Geriatric Dr. Evil v. Mr. Nutterbutter (or defamation involves more than someone being mean to you, Bob.)

During the publication of “Dynamics of News Reporting and Writing,” I frequently told the people at SAGE to avoid using color, images or whatever else because, “It’s not worth it to waste money on me.”

The only time I begged them to waste money was for a photo of a giant talking squirrel that was insulting a coal baron.

Comedian John Oliver spent part of a “Last Week Tonight” episode talking about the coal industry. During much of that, he mocked coal magnate Bob Murray, saying he looked like “a geriatric Dr. Evil” and stated that Murray placed his miners in unsafe conditions. He also made fun of Murray for once supposedly saying a talking squirrel once told him he should start owning coal mines. The episode concluded with a costumed staffer called Mr. Nutterbutter the Squirrel presenting Murray with a novelty check for three acorns and 18 cents.

While doing all of this, Oliver even called out Murray’s litigious nature, explaining that he knew Murray was likely to sue him, but he stood behind everything he said. Murray, who has sued numerous media outlets before for unflattering coverage, took the bait and sued Oliver for defamation, false light and more.

The minute this happened, I desperately wanted to include an image of Mr. Nutterbutter in the book, because a) I’m clearly crazy and b) it was the perfect example for the law chapter of how there is a distinct difference between defamation and just saying things people dislike. (I ended up with more of a stock image of Oliver, but hey, I’ll take it.) The court made that distinction clear this week saying that none of this was defamation and it would be dismissing the case against Oliver. Murray has already stated he plans to appeal the court’s decision.

(Perhaps the greatest filing in the history of our legal system came in the form of an amicus brief from the West Virginia ACLU, which includes the amazing heading of “Anyone Can Legally Say, ‘Eat Shit, Bob!'” Feel free to read about it here.)

This is not the first time someone has tried to bully a media professional through the use of the court system. Washington football owner Dan Snyder sued the Washington City Paper after it published “The Cranky Redskins Fans Guide to Dan Snyder” in 2010. Snyder’s legal team first approached the paper’s parent company with what amounted to a “cease and desist” letter. In it, the attorney made such “legally compelling” statements as these:

Can you imagine how you would react if your wife was battling breast cancer and her public role as the National Football League’s national spokesperson on breast cancer awareness was demeaned as a mere public relations ploy to “sell” the “transformation” of her husband’s public image?

Your paper’ s latest diatribe comes on the heels of more individual columns concerning Mr. Snyder than any other news outlet in the city has written about any single businessman in Washington, perhaps ever.

Mr. Snyder has more than sufficient means to protect his reputation and defend himself and his wife against your paper’s concerted attempt at character assassination. We presume that defending such litigation would not be a rational strategy for an investment fund such as yours. Indeed, the cost of litigation would presumably quickly outstrip the asset value of the Washington City Paper.

In case you need a rough translation here, the letter basically says, “You are being really mean, you do it a lot and we have a lot of money we can use to sue you.”

The paper didn’t back off, so Snyder sued. He eventually dropped his $2 million suit, saying he wanted to “focus on the coming football season and the business at hand.” In other words, “We had no hope of winning so we backed off our bluff.

The point of explaining all of this, other than to highlight two pieces of content that irritated extremely rich people who tried to sue the media into silence, is to outline the key legal aspects of what it actually takes to libel or defame someone. Also, it is an opportunity to explain how to deal with people who get angry and scream, “I’m going to sue you!” lists a series of potential defenses against defamation, two of which got Oliver off the hook: Truth and opinion. A third defense, hyperbole/parody, is also solid defense, as the 1988 Supreme Court case involving Hustler Magazine and the Rev. Jerry Falwell demonstrated.

Whether you are reporting on a serious matter or using a 7-foot-tall talking squirrel to take on a coal mine owner, here are some tips as to how best to deal with people who threaten to sue you:

  • Remain calm: Just like when you are in the field, a panicking reporter is a useless reporter in this situation. You need to realize that the threat of a lawsuit is just that: A threat. It is highly unlikely that the person will sue you at all, let alone sue you successfully. However, you should take every call or email like this seriously and keep your wits about you while you do.
  • Determine the problem: Just because someone doesn’t like something, it doesn’t necessarily follow that they have grounds for legal action. The key thing is to determine what has upset this person so you can figure out your best course of action. For example, if a caller says something in the story is wrong, you can determine if there is a factual error or if the person just disagrees with a source in your story. This will help you see if you need to run a correction or if you need to explain how reporters gather information from sources. (In the case of Bob Murray, it was less about factual inaccuracies and more about “OMG MEEEEN!!!” As the courts have repeatedly demonstrated, that’s not enough to win a suit, especially when the plaintiff is a public figure.)
  • Don’t make a promise you can’t keep: When a person is yelling at you on the phone about how you screwed something up, the “fight or flight” instinct can kick in pretty quickly. You might feel like the best way to get out of the situation is “flight,” where you apologize profusely for everything and assure the person everything will be fixed right away. This can lead you to make promises you can’t keep, such as changing a story, pulling something off the Web or something else to make this person back off. In other cases, you might go into “fight” mode, where you push back at the caller with some anger of your own. This can further enrage the person and lead to even worse consequences if your publication eventually has to correct an error or apologize for a story. You probably won’t be the final arbiter of how your publication will deal with these situations, so don’t promise action when it’s not yours to promise. The only thing you should promise is that you will do your best to look into this and inform your superiors.
  • Get contact information: You will almost certainly need to do a bit of digging before you can solve any problem. Even if the problem isn’t yours to solve, you want to make sure you have the contact information from the person who raised the issue. With email, this is easy enough, as you can forward the complaint to the reporter involved in the story (if it’s not you) or to your editor and the person’s email address is right there. In the case of a phone call, make sure you get the person’s name and number so you or someone else at your office can get back to them as needed.
  • Provide resolution: Either you or your editor should provide the person with some form of resolution to the issue. During this process, you need to explain what you found, what you decided to do and how you will proceed. If the person is still upset, you should have options for him or her to pursue the issue further. At that point, it might even be a lawsuit, but you have done your best to resolve the issue.

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