HBO Fights Energy Co.'s Bid to Prevent Rebroadcast of John Oliver's 'Last Week Tonight'

Last Week Tongiht with John Oliver - HBO-Publicity 1-H 2017
Courtesy of HBO

Coal baron Robert Murray's lawsuit over the June 18 episode of HBO's Last Week Tonight With John Oliver may take several years before it reaches any resolution. Murray, 77, stated through the complaint filed in West Virginia that he doesn't expect to live to see the end of the case. Nevertheless, two big decisions are looming that will set the tone for the litigation. On Friday, HBO filed court documents addressing both topics while blasting Murray for repeated attempts to chill free speech.

Murray Energy and various associated coal companies are suing HBO and Oliver for defamation over statements that allegedly told viewers that Murray sacrifices safety and the health of its employees for profits. Oliver punctuated his commentary about Murray's business practices and policy positions with various bits of humor including describing Murray as "a geriatric Dr. Evil" and having an actor dress up in a squirrel costume.

About a week after the case was filed in state court, HBO had it removed to a federal one. But not before Murray made an emergency motion for a temporary restraining order to prohibit the pay network from rebroadcasting the segment containing the statements being challenged as false and defamatory.

"Plaintiffs' motion for a temporary restraining order and this lawsuit are merely the latest examples of Murray's ongoing campaign to use 'punitive litigation ... to chill constitutionally protected speech,'" states HBO in opposition papers. "The lawsuit by many of the same plaintiffs against The New York Times, which has a motion to dismiss pending in these chambers, is only one of many. In the past few years alone, Plaintiffs repeatedly have filed similar lawsuits against critics and members of the media, only to have them dismissed at the pleading stage. This history suggests that Plaintiffs' objective is not to prevail on the merits, but to impose a cost on those who have the temerity to criticize Murray. This temporary restraining order is a prime example of those efforts, and must be denied."

HBO has tapped Kevin Baine and Thomas Hentoff at Williams & Connolly to lead the defense. Notably, Baine successfully represented HBO two years ago at a trial over a Real Sports With Bryant Gumbel report on child labor in India. Last month, he appeared in South Dakota on behalf of ABC in a multibillion-dollar trial over the network's "pink slime" reports. That case was settled about halfway through what was expected to be an eight-week proceeding.

Baine and local attorney Robert Fitzsimmons are arguing that a restraining order would amount to an unconstitutional prior restraint on speech and say that the challenged Last Week Tonight episode hardly rises to the kind of "exceptional case" that would overcome First Amendment protections. HBO's injunction opposition (read here) also focuses on whether Murray is likely to prevail in his claims. The defendant tells the judge that it has a fair report privilege to cover official government proceedings including decisions by the National Labor Relations Board and that the First Amendment protects opinion and rhetorical hyperbole. Besides showcasing its show as commentary "coupled with obvious satire," HBO also nods to how Murray has availed himself of media opportunities and thrust himself to the forefront of public discussions concerning the coal industry. As a public figure, Murray is said to be missing the actual malice component of a defamation claim.

"The public interest also weighs against an injunction," states the pay cable network. "Plaintiffs' reliance on the so-called 'John Oliver Effect' is no more than a dressed-up version of the 'Heckler's Veto,' which the Fourth Circuit has described as 'one of the most persistent and insidious threats to first amendment rights.'"

The fight over the proposed restraining order touches on the merits of Murray's lawsuit, but the importance of HBO's attempt to stick the case in federal rather than state court shouldn't be underestimated.

For a variety of reasons, media defendants prefer fighting in federal court. The case between Hulk Hogan and Gawker in Florida state court as well as the one between Beef Products Inc. and ABC in South Dakota state court might be examples of state judges less inclined to allow First Amendment principles to curtail fact-finding. One of the biggest differences between federal and state courts is that the judges in the latter forum are often elected rather than appointed to lifetime tenures. Such is true in West Virginia. In fact, the state's judiciary has a controversial history with outside money from coal interests in elections. The state recently passed a law for nonpartisan elections for judges, although that may not hamper the possibly corrupting influence of campaign donations.

Murray would prefer his dispute with HBO happen in state court. In a motion made on July 7 to remand the case (see here), his side objects to the notion that certain plaintiffs — subsidiaries or affiliates of Murray Energy — were added to the complaint so that diversity jurisdiction wouldn't apply.

On Friday, HBO presented its own arguments (read here) that these other plaintiffs can't show that statements made on Last Week Tonight were "of and concerning them," and thus, were fraudulently joined.

Before U.S. District Court judge John Bailey even tackles the restraining order, he will likely have to decide which forum is most proper.