John Oliver: Character assassin?

The June 18 coal industry episode of John Oliver's "Last Week Tonight" covered a number of things Oliver found unusual, including a talking squirrel and receipt of a cease and desist letter from Robert Murray and several coal companies. The group made good on its threat, suing Oliver, HBO, Time Warner and others on June 21 in West Virginia's Marshall County Circuit Court. The 24-page complaint alleges defamation, false light, invasion of privacy, and intentional infliction of emotional distress. Such lawsuits against media entities by their report subjects are all too common.

Defamation laws protect people and businesses from communications that diminish their public reputation or deter others from associating with them. The tort claim of defamation originated from English common laws concerned with personal safety and privacy, protecting against threats of personal or worksite violence and defending merchants from false claims about the title or quality of their goods. Modern privacy torts include intrusion upon seclusion (offensive invasion of privacy), publicity given to private life (offensive publication of embarrassing private fact), publicity in a false light (offensive false statements about a person), and appropriation of name or likeness (using someone's name or image for personal profit). These privacy torts are generally intended to protect ordinary people or businesses from false or embarrassing publicity they may not be able to significantly address due to limited access to mass media resources. They are not, however, limited to plaintiffs of modest resources.

Media companies and other speakers enjoy significant protection from defamation claims via the First Amendment. Over the years, courts have modified common law defamation laws that raise the standards that public figures and officials must meet to prevail on a defamation claim. A "public figure" is a person who thrusts himself to the forefront of a public controversy to influence how the issue is resolved. West Virginia's Supreme Court appears to follow this trend, applying the strict standard of actual malice to overcome constitutional protection. See Harris v. Adkins, 432 S.E.2d 549 (1993), citing New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Murray, and the coal companies to an extent, fit the public figure definition. As shown in the "Last Week Tonight" episode at issue, Murray has been an outspoken representative of coal industry interests. Murray made many public appearances, including on news stations such as Fox News and CNN. In reviewing the brief clips published on "Last Week Tonight," it appears all parties involved appreciably benefit from the defenses provided by opinion, satire, rhetoric and hyperbole.

A criticized entity's objective in filing a defamation lawsuit may focus more on creating a chilling effect on news reporting from other sources than on actually winning the case. Attempts to use litigation to hide, remove or censor speech are not a new phenomenon. The practice of attempting to intimidate or silence criticism through costly and time-consuming lawsuits has been dubbed "Strategic Lawsuits Against Public Participation," or "SLAPP," suits. Such lawsuits are regularly more effective against persons and businesses with limited means, although a high-profile lawsuit can discourage smaller media outlets from reporting a story for fear of being sued.

To address abusive lawsuits attacking the proper exercise of First Amendment rights to speak, publish or petition, some states have created anti-SLAPP laws that provide a procedural mechanism for a quick dismissal if a likelihood of prevailing cannot be shown at the outset. Anti-SLAPP statutes frequently provide for a discovery stay pending the outcome of the motion and allow successful defendants recovery of attorney fees and costs in defending a frivolous lawsuit. Anti-SLAPP laws are meant to limit the financial and emotional costs suffered by non-tortious speakers and can be a disincentive to abusive filings. These rules can pose challenges for those with legitimate claims, particularly in the online context where discovery is often necessary in order to prove the identity of anonymous libelers.

Anti-SLAPP laws could eventually play a role in this lawsuit. Unlike California, West Virginia does not have an anti-SLAPP statute in place. The parties' diversity of citizenship and a likelihood that the amount in controversy will exceed $75,000 strongly indicates the case will be removed from state to federal court and then transferred to New York, where the defendants largely reside. See, e.g., Busch v. Viacom Intern., Inc., 477 F.Supp.2d 764, 772-73 (N.D.Tex.2007) (holding that the forum state was not the "focal point" of a challenged "The Daily Show" broadcast). Should Murray and the coal companies fail to keep the lawsuit in West Virginia, their litigation strategy may need to consider New York's laws. These laws include New York's anti-SLAPP statute N.Y. C.P.L.R. 70-a, which is generally less robust than California's.

There is a countervailing force that Murray and the coal companies face in suing "Last Week Tonight." By striking out against a popular media source, these plaintiffs risk drawing more attention to the information they are trying to suppress. Unintentional publicity from attempted censorship has been dubbed the "Streisand Effect." This is based on singer/entertainer Barbra Streisand's lawsuit against an aerial photographer who included an image of the singer's mansion in a voluminous collection of photographs documenting California's coastal erosion. The photograph had only been viewed a few times prior to the lawsuit and likely would not have received significant attention if left alone. However, press coverage of Barbra Streisand's lawsuit made the photograph a matter of public interest and led to hundreds of thousands of visitors to the website to view the image.

In some ways, Murray and the coal companies are playing into the defendants' hands. This lawsuit's Streisand Effect will significantly benefit the already popular John Oliver and the "Last Week Tonight" show. By becoming news themselves, news commentary and entertainment shows like "Last Week Tonight" get substantial free advertising by a wide variety news reporting agencies covering the lawsuit. This increased publicity helps keep current viewers engaged, can reengage former viewers, and earns the program a measure of public goodwill among its target demographic for fighting censorship and promoting labor issue awareness. Murray and the coal companies may also receive some benefit from the publicity emphasizing their willingness to sue media entities over negative coverage.

It remains to be seen whether Murray and the coal companies will have any luck harnessing growing mistrust of media outlets to secure a favorable outcome to the lawsuit. Regardless of the outcome, the primary benefits of the lawsuit have already been attained.