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, 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),

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).


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).


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.


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. 

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