SLAPP Suits

John Oliver in 2016

On June 18, 2017, John Oliver hosted a Last Week Tonight segment titled "Coal", focusing on practices in the American coal-mining industry.[1] Oliver began the piece by showing President Donald Trump's affinity for the coal industry, including shots of him during his 2016 presidential campaign in a coal miner's hat and delivering a speech in which he told the miners to prepare to work their "asses off" when he became president.[2][3] Oliver then introduced Robert E. Murray, CEO of Murray Energy, an outspoken critic of President Barack Obama during his tenure for perceived incompetence and aggression towards the coal industry.[4][5]

Oliver goes on to explain that when Murray Energy was contacted about the piece, his show received a cease-and-desist letter that instructed them not to engage in "any effort to defame, harass, or otherwise injure Mr. Murray or Murray Energy", and that Murray Energy had sued others before.[4] Oliver ignored this letter, proceeding to call Murray a "geriatric Dr. Evil" who was "on the same side as black lung"[4] and to talk about other errors in Murray Energy's mining practices, focusing particularly on the Crandall Canyon Mine collapse that killed nine people. The mine was operated by Genwal Resources, Inc., an affiliate of Murray Energy. Oliver pointed out that while Murray argued that the collapse was the fault of an earthquake,[4][6] the federal government concluded that it was the fault of unsafe mining practices.[7][8]

Oliver also highlighted another story before ending the segment: when Murray Energy introduced a bonus program for coal miners, they were told that they could return their checks if they felt the program incentivized unsafe practices. Two miners complied, returning checks for small amounts with the words "Kiss My Ass Bob" (all capitalized) and "Eat Shit, Bob" written on them.[9][10][11] Oliver also referenced a satirical article in a journal of the United Mine Workers, alleging that Murray shared an anecdote in which he was told to start a coal mining corporation by a talking squirrel; the company denies the story.[4] Drawing on these two incidents, Oliver ended the segment by introducing a squirrel mascot known as "Mr. Nutterbutter" (played by Noel MacNeal) who taunted Murray by holding up an oversized check for "three acorns and eighteen cents" made out to "Eat Shit, Bob!".[12]

On June 21, 2017, three days after "Coal" aired, Marshall County Coal Company and other companies chaired by Murray filed a strategic lawsuit against public participation against Oliver, HBO, and others associated with Oliver in a West Virginia Circuit Court claiming defamation.[13] The complaint alleged that Oliver carried out a "meticulously planned attempt to assassinate the character of and reputation of Mr. Robert E. Murray and his companies".[4] The plaintiffs criticized Oliver's coverage of the Crandall Canyon Mine collapse, reiterating their claim that the primary collapse was caused by an earthquake, rather than unsafe mining practices on the part of the Murray Energy subsidiary.[4] The company sought monetary damages, as well as a gag order on broadcasting the piece or airing it online.[4][14] An HBO spokesperson expressed confidence in Last Week Tonight, and said that they did not believe that "anything in the show this week violated Mr. Murray's or Murray Energy's rights".[4][15]

On February 21, 2018, the case was dismissed, with the judge agreeing with HBO's arguments that Murray Energy had failed to state a valid claim.[16] Murray Energy appealed to the Supreme Court of Appeals of West Virginia, but four of the five justices on that court were impeached for unrelated corruption, overspending, and lack of oversight charges; the fifth justice resigned.[17][14] The defamation lawsuit was later dropped, while Murray Energy was filing for bankruptcy.[14] Oliver also revealed that he had mentioned one of the justices on the court in a segment a few years prior; specifically, he had joked that the chief justice on the court, Allen Loughry, referred to his penis as "The Gavel".[18]

In August 2017, while the lawsuit was ongoing, the American Civil Liberties Union (ACLU) chapter in West Virginia filed an amicus brief on behalf of HBO. The brief was noted by news outlets for its snarky, humorous tone, unusual in a legal document;[19] it featured section headings such as "You Can't Sue People for Being Mean to You, Bob"[19] and "A Brief History of Plaintiffs' Attempts to Chill Speech by Abusing the Legal System".[10] Written by Jamie Lynn Croft, the paper argued that Oliver's segment did not air any speech that violated Murray Energy's rights, as Oliver's statements were protected by the First Amendment as satirical humor—although Croft also quipped that "with regard to the Dr. Evil remark, it should be noted that truth is an absolute defense to a claim of defamation".[19] The brief claimed Murray Energy was using the court as a vehicle to suppress free speech, arguing that this lawsuit "threatens the fundamental right of the media to criticize public figures and speak candidly on matters of public concern".[20]

Due to the media coverage of the brief, Murray Energy filed a response, asking the court to disregard the ACLU's brief on the basis that they did not fully disclose a financial conflict of interest with Oliver's show.[10] The company pointed to a Last Week Tonight segment titled "President-Elect Trump", aired five days after the 2016 presidential election. In the segment, Oliver encouraged viewers to donate to causes perceived to be left-leaning such as Planned Parenthood, the NAACP Legal Defense and Educational Fund, The Trevor Project, the Center for Reproductive Rights, and the International Refugee Assistance Project. The company argued that this encouragement caused an "immediate surge of millions of dollars in donations to the ACLU". Reuters, however, contended that Murray Energy did not provide suitable evidence for this claim; the response cited three news articles that did not support this argument, instead attributing the rise in donations to the result of the presidential election in general.[10] The response also criticized the tone of the ACLU's submission, arguing that the brief's "vulgar language" displayed its unfitness for consideration.[21]

Murray in 2019

For the final portion of the segment, Oliver staged a five-minute musical number titled Eat Shit, Bob! after the miner's returned check.[25] Initially set in his studio, it began with Oliver singing slowly that "even though he'll threaten legal Armageddon, we have just one tiny thing to say..." and then he gave the finger and exclaimed "Bob Murray can go fuck himself today!"[22][26] Oliver then introduced the "Suck My Balls, Bob" dancers, who moved the setting to Times Square as they recounted fictional anecdotes of Murray committing outlandish and horrifying acts.[27] They jokingly sung that he perpetrated the assault of Nancy Kerrigan, spat on the Mona Lisa, cut off Vincent van Gogh's ear, launched puppies into outer space, advised Adolf Hitler to quit painting and "find a new career", sold drugs to Bill Cosby and served as Jeffrey Epstein's prison guard, carried out the assassination of Archduke Franz Ferdinand and started World War I, had sexual intercourse with squirrels, and was the unidentified Zodiac Killer.[12][22][26]

Oliver centered portions of the song on his First Amendment rationale, saying that "we made up these anecdotes, they're silly and insane" and "If we discuss Bob Murray in a way no reasonable person could construe as factual, we can say whatever the fuck we like!" Mr. Nutterbutter made a reappearance as part of a barbershop quartet in squirrel costumes, and Brian d'Arcy James appeared in the role of HBO's legal counsel.[12][28]