more … there’s specific things that aren’t allowed and pretty much everything else is allowed unless there’s a very strong reason for why it shouldn’t be. And in cases like this one, that doesn’t nearly meet the bar to ban speech.
Jacob Tingen: Right, it doesn’t anywhere close to meet the bar. So let’s talk about the case now. And if you’re tuning in, you are listening to Law Talk with Tingen and Williams. We’re here every Wednesday at 11. And you can ask a question on Facebook right directly through the comment section on Facebook Live. You can also call in at 804-477-1720 and we’ll talk to you about pretty much any legal question. Specific practice areas of interest here are immigration, criminal, personal injury, we’ve also done some civil rights cases, Ben and I. So we’re ready to talk to you about anything.
But for now, why don’t we go ahead and jump into the Murray v. Oliver case. So you gave us some background and we’ve already talked about. Last Week Tonight episode, pretty funny, we’ll probably post a link to the video on our website at TingenWilliams.com so that you can watch it and have a good laugh. So basically, Bob Murray sued John Oliver and HBO for protected speech for commentary for telling the truth and doing it in a fun way and calling him a geriatric Dr. Evil. So why don’t we start there. What about being a geriatric Dr. Evil, what about that comment is protected?
Ben Williams: I mean, so first of all, it’s a parody. It’s satire. And honestly, when you the two pictures next to each other, you can kind of see the resemblance along with the quote where he sued an Ohio newspaper for billions of dollar. That’s straight out of Dr. Evil’s playbook. But yeah, I mean, it’s protected. It’s a parody. It’s satire. And really, the truth is always a defense. He wasn’t actually saying, “This guy is Dr. Evil.” He’s saying he appears like Dr. Evil. That could fall under any number of protections, like his opinion.
Jacob Tingen: Well, so let’s see if we can go even further and let’s say he said he was Dr. Evil. That would still be protected in this scenarios, yes or no?
Ben Williams: Yeah it would. Again, you can’t ban someone’s speech because you don’t … because it hurts your feelings and you don’t like what they’re saying. He has a right too, whether it’s his opinion or just parody in general is generally protected. And then, again, he’s talking about a public figure. I think it was President Truman said, “If you can’t stand the heat, get out of the kitchen,” as far as once you’re a public figure you open yourself up to a certain amount of criticism and you can’t pick and choose when you want to be a public figure. You can’t go public to say your opinions and then ban everyone else from speaking out negatively against you. That’s just not how the world works.
Jacob Tingen: All right, so let’s talk about that a little bit on the public figure issue because that has a legal significance, right?
Ben Williams: It does.
Jacob Tingen: So at what point … I’ve never heard of Bob Murray before I watched the Last week Tonight episode, how is he a public figure?
Ben Williams: So for one, he represents a public interest, which is the Coal industry. Another is, he’s on news shows, he’s been on Fox news, he’s a pretty vocal advocate for Coal miners, for President Trump.He’s spoken out about Barack Obama. That’s kind of part of the irony of this case is that he’s been on Fox News and called Barack Obama evil and said he’s never had a job in his life.
Jacob Tingen: Both of which are not true. I mean, President of the United States is a job. So, that’s just absurd.
Ben Williams: Even putting that aside I’m sure he’s had a job somewhere.
Jacob Tingen: Yes, yes he has.
Ben Williams: So he’s opened himself up. He is a public figure whether he wants to acknowledge that or not. I think he went on a couple days after the John Oliver episode aired and denounced John Oliver and said negative things about him. So it works both ways. When you’re a public figure, you just don’t have those protections.
Jacob Tingen: Yeah, so when it comes to speech, public figures like you said, receive less protections than the average Joe. So just if you can give us any indication, what kinds of speech would make someone liable in a lawsuit. Let’s say you’re not a public figure and someone decides to derail you publicly or even privately but just with maybe a smaller group of people. What kinds of things are legally actionable?
Ben Williams: Yeah, so it’s a very narrow definition. Pretty much-
Jacob Tingen: Even when you’re not a public figure because speech is so protected, right?
Ben Williams: Yeah, so the standard is … most courts, I think, is the standard is you have to show actual malice, which is like you knew it was not true and you said it anyway. And it has to be clear and convincing evidence that the things you said were not true, that you knew it was not true-
Jacob Tingen: And there was an intent to harm as well, right?
Ben Williams: And an intent to harm, yeah. And actual damage, actually harm too. So those are all the things you have to show. And the burden is actually on the defendant. So Bob Murray would have to show all these factors to be any kind of liable or defamation suit.
Jacob Tingen: Well, so did Bob Murray show any of that in this potential case?
Ben Williams: No I don’t think so. The case was dismissed pretty quickly. All of his cases have been. One importation thing here is the truth is always a defense. John Oliver and HBO I think were careful because they received a cease and desist letter from Bob Murray before the episode aired just warning him that he would sue. So I think they were prepared for it. And again, I don’t know why he would threaten John Oliver with that because he seemed awfully excited to be able to have this opportunity to go after Bob Murray. Everything he cited in the episode was based on court opinions, news article, actual statements by Bob Murray. They were careful to show the quotations on the screen from the sources they cited. Again, that’s an absolute defense is if something’s true you can’t ban someone from talking about it.
Jacob Tingen: Well let’s get into some of the specifics about what he said. And then, I also, even before we get into that. I kind of want to ask, they got the cease and desist letter, they saw his litigation history. Do you get the sense that they prepared the episode and were so careful about quoting real sources in anticipation that he would sue? Do you think they did it kind of in a way to make sure that they were super clear on this?
Ben Williams: Yeah, I think absolutely. I mean, I’ve seen the Last Week Tonight and John Oliver Show before and I think he relished these opportunities to … it was sort of a dare to Bob Murray to sue him because now we’re talking about him now. Everyone’s talking about him and Bob Murray doesn’t come out looking very great in a case like this.
Jacob Tingen: No, No, he does not look great.
Ben Williams: I think he picked the wrong fight to go after John Oliver and HBO.
Jacob Tingen: Well, so what were some of the things that John Oliver mentioned that this Bob Murray character has done that were reprehensible, or were they a public comment rather?
Ben Williams: So the story in general is on the coal industry and Bob Murray was singled out for his claims that he’s always on the side of coal miner safety and values the workers more than, I guess, the money. And John Oliver picked cases where … accidents that have occurred at mines that Bob Murray’s company’s owned and where some of Bob Murray’s defenses tried to put the blame elsewhere and he opposed some safety standards and just in general, he kind of called out Bob Murray, what his views were versus what his practices actually are. He made a lot of jokes doing it, at one point he said Bob Murray was basically on the side of black lung, which is a big disease for coal miners. So he didn’t really hold back, but he was careful to cite the specific things that had actually occurred.
Jacob Tingen: Right, right. So in the episode, for those of you who haven’t seen it, again we’ll post it with the show notes to this podcast, he talks about there was a mining accident where miners were killed and Bob Murray claims that there was earthquake. Government investigation concluded that an earthquake, a naturally occurring earthquake didn’t have anything to do with the accident and the deaths. And then, like Ben was saying, Bob Murray has stated that he supports miners and miner safety but opposed measures to protect miners and miner safety, which caused some pretty colorful comments from the miners themselves. So any comments on those kinds of issues?
Ben Williams: Yeah, again this is all the stuff that’s happened. And John Oliver is not the first one to say these things, he’s just repeating what others have said and what Bob Murray himself has said. So yeah, there were obvious examples that John Oliver pulled out. Employees or maybe former employees of Bob Murray, where there was a bonus tied into the amount of coal they mined and so it sort of put production over safety, [crosstalk 00:15:14] workers opposed it at the time it was enforces saying it would be dangerous. When they received bonus checks based on their production they wrote back with some colorful language and sent the checks back to Bob Murray. And basically took a stand saying he was more interested in the money than the safety. Again, for HBO and John Oliver to just cite that stuff is not anything against … anything illegal.
Jacob Tingen: Yeah, that doesn’t violate anybody’s, particularly a public figure’s … our right to criticize a public figure and have opportunity for free speech and expression of ideas.
Ben Williams: Again, even, sort of two things is that first he’s a public figure and the also speaking about coal mining as a whole and worker safety, again that’s a matter of public concern, just general public and public welfare and that also is very heavily protected under the first amendment. IT’s one of the highest amounts of protections, so both of those combined-
Jacob Tingen: That’s how society resolved controversial issues is the opportunity to engage in free speech.
Ben Williams: Yeah absolutely.
Jacob Tingen: And over time, society comes to this consensus about it.
Well so, I wanted to just shout out again. If you’re listening, you’re listening to Law Talk with Tingen and Williams. You can call in for free consult. That’s 804-477-1720. We’re here Wednesdays at 11 AM. You are actually on with Jacob Tingen and Ben Williams. We’re available to take questions about any legal topic or you can just ask a question about what we’re talking about right now, this John Oliver case. We’ll take comments on Facebook or phone calls in. And so, we look forward to your questions.
Right now we’re talking about the Bob Murray V. John Oliver case and how it was recently dismissed by a federal judge in West Virginia. And we’re talking about, we’ve covered public figures, how the … if they intend to file some kind of claim against someone who’s spoken against them in some way, that there’s a very high standard that they would need to meet. We’ve discussed actual malice as a legal standard when it comes to defamation kinds of claims and lawsuits.
I want to talk about one of the things from the John Oliver Last Week Tonight episode on coal where he talked about a, as he termed it, apocryphal story about Bob Murray being told by a squirrel to start a coal company. Now again, we already mentioned that John Oliver, it seems, was very careful to point out when something was in a news source and when it was not verifiable. So there’s the apocryphal tail and John Oliver makes a point to say that Bob Murray and his representatives denied that this story ever happened.
Now, people say crazy things sometimes, or believe crazy things sometimes. Maybe a squirrel did talk to him, be believes, or maybe it didn’t. But he’s publicly stated that that didn’t happen, right? But let’s say that John Oliver just said that they’d heard that, they didn’t even fact check it. Are they liable in a world of … when you’re talking about public figures, do you have to fact check everything? Of course, it’s good journalistic practice, but where does this free speech line with public figures, when do you cross it? When is that a danger?
Ben Williams: Yeah, so that’s closer to something he couldn’t say, but again I think it would still be protected. You’re free to say, “I heard,” something, “Someone told me this.” He can’t go on TV and say, “Bob Murray told me that he heard the story from a squirrel and got into coal mining.”
Jacob Tingen: Now, context matters, I mean, it’s a satire news show.
Ben Williams: Yeah, that’s true too. So, that’s the other part of this whole protected free speech is the context. I mean, would people actually believe that John Oliver is saying for certain that a squirrel talked to Bob Murray and told him to get into coal mining? That goes into the analysis sort of and again, I think because of the context of the show and just the satire, the parody of it, I think it’s protected unless … I can’t even really think of exactly what he would have to say to [crosstalk 00:19:58].
Jacob Tingen: Well, where is the actual malice? If that’s what you’ve got to prove is actual malice, where would that be if he’d said he talked to a squirrel? What’s the harm there?
Ben Williams: Yeah, that’s the other issue. Even if it got passed where he knew … most people probably know squirrels don’t talk. So if John Oliver knew for certain a squirrel didn’t tell Bob Murray to get into Mining and he said it anyway, asserted it was true, again it has to be with intent to do harm. Maybe that’s there it could at least damage his reputation. But actually harm, that’s for … I guess a jury would have to decide. They would have to find some evidence that Bob Murray’s reputation was harmed by that statement.
Jacob Tingen: Yeah, so I want to just kind of go through a hypothetical scenario with you of actual malice, or a situation where somebody has defamed someone. Now one of the things you said multiple times is, “the truth is always a defense.”
Ben Williams: Yeah.
Jacob Tingen: I don’t know, this is just a hypothetical that pops into my mind. If you stormed into a room with your friends and someone shouted, “Your wife is being unfaithful!” And your wife is there, and you’re there and all your friends are there. And then you get a divorce and it’s not true, that seems like something that you could have a lawsuit over, right?
Ben Williams: It’s possible.
Jacob Tingen: Because free speech is so protected that that’s not even a clear cut case.
Ben Williams: It’s a difficult issue. It would depend on a lot of things. But just in general, the fact that you don’t like something doesn’t mean the person’s not allowed to say it. That’s the whole basis is that everyone can have their opinion and can voice their opinion. So if, in that case that you mentioned, if you could show they definitely knew it wasn’t true and they said it anyway, it caused actually harm, you might have a case, but I’m not really sure.
Jacob Tingen: Well, so let me just throw another wrench into this hypothetical. Let’s say that it was true. Case or no case?
Ben Williams: Then there’s definitely no case.
Jacob Tingen: Right, because the truth is always …
Ben Williams: Yeah, it’s a defense. The way they say it, you might not like it, obviously no one would want to hear it, but again if it’s true you definitely can’t stop someone from saying it.
Jacob Tingen: Right. So, well let’s take a look at the … did you want to talk about … we met before this and we were looking at some of the different court filings in the Bob Murray V. John Oliver case, and so there’s the motion to dismiss by John Oliver’s team and there was also an amicus brief filed by the ACLU.
Ben Williams: Yeah.
Jacob Tingen: Anything you want to share from that?
Ben Williams: Yeah, it was entertaining if anyone has some free time and want’s to read it. The case is so clearly … was going to be dismissed. Bob Murray does not have a case. So they treated it as sort of a joke. They cited all the cases they needed to cite, but some of their headlines were, “You can’t sue people for saying things you don’t like, Bob.” It was very straight forward, but yeah, so for this case, because it’s so clearly that he just got angry and filed a lawsuit, I mean, it’s sort of entraining because it’s John Oliver and HBO and they kind of thrive on stuff like this. But it’s also sort of concerning, because as they mentioned in his previous cases, he’s sued small newspapers in Ohio for a billion dollars.
Jacob Tingen: A billion dollars, yeah, that’s absurd.
Ben Williams: HBO and John Oliver have attorneys on staff. They can afford legal fees. Suing a small newspaper, they still have to go to court. They still have to file their briefs, they still have to answer the complaints. So this, while this doesn’t … he’s by no means going to win these lawsuits, he’s sort of attempting to chill the free speech by forcing people to actually-
Jacob Tingen: To litigate.
Ben Williams: -defend the things they say. I think that’s why a lot of courts, when cases are so frivolous they have the option to impose fines on the party that filed the lawsuit, reimburse [crosstalk 00:24:47] legal fees-
Jacob Tingen: Right, right. Make them pay the other people’s legal fees.
Ben Williams: Those are important protections. Not so much in this case because it’s HBO and a huge company, but when he starts suing small town newspapers, it can be an issue. So that’s where it’s important underlying all the entertainment and the satire with John Oliver, is this is an important defense and people have a right to say these things and to print these things. It’s important not to forget that just because a rich guy doesn’t like what you say about him that he can sue you and keep you quiet.
Jacob Tingen: Right, and that is really the issue here is that … and John Oliver mentioned this in his show that this Murray guy has a history of trying to chill free speech that he doesn’t like. And you’re right, the ACLU amicus brief … I don’t even know if that was just written and posted on line or if they actually filed that. Did they actually file that?
Ben Williams: I believe it was filed.
Jacob Tingen: You believe it was filed?
Ben Williams: I found it on the court website.
Jacob Tingen: Oh, okay. So anyway, their briefs does take a much more humorous tack than John Oliver and HBO;s brief. They were very serious very workman like. None of their headings ended with “,Bob” like the ACLU’s brief. I mean, it’s humorous. What they have to say is … I’ll just read this. “The presentation was humorous, full of jokes and comedic asides and included a vignette with an actor dressed as a talking squirrel named Mr. Nutter Butter.” How much more ridiculous can it get? And is it really worth your time as a billionaire coal miner, coal executive … is he a billionaire?
Ben Williams: I’m sure he probably is a billionaire.
Jacob Tingen: Yeah, okay, so if he’s not a billionaire, he’s a least a millionaire. Maybe we’d get sued if we said that he wasn’t a billionaire when he was. So let’s just say he’s probably a billionaire, but the presentation was full of jokes and a talking squirrel named Mr. Nutter Butter. Even if you don’t like talking squirrels apparently, there’s not much you can do.
Ben Williams: Yeah there’s really not. His best course, I think, would be to ignore it instead of sort of poking the bear and now John Oliver has this platform to talk more about him and-
Jacob Tingen: Yeah, to highlight these tactics. So an episode that was supposed to be about coal is now about free speech.
Ben Williams: Yeah, yeah. Again it’s just strange that, I think two days after the John Oliver episode Bob Murray was on Fox News and he called John Oliver, I think a “radical elitist,” and he issued a press release. He did the exact same things that he’s accusing John Oliver of doing. Apparently it’s okay for him to say it because he agrees with it and it’s not okay for John Oliver to say things that Bob Murray doesn’t agree with. That’s basically what it boils down to is he hurt Bob Murray’s feelings so he felt he could sue.
Jacob Tingen: Yeah, you can’t sue over hurt feelings unless somebody’s met that actual malice standard.
Ben Williams: Yeah.
Jacob Tingen: And pretty much when it comes to public figures you can virtually say almost anything you want. Maybe there should be some more protection. I don’t know if you’re a celebrity or something and some bad things have happened to you. I completely understand where you’re coming from. But at the same time, we have to weigh and counterbalance the importance of the first amendment to the Constitution and everybody’s free speech rights.
Ben Williams: Yeah, I mean, if you couldn’t say these things the papers, like the national Inquirer and shows like The Daily Show, they’ve been around for decades and they would have been shut down immediately if they weren’t allowed to say things that hurt celebrities and public figures feelings. It’s the reason they exist is because people are interested in public figures.
Jacob Tingen: Yeah, so again, this is Law Talk with Tingen and Williams. You’re on with Jacob Tingen and Ben Williams. We’re here every Wednesday at around 11. And we’ll take free consults. If you can call in at 804-477-1720. You can also just make comments directly into the Facebook feed while we’re talking and we’ll respond to any questions that you have. Today we’ve been talking about this case of Murray V. John Oliver and HBO, a free speech matter. And we’ve just kind of been discussing some of the issues that arise when someone, particularly a public figure, doesn’t like what has been said about them and chose to engage in legal action and the protections that are there.
As we mentioned, the complaint by Bob Murray says the coal story childishly demeaned and disparaged him and poked fun and Murray’s age and appearance generally causing him embarrassment and stress. I don’t feel sorry for a lot of billionaires for their stress and embarrassment. Everybody knows that he’s not actually a geriatric Dr. Evil and that a squirrel didn’t actually talk to him. Although, I guess now a squirrel as after the Last Week Today episode.
Ben Williams: That’s true. It’s more true than it was before.
Jacob Tingen: It’s more true than it was before. So anyway, it’s interesting to know. Like you mentioned, and as John Oliver had mentioned in his show, this is an effort to chill free speech. And this lawsuit, I think, was filed two or three days after the show aired.
Ben Williams: Yeah, pretty soon after. I think when he filed the cease and desist letter be probably had the complaint written up. He was probably ready to sue as soon as the show aired. It seems to be sort of a hobby of his.
Jacob Tingen: Yeah, well, and if he hadn’t even … if they hadn’t sent the cease and desist and just let it roll off their backs, the show probably wouldn’t even have been about him anyway. It was supposed to be about coal.
Ben Williams: Yeah, and that’s sort of why this is more funny to me is he’s asking for all of this.
Jacob Tingen: He is asking for all of this.
Ben Williams: He did John Oliver a huge favor by following this lawsuit, and he does not come out looking very good at the end of it.
Jacob Tingen: Yeah, well, so just to kind of close out, I wanted to look at the court’s order. So they did something unusual, something we can all look forward to. But it says, “As the prevailing party council for the defendants,” So that’s John Oliver and HBO, “shall prepare and forward a proposed order including findings of fact and conclusions of law supporting the court’s ruling.” Now I personally don’t think this is laziness on the part of the judge, I think this is the judge looking at the Last Week Tonight team and thinking, “Well, this should be fun.”
Ben Williams: Yeah, I mean, again, I think because this case is so … was so clearly going to be dismissed and John Oliver is really going to take advantage of this opportunity, I think the judge is interested to see what he’s going to say. Typically, the judge himself, or his clerk, would write the opinion, but again, he’s doing John Oliver a favor and letting him and his legal team craft the legal opinion. So it will be interesting to see how much, if any the judge edits it down or corrects anything in there. It should be an entertaining opinion to read for sure.
Jacob Tingen: Well, we’ll keep an eye out for it and we’ll probably update our website and maybe mention it briefly in the podcast when it does come out. Thanks again Ben for coming on.
Ben Williams: Absolutely.
Jacob Tingen: And we look forward to taking your legal questions and consults in the future. Again, we’re here Wednesday’s at 11. Law Talk with Tingen and Williams. You can comment on Facebook or give us call at 804-477-1720. Thanks and have a great day.