British comedian John Oliver has a good defense in a defamation suit filed against him and HBO, the cable network that produces “Last Week Tonight with John Oliver,” said First Amendment veteran Floyd Abrams.
But if Oliver succeeds, he will do so not with his humor—which recently included a squirrel-costumed staff member—but because of his politics, Abrams said.
This week, a group of coal mining companies, led by Robert Murray, the CEO of Murray Energy Corp., filed suit against Oliver and HBO after “Last Week” aired a segment about the Trump administration’s coal industry policies.
In that segment, Oliver’s team singled out Murray and described the 77-year-old as having the appearance of a “geriatric Dr. Evil” and noted that his Ohio-based company had fought against coal safety regulations.
“Political commentary, whether phrased humorously or not, receives sweeping protection under the First Amendment,” predicted Abrams, a senior partner at Cahill Gordon & Reindel in New York. “That is likely to be especially true when a judge reviews a complaint that seems so filled with political references.”
“That the presentation at issue is phrased humorously is relevant because it assures that obviously exaggerated statements will not be taken literally,” Abrams wrote in an email. The talking squirrel that Oliver included in his segment—a reference to a satirical story about Murray being inspired to start his business after conversing with a rodent—shows precisely how un-literal the material was, Abrams wrote.
Abrams warned that humor alone, however, is not a defense against a libel verdict. But overall the well-respected freedom of speech lawyer doesn’t think Murray will have an “easy time” pursuing HBO and Oliver.
“[I]n this case, in which the plaintiffs seem to be attacking not just the broadcast but the conclusions of an official study, the burden seems especially demanding,” Abrams wrote.
In the suit, filed on June 21 in West Virginia’s Circuit Court of Marshall County, the plaintiffs allege that Oliver created a “villainous” portrait of Murray.
The petition accuses Oliver’s team of harming Murray’s reputation when the HBO star claimed that no evidence existed for an earthquake to cause a 2007 mine collapse, even though Murray, Oliver alleged, had raised that scenario as an explanation.
Leonard Marsico, a Pittsburgh-based partner and leader of the coal team at McGuireWoods, regularly represents Murray Energy. He declined to comment for this story. Jeffrey Grove, a name partner at Wheeling, West Virginia-based Gove, Holmstrand & Delk who filed Murray’s petition against Oliver and HBO, also declined to comment.
Murray is no stranger to the world of plaintiff defamation claims. In May, Murray’s companies filed a claim against The New York Times about an editorial that also discussed the same 2007 mine collapse near Huntington, Utah.
For its defense, The Times tapped Bob Fitzsimmons of Fitzsimmons Law Firm in Wheeling, West Virginia. Fitzsimmons declined to comment for this story, beyond saying that he “wants to try my case in the court.”
Earlier this month, The Times filed a motion to dismiss Murray’s defamation suit, arguing the plaintiffs had failed to state a claim. Grove also represents Murray’s companies in that matter.
On Thursday, those plaintiffs filed a response to The Times’ motion to dismiss. In that response, the plaintiffs argued that The Times should have called Murray representatives before characterizing his view of the mine’s collapse.
The newspaper “had particular reason to think that it should call Murray Energy about the mine collapse, because the collapse happened ten years ago, making it likely that the scientific analysis into the highly technical and complex matter of causation had evolved,” the response stated.
As for HBO’s Oliver, no stranger to legal entanglements with powerful individuals, he closed his segment by acknowledging the likelihood that Murray would resort to litigation.
“I know you’re probably going to sue me, but I stand by everything I said,” Oliver said. “Although I do not believe that a squirrel talked to you.”
Note: This story was updated to clarify Floyd Abrams’ comments.