Hostus Mostus Protected by the Fair Report Privilege and Satirical Statements

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John Oliver, the host of HBO’s show Last Week Tonight, just avoided a major lump of coal.  In June 2017, Oliver aired a segment of the show focused on remarking on the decline of the coal industry.  In the episode Oliver criticized Murray Energy and Robert Murray—one of America’s largest privately-owned coal mining companies and its CEO.  Oliver’s commentary included stating that “[i]f you even appear to be on the same side as black lung, you’re on the wrong f***ing side,” expressing that, “[I]’m not going to say, for instance, that Bob Murray looks like a geriatric Dr. Evil, even though he clearly does,” and having an actor dressed as a squirrel virtually present Murray with a check made out to “Eat shit, Bob.”

Prior to airing the segment, HBO contacted Murray for a comment, to which Murray reportedly replied with a cease and desist letter threatening to pursue legal action.  After the segment aired, Robert Murray, Murray Energy, and other associated coal companies sued Oliver and HBO, claiming that Murray had been the victim of defamation, false light, invasion of privacy, and intentional infliction of emotional distress.  Murray also filed a temporary restraining order to attempt to prevent HBO from rebroadcasting the episode.

Partially Important Productions and HBO (“Team Oliver”), represented by Kevin Baine and Thomas Hentoff of Williams & Connolly, filed a Motion to Dismiss for Failure to State a Claim.  In the Motion to Dismiss, Team Oliver presented two primary arguments.  First, Team Oliver argued that Plaintiffs failed to state a claim for defamation because the statements were protected by the fair report privilege.  The fair report privilege is a qualified privilege that shields the media from liability for their coverage of any official government action or proceeding, provided the report is accurate and either complete or fairly abridged.  The fair report privilege is deeply rooted in public policy and the desire to encourage the press to inform citizens on government affairs.

Second, Team Oliver claimed that the statements could not constitute defamation because they consisted of humor, hyperbole, opinion, and satire.  For a statement to be defamatory, it must constitute an assertion of fact that is capable of being proven true or false.  Humor, hyperbole, opinion, and satire do not constitute statements that can reasonably be interpreted as stating actual facts capable of being proven true or false, and thus, cannot constitute defamation.  In the Motion to Dismiss, Team Oliver emphasized that viewers understand that Oliver’s signature, biting commentary are not objective assertions of fact.  Indeed, Team Oliver specifically stated that no reasonable viewer could have understood an actor dressing up as a squirrel and virtually presenting Murray with a check saying “Eat shit, Bob!” to have conveyed any facts about Murray.

Judge Jeffrey Cramer, determined that Murray failed to show that Oliver had defamed him, and dismissed the lawsuit with prejudice, preventing Murray and his company from re-litigating the matter in the same court.

Following the decision, Murray Energy released a statement that “[t]his decision contains absolutely no legal reasoning, whatsoever, and instead blindly adopts the Defendants’ deeply flawed arguments.  This is a flagrant disregard of the law, the facts, and the substantial damages intentionally inflicted by the Defendants.  Clearly, this decision is detrimental to our employees, who rely on Mr. Murray and Murray Energy for their continued livelihoods, and to our lenders, customers, and suppliers who depend on our integrity and performance.  Accordingly, we will immediately appeal, and we are confident that we will prevail.”

While this lawsuit demonstrates how complicated defamation cases can be, it is also distinguishable from other defamation lawsuits because the fair report privilege applied and the statements were not objectively verifiable facts.  Hutcherson Law understands the defamation law landscape, particularly how to navigate qualified privileges such as the fair report privilege.  If you are involved in a defamation lawsuit and seeking assistance contact Hutcherson Law today!