Thursday, August 3, 2017

My Take on the ACLU-WV's Amicus Brief in Marshall County Coal Co. v. Oliver

John Oliver
Photo credit: Neil Grabowsky/
Montclair Film Festival
You’ve probably heard about an amicus brief filed by the ACLU of West Virginia in support of comedian John Oliver. Coal baron Bob Murray and his coal companies sued Oliver after Oliver aired a segment on his show, Last Week Tonight, about Murray and his companies’ history of mine safety violations, suggesting that Murray’s business interests trump his interest in miners’ safety.

This lawsuit seems pretty cut and dried. Murray will almost certainly lose, and Oliver’s lawyers seem pretty capable of defending him (and HBO) from the suit. But the ACLU of West Virginia couldn’t resist filing a snarky, sarcastic amicus brief in support of Oliver, and the brief has gotten tons of attention in legal and non-legal circles.

My sense is that this lawsuit is a classic example of the Streisand Effect. Murray, who has a history of filing frivolous lawsuits against reporters and journalists who criticize him, probably deserves every bit of this brief’s snark. But is the brief effective? Or does its extreme sarcasm undermine the message?

Legal writing professors seem divided. Some see it as a classic example of what not to do. Others think it works for this amicus brief given the parties and the subject matter. What do I think? Read on.

By the way, if you haven’t seen the Last Week Tonight episode at issue, consider watching it first. Many of the ACLU’s references (including to Dr. Evil and Mr. Nutterbutter) won’t make sense without some context.


What I like and what I don’t

I like the beginning of Section II, which clearly and succinctly informs the court of the issue before it:

“This case is about Plaintiff Robert E. (“Bob”) Murray not liking a television program and somehow believing that is a legally actionable offense.”

And I like that the ACLU notes that the subject matter of the case is serious, even if the brief isn’t:

“Although this brief pokes fun at the absurdity of this case, the legal issues raised are anything but comical. This lawsuit, and Plaintiffs’ frequent attempts to use our legal system to chill speech, threaten the fundamental rights of the media to criticize public figures and speak candidly on matters of public concern.”

The ACLU’s discussion of Murray’s past efforts to sue media outlets is also highly effective. The ACLU paints him as serial litigant, citing numerous cases in which Murray tried—and failed—to use the legal system to bully people whose opinions he doesn’t like:

It appears that Bob Murray’s favorite hobby is suing and/or threatening to sue people for making political statements he disagrees with. See Murray v. Tarley, No. C2-01-693, 2002 WL 484537 (S.D. Ohio Feb. 21, 2002) (dismissing defamation action); Murray v. Knight-Ridder, Inc., No. 02 BE 45, 2004 WL 333250 (Ohio Ct. App. Feb. 18, 2004) (same); Murray v. The HuffingtonPost.com, Inc., 21 F. Supp. 3d 879 (S.D. Ohio 2014) (same); Murray v. Chagrin Valley Publishing Co., 25 N.E.3d 1111 (Ohio Ct. App. 2014) (affirming dismissal); Murray v. Moyers, No. 2:14-CV-02334, 2015 WL 5626509 (S.D. Ohio Sept. 24, 2015) (dismissing defamation claim); Murray Energy Holdings Co. v. Mergermarket USA, Inc., No. 2:15-CV-2844, 2016 WL 3365422 (S.D. Ohio June 17, 2016) (same); Murray Energy Holdings Co. v. Bloomberg, No. 2:15- CV-2845 (S.D. Ohio June 17, 2016) (same); Jonathan Peters, A Coal Magnate’s Latest Lawsuit Was Tossed—But Ohio Can Do More to Defend Free Expression, Columbia Journalism Review (May 28, 2014), http://archives.cjr.org/united_states_project/murray_energy_defamation_lawsuits_huffington_post.php).

And the ACLU has some snappy phrases that aren’t snarky and make its points perfectly:

As a flamethrower himself, Bob Murray should not be shocked when his own fire occasionally inspires others to fire back. This is the very purpose of the marketplace of ideas.

The place to disagree on important matters of public concern is the court of public opinion, not United States District Court. See Hustler Magazine v. Falwell, 485 U.S. 46, 51-52 (1988).

The cases the ACLU quotes are on point:

It is axiomatic that “the First Amendment to the United States Constitution placed limits on the application of the state law of defamation” and in particular on “the type of speech which may be the subject of state defamation actions.” Milkovich v. Lorain Journal, 497 U.S. 1, 14, 16 (1990). The Complaint itself makes it clear that Defendants’ speech was about matters of public concern, as it repeatedly alleges that Defendants’ broadcast this episode to advance their political agenda. “[S]peech concerning public affairs is more than self-expression; it is the essence of self- government.” Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964).


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Opinions, too, are protected speech, and “[u]nder the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974).


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It is irrelevant that Bob Murray apparently finds this protected speech offensive. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive of disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989); see also, e.g., Street v. New York, 394 U.S. 576, 592 (1969); Rankin v. McPherson, 483 U.S. 378, 387 (1987). Indeed, “if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.” FCC v. Pacifica Foundation, 438 U.S. 726, 745 (1978).

I do think, however, that the brief would have benefitted from some case analysis. While the ACLU cites some excellent language from some helpful cases, it doesn’t actually analyze the legal issues in light of those cases. The lack of analysis wouldn’t cut it in a party’s brief, and I think the ACLU could have offered an analysis from several of the more on-point cases to strengthen its position.  

Also, I could have done without some of the adjectives and adverbs:

It is frankly shocking that Plaintiffs were able to find attorneys willing to file a lawsuit that is so obviously unconstitutional.

The statements Plaintiffs point to are clearly not libelous—they are satire regarding a public figure regarding a matter of public concern.

Ironically, the Complaint outrageously claims that Defendants “attacked [Bob Murray] in a forum in which he had no opportunity to defend himself, and so he has brought this suit to try to set the record straight.”

Finally, the brief could have used one more round of editing and proofreading. “Squirrel” is misspelled “squirrell” in one spot in the brief. And the author means unconstitutional, not constitutional, in the following passage:

All prior restraints on expression are presumptively constitutional; prior restraints on matters of public concern are even more so. See, e.g., Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).

The snarkiest elements of this snarky brief

People aren’t reading this brief for its legal analysis, though. They’re reading it for the snark. The entire brief is sarcastic, but some parts are more sarcastic than others:

On June 18, 2017, Defendant Home Box Office, Inc. aired an episode of “Last Week Tonight with John Oliver,” a satirical news program about current events. The main topic discussed in the episode was coal. Apparently because Plaintiffs’ delicate sensibilities were offended, they clutched their pearls and filed this suit.


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Bob Murray thinks John Oliver was mean to him, and he doesn’t want him to be mean again. While that is sad for Bob Murray, it is unconstitutional for a court to order such relief. With Plaintiffs’ request for a (1) prior restraint (2) that is a content-based restriction (3) on a matter of public concern (4) related to a public figure, they have really hit the protected speech jackpot!

*******

Plaintiffs argue that Defendants will use their “unique powers” to “access . . . millions of West Virginians, to bias the potential jurors who will determine their fate.” Pl’s Mem. at 3. (These special powers must include magic, as West Virginia has under 2 million residents.)

The entire introduction (including to heading) to Section III is brutal:

III. Anyone Can Legally Say “Eat Shit, Bob!”

This case is beyond meritless. It is offensive to the very ideals of free speech embodied in the First Amendment. The fact that Plaintiffs filed this case is ridiculous enough; but, to pour gasoline on the fire, plaintiffs’ counsel has also filed a motion asking the court to make John Oliver not say mean things about him anymore. See Pl.’s Mot. [Docket 1-1]. It is frankly shocking that Plaintiffs were able to find attorneys willing to file a lawsuit that is so obviously unconstitutional.

It is apt that one of Plaintiffs’ objections to the show is about a human-sized squirrell named Mr. Nutterbutter, because this case is nuts. Which also begs the question: is Mr. Nutterbutter one of the 50 Doe Defendants included in this action?

And, finally, the inclusion of the side-by-side photo of Austin Powers’ Dr. Evil and Bob Murray further highlights the perceived ridiculousness of the suit:


My thoughts

Overall, I think this brief generally works in this case because (1) it’s an ACLU amicus brief; (2) Oliver himself is a comedian who relies heavily on satire; and (3) the suit appears frivolous. I find it mildly funny, but that's probably because I like John Oliver and agree with the ACLU that the lawsuit has no merit.

Would I have filed this brief on behalf of an amicus? Probably not, at least not without dialing back the snark substantially and dialing up the concrete analysis.

Would I have filed this brief on behalf of a party? Never.

Would I recommend this brief to law students or young lawyers as an excellent example of advocacy? No, but that doesn’t mean the brief isn’t a good learning tool—it does some things well.

I think we should all remember that the ACLU has an agenda, and the style and tone of this brief appear to advance that agenda. I doubt the ACLU intended for the brief to be a serious piece of legal advocacy—the ACLU is attempting to advance its position in a lighthearted way. 

While the brief was written in support of a party to the litigation, I suspect it was also filed for other purposes, including raising the ACLU-WV’s profile and increasing donations for the organization. I also suspect that people inclined to donate to the ACLU will find it funny, so I think this brief will advance those goals. 

Tuesday, July 25, 2017

Social Psychology and Legal Writing: Hallmarks of Truthfulness

*This is the second post based on the work of Dr. James W. Pennebaker. Check out my first post for background on his research.

Social psychologist James W. Pennebaker has found that the language a person uses can suggest whether a person is lying or telling the truth. While no person, machine, or program currently in existence (including polygraphs) can detect lies at a rate any better than about 65%, Pennebaker’s studies suggest some hallmarks of truthfulness. According to Pennebaker, in general, people telling the truth use:

  • More words and details
  • Longer and more complex sentences (including use of     exclusive words such as except, but, and without)
  • Fewer emotions
  • Fewer verbs
  • More self-references (I-words)



So why does the use of more words and details and more self-references signal honesty?

Pennebaker suggests that those telling lies speak and write more simply or straightforwardly because they are making up statements about things they did not experience. Truthtellers, on the other hand, use more words and greater detail because they are “distinguishing what did happen versus what did not, what they were thinking and what they were not thinking about, what was in the category and what was not in the category.”

And according to Pennebaker, I-words signal to the listener or reader that the speaker is paying attention to himself, and studies suggest that those who are more self-aware are more humble and honest.

Pennebaker notes that liars sometimes use performatives (statements about statements) to hide their lies. For example, consider this sentence: 

  • Let me be clear: I did not collude with the Russians.

In that sentence, “let me be clear” is the performative. According to Pennebaker, a statement with a performative cannot be assessed for truthfulness because the part of the statement that we care about (here, the assertion about a lack of collusion with Russia) is not directly asserted.

Pennebaker offers a statement by President Bill Clinton as an example. At a January 1998 press conference, Clinton said:

  • I’m going to say this again: I did not have sexual relations with that woman, Miss Lewinsky.

The nation later learned, of course, that Clinton did have sexual relations with Lewinsky. But he was not lying when he said, “I’m going to say this again” because he did, in fact, say it again.

Self-deception is also an issue. People (whether intentionally or unintentionally) deceive themselves, often by expressing overconfidence, says Pennebaker.

  • I am absolutely certain that I can settle the case for $50,000.

To most, this sentence appears (and likely is) less truthful than the following sentence:

  • There is a good chance I can settle the case for $50,000.

Interestingly, juries may be less likely to believe the very language that signals truthfulness. Take, for example, the following sentences from a crime victim:

  • I am 100% sure that the defendant is the man who entered the store and robbed it.

  • The defendant is the man who entered the store where I was working at 9 p.m. on August 31, 2016, brandished a 9 mm gun, and robbed me of all the money in the cash register, about $350.

All other things equal, jury members may find the definitiveness of the first statement more credible than the second, even though the second is more detailed and appears more reasonable (who, really, can be 100% sure of anything?), and, in the second, the speaker refers to himself more.

The Lying Words chapter of Pennebaker's The Secret Life of Pronouns may be of particular interest to criminal lawyers. In that chapter, Pennebaker describes a test he and a private investigator performed. The investigator gathered sworn testimony from two groups of criminal defendants—those who were convicted but later exonerated by DNA or other overwhelming evidence and those who were acquitted but later convicted of perjury. Members of the first group, thus, were “bad” at telling the truth while members of the second were “good” at lying.

The results of that study were consistent with Pennebaker’s earlier findings, specifically with respect to I-words. In their testimony, the later-exonerated defendants used more first-person singular pronouns; that is, I-words appeared to signal innocence, as did bigger words and more detailed descriptions. The defendants later convicted of perjury, on the other hand, used more third-person pronouns, in an apparent effort to shift blame to others.  

So, the next time you're assessing the writing or speech of others, look for Pennebaker's hallmarks of truthfulness. They might help you sniff out a liar! 

Monday, July 17, 2017

Social Psychology and Legal Writing: Part I

*This is the first of a two-part post based on the research of Dr. James W. Pennebaker.*

Dr. James W. Pennybaker
A Twitter friend recently introduced me to the work of Dr. James W. Pennebaker, a social psychologist who researches the relationships between people’s language and their psychological states. Dr. Pennebaker’s findings have interesting implications in legal writing. But first—some necessary background.

Dr. Pennebaker developed a computer program, Linguistic Inquiry and Word Count (LIWC), to analyze the psychology behind what we write. Through his research, Dr. Pennebaker has learned that the words a person uses and the frequency with which the person uses them provide insight into the psychology of the speaker.

Specifically, Dr. Pennebaker is interested in function or style words—pronouns, articles, prepositions, and a few other categories of small words. According to Dr. Pennebaker, these words, which most of us barely notice, account for 60% of the language we use. These stealth words can tell us about whether a person is organized, emotionally stable, social, and many other things.

And Dr. Pennebaker’s research shows that men and women, the old and the young, and people of different socioeconomic statuses use language differently. Specifically, Dr. Pennebaker has discovered that men tend to use more big words, nouns, and words per sentence than women. Women, on the other hand, use more personal pronouns, verbs, and hedge phrases (such as “I think”) than men. Further, according to Dr. Pennebaker, people tend to change their language based on setting. In formal settings, for example, people speak with fewer pronouns, more articles, and fewer social words; that is, the research shows that women adjust their language in these settings to talk like men.

Dr. Pennebaker has also found that our language use changes as we age. Younger writers use personal pronouns and past-tense verbs at higher rates than older people, who use more articles, nouns, prepositions, and cognitive words that reflect insight.

Finally, Dr. Pennebaker has found a “sound of power”—that those with power and status (generally, men, older people, and those of higher socioeconomic status) use more noun clusters and fewer pronouns and verbs. The reasons for these findings aren’t entirely clear, but Dr. Pennebaker suggests that those in power tend to focus on tasks (they are, after all, the deciders) while those with less power tend to pay attention to others (e.g., the deciders).

Given that background, I used Dr. Pennebaker’s website, secretlifeofpronouns.com, to analyze my own writing.

Dr. Pennebaker’s first writing prompt, a perceptual style test, required me to spend five minutes describing a picture. According to Dr. Pennebaker’s research:

I scored above average on functional thinking, tactile sensitivity (appreciation of texture, contour, and dimension), contextual thinking, and visual sensitivity (colors and styles).

And, unsurprisingly, I scored above average on verbal thinking. According to Dr. Pennebaker’s research:

“[I] devoted more time than most describing the words and word fragments. Words grab [my] attention and [I] view them as important anchors to [my] reality.”

That’s certainly true!

The second prompt, a thematic apperception test, required me to spend ten minutes writing a fictional story based on a different picture. My results reflect a higher-than-average need for achievement (unsurprising), use of big words (also unsurprising), and positive emotions. My results show a lower-than-average need for power and negative emotions.

I’m a pretty self-aware person (I think!), and both I and the people close to me agree that the results of these two tests accurately reflect my personality.

I also used Dr. Pennebaker’s other website, analyzewords.com, to analyze my @ladylegalwriter tweets. The results are interesting. According to Dr. Pennebaker’s program:

My emotional style is only of average upbeatness (I’m a little surprised by this.)

My social style is highly personable, plugged in, and arrogant/distant (Maybe I am?)

My thinking style is highly analytic (no surprise there).  

While I was at it, I also analyzed tweets from Barack Obama (@barackobama), who, according to Dr. Pennebaker’s program, has a very upbeat emotional style but only average style in personability and analytics.

Finally, I looked at tweets from lawyer Jeffrey Toobin (@jeffreytoobin) who, Dr. Pennebaker's program says, has a highly upbeat emotional style and a highly personable but spacey social style.**

Dr. Pennebaker notes that many factors that cannot be controlled outside a research setting (distractions, level of tiredness, etc.) may affect the results of all his tests. Thus, cautions Dr. Pennebaker, the results should be taken with a grain of salt.

But the outcome of my writing assessments appears to accurately reflect some of my psychological strengths and weaknesses and has gotten me thinking about the implications of Dr. Pennebaker’s research in legal writing. I’ll discuss this in my next post.

**Caveat: I noticed is that the program only analyzes the tweeter’s most recent 1,000-1,500 words or so and factors in retweets, both of which could skew the results.