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Case 5:17-cv-00088-PB Document 27 Filed 08/02/27 Paye 1 of 17 PagelD #: 948 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA ‘THEMARSIIALL COUNTY COAL ‘COMPANY, THE MARION COUNTY ‘COAL COMPANY, THE HARRISON ‘COUNTY COAL COMPANY, THE OHIO ‘COUNTY COAL COMPANY, MURRAY ENERGY CORPORATION, and ROBERT E. MURRAY, Civil Action No: 17-ev-00099 Hon. Job P. Bailey Print, JOHN OLIVER, CHARLES WILSON, PARTIALLY IMPORTANT. PRODUCTIONS, LLC, HOME BOX OFFICE, INC., TIME WARNER INC., AND DOES Ithrough Defendants PROPOSED. 1S CURIAE OF THE AMERICAN CIVIL, LIBERTIES UNION OF WEST VIRGINIA FOUNDATION IN OPPOSITION TO ELAINTIFES’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND IN IPP SMISSAL AND RULE 11 SANCTIONS Case 5:17-cv-00099-JPB Document 27 Filed 08/02/17 Page 2 of 17 PagelD #: 949 ‘TABLE OF CONTENTS. 1. Inerest of Amicus Curiae & Required Disclosures vet Il, A Briet History of Paintifs' Atempts to Chill Speech by Abusing the Legal System. . ‘A. Plaintiffs Frequently Abuse the Legal System to Attack Protected Speech, 2 B. The Ridiculous Case at Hand. ee) UL. Anyone Can Legally Say “Eat Shit, Bob! ones s ‘A. Plaintiffs’ Motion fora Temporary Restraining Order is Ridiculous, Courts Can't Tell Media Companies How to Report, Bob. rn |. All of John Oliver's Speech Was Protected by the First Amendment. You Cen’t Sue People for Being Mean to You, Bob. 5 2,_ Plaintiff's Requested Injunction is Clearly Unconstitutional. You Can't Get a Court ‘Orler Telling the Press How to Cover Stories, Bob. s B. The Court Should Dismiss This Action & Assess Sanctions IV. Conclusion. Case 5:17-cv-00099-JPB Document 27 Filed 08/02/17 Page 3 of 17 PagelD #: 950 ‘TABLE OF AUTHORITIES Cases Alexander . United States, 509 U.S. $44, $50 (1993). “Arrington v. Palmer, 971 P2669 (Colo. App. 1998). Cabell. Petty, 810 F.2d 463, 466 (4th Cir.1987). Connick v. Myers, 461 US. 138, 145 (1983). : Cax Broae! Corp. v. Cohn, 420 US. 468, 489-90 (1973)... Crump v. Beckley Newspapers, In, 173 W. Va, 699, 699 (1984) .. aa Desert Sun Pub. Co. v. Superior Court 158 Cal, Rpt. $19, 21 (Cl. App. 1979)... ‘Doe v. Goazales, 386 F. Supp. 24 66, 75 (D. Coan. 2005) ern FCC y, Pesfca Foundation, 438 U.S, 725, 745 (1978) Fletcher v.San Jose Mercury News, 264 Cal, Rpt. 699, 708 (Ct. App. is, Garrison. Louisiana, 379 US, 64, 74-75 (1968), Gertz Robert Welch, Inc, 418 US. 323 (1974).. Hustler Magazine v, Falwell, 485 U.S, 6, 51-52 (1988). Inve Char‘one Observer, 882 F.24 850, 855 (ath Cit. 1985). Inve Kunster, 914 F.2d 50S, 522 (th Cr. 1990). Milkovich . Lorain Journal, 497 US. |, 14,16 (1990) ‘Moore v. City of Kilgore, 877 F.2d 364, 380 (Sth Cir. 1989). ‘Murray Erergy Holdings Co. v. Bloomberg, No. :15-CV-2845 (S.D. Ohio June 17, 2016). ‘Murray Erergy Holdings Co. v. Mergermarket USA, Ine., No. 2:15CV-2844, 2016 WL 3365422 (SD. Obio June 17,2016) 2 Murray v. Chagrin Valley Publishing Co,25 NE.3d 1111 (Ohio Ct. App. 2014). 2 ‘Murray . Knight-Ridde, In, No. 02 BE 45, 2004 WL 333280 (Ohio Ct. App. Feb. 18,2004). 2 Murray v. Moyers, No. 2:14-CV-02334, 2015 WL 5626509 (S.D. Ohio Sept. 24, 2018) cum 2 Murray v,Tarley, No. C2-01-693, 2002 WL. 484537 (S.D. Ohio Feb. 21, 2002) ewes 2 Murray v. The HuffngronPost.com, Ine, 21 F. Supp. 36879 (S.D. Ohio 2014), 210 (Org. for a Betier Austin . Keefe, 402 US. 415, 419 (1971), a) Rankin v. MePherson, 483 US, 378, 87 (1987) 7 ‘Snyder v. Phelps, 2 US. 443 201 ones 8 ‘Sweet v. New York, 394 U 8. 576, 92 (1969). ve Texas». Johnson, 491 US. 397 (1988) 47 Other Authorities Coal Operutr Sues Beacon Jounal Over Portrayal of Him in Article, ATHENS NEWS, (Ja. 29, 2001), 7 Jonathan Pers, A Coal Magnates Latest Lawaut Was TossedBut Ohio Can Do More o Defend Free Expression, Columbia Journalism Review (May 28, 2014),. tama Cro Cont Hillary Clitos Comment About Coa! obs, ait iy 10, 2016), 7 ft . Case S:47-cv-00088-JPB Document 27. Filed 08/02/17 Paye 4 uf 17 PayelD #981 Matthew Wisner, Robert Murray on Jol Oliver: Radical Elitists’ Broadeast Operative, Fox Mike Maonick, Bob Murray's Lawsuit Against John Olver ls Even Sllicr Than We Expected, Tech Dist June 23, 201) wenn ai 7 5 Pierre Pavia, Dr Evil in I Milion Dollars, YOUTUBE, (ul 11, 2008). “7 Police Dep't of Cty of Chicago v. Mosley, 408 U.S. 92, 95 (1972) 9 United States Census Bureau, Quick Facts: West Virginia, hrepss/www-census.gov/quckfaciWV (last visited Aug. 1, 2017) (estimating the West Virginia population to be approximately 1,831,102 as of July 1, 2016) alia United States v. Playboy Enum't Group, 829 US. 803, 818 (2000)... 9 Rules Fed, R.Civ.P. 1200X6) 2 Federal Rule of Civil Procedure 290. See Constitutional Provisions US, Const, amend. Ln W.Va. Const. art I, § Tons Case 5:17-cv-00099-JPB Document 27 Filed 08/02/17 Page 5 of 17 PagelD #: 952 L. Interest of Amicus Curiae & Required Disclosures. The ACLU-WV is a nonprofit, nonpartisan organization dedicated to the principles of livery and equality embodied in the United States Constitution, the West Virginia Constitution, ‘and cur nation’s civil rights laws. The ACLU-WV has long bees dedicated to protecting the ffeedom of speech enshrined in the Fist Amendment othe United State Constitution and Aricle Seton 7 ofthe West Virginia Constitution. The ACLU-WY is requesting permission to file this bre sceordance with Federal Rule of Civil Procedure 29(), This rif was authored by staff counsel forthe ACLU-WV and no party, party's counsel, or ofver person authored any parts ofthe brit or contributed money intended to fund preparing o submitting the brief Pains ar attempting to use this Cour as vehicle to chill protected speech and silence ‘he marketplace of ideas, Forte following reasons, the American Civil Liberties Union of West Virginia Foundation (*ACLU-WV") respectfully requests the Court deny Patti? Motion fora ‘Temporary Restraining Order and Preliminery Injunetion (*P.'s Met”) [Docket 1-1} and issue an ‘Onderto Show Cause as to why this case should not he dismissed ard Plaintiffs sanctioned TL, A Brief History of Plaintiff Attempts to Chill Speech by Abusing the Legal System, shout Plain? Robert E.(Bob") Murrey not iting television progrem and Sometow believing that isa legally actionable offense. On June 18 2017, Defendant Home Box Ofc, In, aired an episode of “Last Week Tonight with John Ost: asaiial news program shout current events. The main topic discussed inthe episode was coal. Apparently because Plain" deicate sensibities were offended, they clutched their pearls an filed this suit, Although this bret pokes fun a he absurdity ofthis case, th legal issues ised by it are anything but comical. This lawsuit, and Plaintiff" frequent attempts to use our legal system to ‘hill speech, threaten the fundamental right of the media to criticize publie figures and speak ‘candicly on matters of public concern. Speech on a matter of public concem “occupies the highest Case 5:17-cv-00099-JPB Document 27 Filed 08/02/17 Page 6 of 17 PagelD #: 953, rung ofthe hierarchy of First Amendment values, and is entitled to speech protstion.” Connick. Myers, 461 US. 138, 145 (1983). A. Plaintiffs Frequently Abuse the Legal System to Attack Protected Speech, tis abasic concept of re speech that you donot get to sue media orginizatons because ‘you don't ike thee coverage, However, thisis apparently a difficult consep for Plaintiffs to grasp. |Wappears that Bob Murays favorite hobhy i suing andor threatening to sue people for making poliel statements he disagrees with. See Murray v.Tarley, No, C2-01-693,2002 WL 484537 (SD. Ohio Feb. 21, 2002) (dismissing defamation ation); Murray v. Knigh- Ruder, In, No. 02 BE 45, 2004 WL 333250 (Ohio CL. App. Feb. 18, 2008) (same), Murray ¥. The Huffington? osicom, In, 21 B. Supp. 34879 (S.D. Ohio 2014 (sume); Murray. Chagrin Valley Publishing Co., 25 N-E34 1111 (Ohio Ct, App. 2014) (affirming iss Murray v. Moyers, No, 244-CV-02334, 2015 WL $626509 (S.D. Ohio Sept. 24, 2015) (dismissing defamation claim); Murray Energy Holdings Co. v. Mergermarket USA, ine, No, 2:15-CV-2844, 2016 WL 3365422 (S.D. Ohio June 17,2016) (sae); Murray Energy Holdings Co». Bloomberg, No, 2:15- (CV-2845 (S.D. Ohio June 17, 2016) (same); Jonathan Peters, A Coal Magna’ Latest Lawsuit ‘Was TossedBut Ohio Can Do More to Defend Free Expression, Columbia Journalism Review (May 28, 2014), htpufrchives jr orpunited states projectmuray energy defamation lawsuis_ulfington_post php). After this long list oF loses in Ohio, it appears that Bob Muay has now decided to try his lick with abusing West Virginia's cour system, B. The Ridiculous Case at Hand. Plan claim doesnot come clase o stating a claim upon which relief ean be granted. ‘See Fe R. Civ. P.12(9{6). Among the myrisd of etiely legal activities contsined in Plaintiff? petty list of grievances are the following: Case 5:17-cv-00099-JPB Document 27 Filed 08/02/17 Page 7 of 17 PagelD #: 954. ‘+ Defendants attempted “to advance ther biases against the coal industry and their disdain forthe wou-relsted policies of the Trump Administration.” Compl. (Docket I!) 83 ‘+ Defendants “employed techniques designed solely to... embarrass Plintifs[]" Jd. at YS ‘+ "Defendants childishly demeaned and disparaged Bob Murray and his companies, made jokes about Bob Murray's age, health, and appearance, [end] made light ofa tragic mining ecient” Ta '+ "Defendants are persons and organizations fundamentally opposed to any revitalization of the coal industry, having desribed coal as environmentally catastrophic.” [dat 18 + Defendant Time Warners widely reported asa top ten donor of Hillary Clinton)” Id + “Asa presidential candidate, Mrs. Clinton's agenda was to ‘pu a Iota (sc) coal miners «and coal companies outa [sc] busines." Jd! ‘+ “Defendants broadcasts have vigorously supported and advanced Mrs. Clinton's agenda.” Idagis. ‘Instead of focusing on what Plaintiffs wanted him to talk about, Defendants “ignored them and ‘doubled-down’..., ending their recorded broadcast with the phrases “Eat Shit, Bob" and “Kiss my ass, Bob Fl. at 2. + “Defendants deliberately omitted the fists Plaintiffs provided regarding the Crandell Canyon Mine ineident" Ie a 37. ‘+ "Defendant Oliver quoted from the sweeping executive summary of [an] MSHA report, which obviously and grossly overstated the actual conclusions contained in the MSHA, report, which Defendants easily would have seen upon a cursory review of the actual MSHA report." Id. at 40 ‘+ "Defendants. aired a clip of congressional testimony ofa relative of a former employee ‘of Murray Energy that appeared to be dissatisfied with Bob Muray's handling of the ‘Crandall Canyon Mine collapse." Id. at 42? "Astourtingly, despite complaining tat Las Wek Toaight“auoed aoa conten sit roma singe repo” ‘ee Conf (Doce - w'}39) ee Pas eavela only waa poron oF ge one i aseening St ‘te mislod the cout andor pui.Compore Compl. [Docket -] a9 18 wih Lauren Carel In Comet Hl ‘Ginn Corments About Coa! ob, POLSTACT (May 10, 2016), hp pose conlavomelertle ‘tina eorex stintonecommest abou elo. 2 Phin’ alegasion that Defendants should ot have quote det from the consuson of noi MSHA er congressional testimony, the validity of which they do at pte, pareunryoarageoe, 3 Case 5:47-cv-00088-IPB Document 27 Filed 08/02/17 Paye 8 uf 17 PayelD #: 955. * i trae Bob Mary's ll fan em toy ht Bob Muy cine & ire told him he should operate his own mines, Defendant Oliver stated "You know ‘wt, actully believe Muay on tha ong” and “Even by your standard, that would be a pretty ridiculous thing to say." lat $44. ‘+ “Defendant Oliver. .. filed to mention, despite having the information, that Bob Murray has pioneered Emergency Response and Fire Suppression Training inthe coal industry.” Ma. at $50. + "Defendants {described} Bob Murray as someone who ‘looks like a geriatric Dr. Evil! and arranging for a staff member to dress up in a squirrel costume and deliver the message “Eat Shit, Bob!” to Bob Murray. eat 5 + “[Alfer the live taping, Defendant Oliver exclaimed tothe audience that having someone ina squirrel costume tell Bob Murray to ‘Eat Shit’ was a ‘dream come true." dat 52 ‘+ *Defendant Oliver stated Bob Murray, I didn't really plan for so much of tis piece to be about you, but you kind of forced my hand on that one," Id. at 53. ‘What Plaintiffs apparently Ito realize is that, even if allo this is te, they do not allege Defendants id anything illegal. “The expressive, overly political ature ofthis conduct was both intentionaland overwhelmingly apparent.” Texas» olson, 491 U.S. 397, 406 1988). lroscally, the Complaint outrageously claims that Defendants “stacked [Bob Murray] in 2 forum inwhich he had no opportunity to defend himself, and s he has brought this sult to ty to set the record straight" Compl. [Docket -1}, at 2 In dret contravention to this claim, Paint? Murray Energy sent out «press release about the ease the very day it ws filed See Def's Mem, x F [Docket 14-7]. Two days ate, Bob Murray was on nation television calling John Olivera “radical ets.” Matthew Wisner, Robert Murray on John Oliver: Ratlical Elitists" Broadcast Operative, FOX News, htp:/hwwfoxbusiness.comi/feturs/201710623/robert-muray-on jhe liverradicalelitists-broadeastoperatve hil. No other opportunity to defend himself, indeed. > Evan is allowed have creas, Case 5:17-cv-00099-JPB Document 27 Filed 08/02/17 Page 9 of 17 PagelD #: 956 ‘The Complaint also interestingly eli hat “nothing has ever stressed (Bob Murray] more than [Joba Olives] vieious and untatful stack.” Compl [Docket I+} at 5. As one media cute asked, “she really saying that late night British comedian ona premium chennel has caused him more stress than the time thet one of his mines collapsed and killed group of his employees? Ifso.. that's... weird” Mike Masnick, Bob Murray's Lawsuit Against John Oliver 1 Even Sller Than We Expected, TECH DIRT (une 23, 2017), pswanwtechdin.comfatcls! 20170622/18172937648oob-murrays-lawsut-aginstjohn-oliver-is-evensillershan-we- expected sim MIL Anyone Can Legally Say “Eat Shit, Bob!” ‘This casei beyond meritless. is offensive tothe very ideals of fre speech embodied in the Fist Amendment. The fact that Paintifs filed this case is rdieulous enough; but, to pour ‘gasoline on the ire, plaintiff counsel hs also filed a motion asking the court to make John Oliver ‘not say mean things about him anymore See P's Mot. [Docket II]. It is frankly shocking that Plaintiffs were able to find artomneys willing to lea lawsuit that sso obviously unconstiitonl Itisapt that one of Pi tif objections tothe show is about a human-sized squirrel named. Mr, Nutterbuter, because this case is nuts. Which also begs the question: is Me. Nutterbutter one ofthe 50 Doe Defendants included inthis action? A, Plaintits' Motion for a Temporary Restraining Order is Ridiculous. Courts ‘Can't Tell Media Companies How to Report, Bob. 4, Allof John Oliver's Speech Is Protected by the First Amendment. You Can't Sue People for Being Mean to You, Bob. Pla ntfs do not come close to stating an actionable claim. Defendants aired a brosdcast about a mater of public concern that is undoubtedly protected by the First Amendment. It i sxiomatic that “the First Amendment to the United States Constitution placed limits on the Case 5:17-cv-00099-JPB Document 27 Filed 08/02/17 Page 10 of 17 PagelD #: 957 application ofthe tae law of defamation” and in particular on “the typeof speech which may be the subject of stats defamation actions.” Milkovich v, Lorain Journal, 497 U.S. 1, 14, 16 (1990) ‘The Complain itself makes it clear that Defendants speech was about matters of public concern, as it repeatedly alleges that Defendants’ broadcast this episode to advance thei political agenda. “[Slpecch conceming public affairs is more than self-expression; itis the essence of self government." Garrison v. Lousiana, 379 US. 64, 74.75 (1964). As such, Plaintiffs" mus: llege “actual malice” inorder to maintain a claim for defamation. Cax Broad, Corp. v. Cohn, 420 US. 469, 489-90 (1975). As discusted above, “Last Week Tonight” isa satirial show about real news that uses ‘comedy and strong language to mak its points The segment Pints object to begins wih John Oliver refering 1 coal as, “Basically cocsine for Thomas the Tank Engine.” See Unsfficial ‘Transcript, attached as Exhibit A, at 1. Additionally, Bob Murray objects to being compared to De. Evil,acomiclvillin inthe Austin Powers movie series and Mr, Nuterbuter, the talking squire. Obviously, ny “reasonable person would elie that such communication are the type oferta commentary typi fled wit political innuendo and should ot be taken at face vale viewed 84 satement of fact" Arrington». Palmer 971 P2669, 671-74 (Calo. App. 1958) Onions, too, are protected speech, and “[uder the First Amendment, there ino such thing as fal ide, However persis an opinion may seem, we depend forts correction not on the conscience of judges and juries tt on the competition of other ideas.” Gert v. Robert Welch, Inc., 41 US.323, 339-40 (1974), Its imelevant that Bob Murray apparently finds this protected speech offensive. “f there ia bedrock principle underlying the First Amendment, itis thatthe government may not grobibit the expression ofan idea simply because society finds the idea itself offensive of disagrecable.”

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