About a year ago, we talked about the legal triangle that existed between coal magnate Bob Murray, comedian John Oliver and a 7-foot-tall squirrel named Mr. Nutterbutter.
The short version of this was that Oliver did a big piece on the coal-mining industry, in which he called out Murray’s company and made fun of the 79-year-old for a variety of things he did and said. Murray filed suit in West Virginia, claiming Oliver defamed him and seeking not only damages (to be specified by the court), but also a permanent injunction barring Oliver from ever broadcasting the piece again. It also sought to eliminate all copies of the “Last Week Tonight” story from public viewing.
A year ago, the state threw out the case against Oliver and HBO, stating that this was satire in some cases and free speech in all cases. (I still think the greatest legal argument came from the amicus brief filed by the West Virginia ACLU that noted, “Anyone Can Legally Say, ‘Eat Shit, Bob.'”) When the court tossed the case, Oliver let his fans know about it in a truly “Last Week Tonight” fashion:
Contrary to the title of that clip, however, Murray hadn’t given up the ship quite yet. He appealed the decision to the state’s supreme court before eventually dropping the case recently. Oliver then finally made good on his 2-year-old promise to tell us “the whole story” about what happened with the suit.
(Normally, I would upload the link to the piece here, but I think my publisher would kill me in this case if I did so. I have been told repeatedly that “students at small religious institutions” read this blog as part of their homework. Let’s just say that the dancing and singing number at the end is “a lot.” Feel free to find it on your own on YouTube.)
Oliver, however, didn’t spend all 25 minutes of the main story on a self-congratulatory Broadway-style number that pushed satire into a completely incredible stratosphere. His main point was about the way in which people with money can engage in ridiculous lawsuits to crush dissent, which is something of serious concern to journalists these days.
Strategic Lawsuits Against Public Participation, or SLAPPs, use the legal system as a sword as opposed to a shield. The goal of these, according to the Public Participation Project, is to crush free speech with lawsuits that have no merit:
SLAPPs are used to silence and harass critics by forcing them to spend money to defend these baseless suits. SLAPP filers don’t go to court to seek justice. Rather, SLAPPS are intended to intimidate those who disagree with them or their activities by draining the target’s financial resources.
In short, even if you win the point as the target of one of these SLAPP suits, you lose because you go broke. We covered this kind of situation when we talked about the small-town Iowa newspaper that went after a police officer who had been showing waaaaay too much interest in underage girls. The cop sued for libel and lost in a huge way. However, the paper ran up a six-figure debt defending itself and turned to a GoFundMe campaign to try to save itself.
In Oliver’s case, it cost about $200,000 to defend the coal piece and led to a tripling of his libel insurance premiums. And that was BEFORE he ran his giant Broadway number that went even further in talking crap about Bob Murray.
About 30 states have anti-SLAPP laws on the books now, which try to cut this kind of nonsense off at the pass. Although they vary from state to state, the gist of anti-SLAPP laws is that the person being sued can ask the court to view the story in question as being in the public interest (or at least free speech). It then is the plaintiff’s job to show that the suit has merit.
If those folks can’t meet that burden and it becomes clear it’s a SLAPP suit, the case gets tossed. In some cases, the law calls for the plaintiff to cover all legal bills derived from this stupid exercise.
However, not every state has these laws (Murray sued Oliver in West Virginia for precisely that reason) and not all laws are equally helpful to journalists. This makes life a little dicey for you if you want to take a shot at someone who has probably done something wrong but is likely to be extremely litigious.
Every time you ply your trade, you run the risk of being sued, regardless of if you did something wrong or if someone is just being a chucklehead. With that in mind, here are a few things to think about when it comes to SLAPPs:
IT’S NOT A SUIT UNTIL IT’S FILED: My good buddy Fred Vultee used to say this a lot on the copy desk when a story about someone threatening to sue would come across his desk. His point, and it’s a good one, was that anyone can threaten anything. Until paperwork is filed, all this huffing and puffing does is create a lot of wind.
As we pointed out in earlier posts, you shouldn’t panic and try to run away whenever someone threatens you with a suit. Instead, you should see what it is that is upsetting that person, if that concern has merit and if something needs to be done to resolve the concern before it gets too far down the road. If you’re wrong, an anti-SLAPP law isn’t going to help you.
As the Reporters Committee for Freedom of the Press points out, anti-SLAPP laws aren’t meant to solve every legal problem for journalists. They are just one more tool in your toolbox that can be helpful when a specific situation comes up.
If you’re right, and it become clear this person is just trying to mess with you, then you can start thinking about lawyers, laws and SLAPP stuff.
DOES SOMEONE HAVE YOUR BACK?: When we talked to Alex Crowe of The Great 98 a year or so ago, he found himself in the middle of what could be considered a SLAPP case. He reported on a messy police situation, which included a reference to a drug bust and a cop’s kid. The officer involved threatened to sue unless the station scrubbed its website of all stories involving this.
Although point one really applies here, sometimes, just the threat of a suit is enough to make people up the chain nervous about sticking their necks out for you. In Crowe’s case, the first inclination of the people around him was to back off. He did, however, know that if he could protect himself and the station without draining every resource from the organization, he would still be in decent shape. That’s where the RCFP came into play. The folks there provided him with legal advice, some pro-bono counsel and a chance to push back at the threats. That was enough to put the kabosh on the whole thing.
Organizations vary as do bosses. I’ve worked for people who would step in front of a bus for me. I’ve also worked for people who would not only push me in front of a bus, but would be more than glad to drive it over me a couple times if it kept their keesters out of the fire. This was the determining factor for a lot of what it was that I was doing in terms of fighting with angry sources, disgruntled subjects and other folks who were potentially litigious.
If you know where you stand with the people who might or might not stand with you on a situation, you at least have a sense of how scared you should be going forward. For all of his zany antics, something tells me that Oliver had more than a few conversations with his bosses at HBO about what might happen as a result of going after Murray before he aired the piece.
IS THE JUICE WORTH THE SQUEEZE?: In employing this “Filak-ism,” I’m likely to earn the ire of many old-school news journalists. In the idealized world of news, the goal is to tell the truth, consequences be damned. You HAVE to tell the truth and you MUST push back against powerful forces. In the movies, it always looks like this:
There’s that sense of “Damn the torpedoes! Full speed ahead!” that brings vigor to journalism and that is trumpeted as “this is why we do what we do.” I’ll never argue that in a perfect world, the bad guys get punished, the truth gets told and Gary Cooper always rides off into the sunset with Grace Kelly.
We don’t live in a perfect world and if you need any proof of that, go look at the approval ratings of journalists these days.
My friend Allison and I used to ask when we would deal with difficult situations or plan those Quixotic efforts, “Is this the hill you’re willing to die on?” In other words, if everything goes to hell in a speedboat and you don’t end up winning the day and Gary Cooper gets run over by a horse while Grace Kelly runs off with the blacksmith instead, are you OK with that? Was this worth it?
In the case of Crowe’s story, he felt it was worth it and he ran the risk of losing the fight, the ability to do good news and maybe even his job. In the case of the “Spotlight” story, the Boston Globe eventually got the pieces in front of the public and unveiled some of the darkest elements of the powerful force that was the Catholic church.
In the case of John Oliver, well, we got another awesome moment or 12 from Mr. Nutterbutter, so I guess that was good as well.
The point is, if you’re going to take on someone who will likely torture you with legal stuff and drain your piggy bank of every last cent, make sure you feel it’s a worthwhile endeavor. If you don’t, then let it go and be OK with the fact someone is getting away with lousy behavior because of your choices.
