The John Oliver lawsuit should worry anybody who cares about a free press
Here’s the thing about the law—location matters.
John Oliver is being sued by Robert Murray, the head of a coal-based energy company and a recent subject of mockery on Oliver’s Last Week Tonight. The case is set to go forward in West Virginia, where several of the companies technically suing Oliver are based.
This is bad for Oliver. Murray will enjoy home-field advantage in West Virginia despite the best efforts of the lawyers representing Oliver and HBO to move the case to federal court.
And if other recent high-profile cases are any guide, state courts are where media companies can be laid out.
When Hulk Hogan sued Gawker in 2012 for posting a clip of his sex tape, a U.S. District Court tossed the lawsuit pretty quickly. To most in the legal world, it was a relatively clear case of press freedoms based on the First Amendment, particularly since Hogan publicly discussed his sex life semi-regularly.
In a Florida state court, things went very differently. That court, helmed by a judge considered to be a right-wing activist and whose rulings have a tendency to be overturned, was located in Hogan’s hometown. The result was a finding that sunk Gawker, which was the clear end goal of billionaire Peter Thiel, whose personal vendetta drove him to finance the lawsuit.
In wrestling parlance, Hogan effectively forced Gawker to tap out, causing the company to collapse before it could take the case to a higher court. That’s a move Murray, who Oliver called a “geriatric Dr. Evil,” hopes to copy.
Murray is suing Oliver and HBO for defamation for a segment on Last Week Tonight in which the host hurled a variety of insults mixed with facts alongside claims that a mine accident that killed nine people was the result of the company’s practices rather than an earthquake. Murray is a particularly litigious person, having already sued the New York Times.
Oliver’s segment can be found here, and really should be watched in full.
The bad news is that being in West Virginia is good for Murray, as Florida was for Hogan. Like Florida, West Virginia has no anti-SLAPP law, a tool other states have put in place to give defendants a way to fight back against lawsuits much like this one. These legal proceedings can cost heaps of time and money, forcing weaker defendants to settle regardless of the merit of the lawsuits. Anti-SLAPP laws are meant to provide a way out in these cases.
It’s a perfect recipe for a pissed off billionaire to go after someone he doesn’t like and do his best to cause financial burden—even if the case doesn’t end up going the billionaire’s way.
The good news is that this case—at least according to legal experts—won’t get far. First Amendment lawyer Ken White called the lawsuits “frivolous and vexatious.” The American Civil Liberties Union noted in an Amicus Brief filed on the case arguing there’s almost no substance to this lawsuit.
Oliver’s lawyers will look to get the case thrown out before it ever gets to a jury.
“Bob Murray thinks John Oliver was mean to him, and he doesn’t want him to be mean again. While that is sad for Bob Murray, it is unconstitutional for a court to order such relief,” the brief stated.
The lawyer who drafted the brief also felt confident enough to credit her cat with helping check her citations.
Tiffany helped me with the cite checking. #EatShitBob #CatsOfTwitter pic.twitter.com/Z6yrv2omCs
— Jamie Lynn Crofts (@jamielynncrofts) August 1, 2017
There’s still danger. The insults hurled by Oliver won’t end up mattering, but the part about the mine collapse just might prove enough to let the case move forward—and that could be enough to put Oliver and HBO in jeopardy.
Gawker’s not the only media company that has recently been hit by a lawsuit that resulted in major damages. ABC paid out a $177 million settlement over its now-infamous “Pink Slime” report after the case ended up going to trial.
ABC might have won, but with a defendant playing on its home turf to a local jury, big payouts can suddenly seem like a smart business move.
“Say you think you have a 20 percent risk of the jury coming back with a $1 billion judgment, with years of attorney fees for appeal ahead to overturn that award,” said Chip Stewart, a professor of media law at Texas Christian University. “At that point, $177 million starts looking pretty good.”
This is the reality for media companies. Only two things need to go wrong—denial of access to a federal court and a judge that will allow a case to proceed to jury—for a relatively meritless case to result in a major settlement.
In this case, the first thing has already gone wrong, as the case is moving forward in West Virginia. If the judge in the case sees the earthquake issue as enough to move forward, the case could turn to a jury.
Oliver, HBO, and their lawyers will need to hope they can avoid that fate.
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