A coal magnate’s latest lawsuit was tossed—but Ohio can do more to defend free expression

Anti-SLAPP statute could offer greater protections to journalists and commentators

Michael Stark, a contributor to The Huffington Post. Ken Ward, a reporter for The Charleston Gazette. Margaret Newkirk, a former reporter for the Akron Beacon Journal. What do they have in common? Murray Energy, the largest privately owned coal company in the United States—which has accused them all of publishing defamatory articles about the company or its founder and president, Robert E. Murray.

They’re not the only ones. In the last 15 years, Murray and/or his company, whose operations dot the Ohio Valley, have also sued a team of journalists at Ohio’s Chagrin Valley Times; and threatened to sue Steve Fiscor, editor of Coal Age and Engineering & Mining Journal, and R. Larry Grayson, a writer and professor emeritus of energy and mineral engineering at Penn State University.

At least one of those cases is ongoing, and none has produced a judgment on the merits for the plaintiffs—instead the cases have settled, or the journalists so far have prevailed on pre-trial motions. Just this month, on May 12, a federal judge in Ohio dismissed Murray’s claims against Stark for defamation and false light invasion of privacy. A few days earlier, a state judge in Ohio granted the Chagrin Valley Times’ motion for summary judgment in a case Murray brought in 2012. (He’s filing an appeal.)

Why is Murray so litigious? According to the company, it’s not. In an emailed statement, Murray Energy said the company and its owner “maintain very good working relationships” with hundreds of news outlets, use defamation lawsuits only “as a last resort to contest false and damaging lies,” and “have never used defamation lawsuits to chill free speech.”

But, the statement continued: “An individual can be destroyed by a pen just as easily as a bullet and we will always push back against those who seek to defame us.” (The full statement is posted at the end of this article.)

Murray has every right to defend his reputation and to use defamation law to redress real harms—and to the extent he’s trying do to that, good for him. But the company is a major player in local economies, Murray himself is active in politics, and his record of suing journalists or threatening to sue them—whatever his motivations—does stand to chill reporting on business and industry practices that are of public concern. And, in at least some of the suits Murray has filed or threatened, his actions appear to offend traditional notions of free expression.

It’s to guard against just such concerns that 28 states have enacted so-called anti-SLAPP statutes, designed to defang Strategic Lawsuits Against Public Participation. Ohio does not have such a statute, and while in my judgment it’s likely that one with the standard provisions would have applied to some of Murray’s lawsuits, in practice the outcome would hinge on the particular statute’s provisions and each case’s facts. More on that below—and more generally, I’d encourage Buckeye State lawmakers to pass an anti-SLAPP statute. It would be a welcome press freedom prophylactic.  

For the time being, though, it’s worth taking a closer look at how some of Murray’s defamation actions have played out—starting with the Stark suit.

Three factors all point to dismissal

In that case, Murray’s claims arose from an article The Huffington Post published Sept. 20, 2013, under Stark’s byline and the headline “Meet the Extremist Coal Baron Bankrolling Ken Cuccinelli’s Campaign.” Murray and his company claimed the article was actionable because it implied that Murray fired more than 150 miners as a result of President Obama’s reelection.

The issue at the heart of Murray’s complaint, before Judge Gregory L. Frost in the US District Court for the Southern District of Ohio, was whether certain terms and phrases in the article were false statements of fact or protected opinion. To make that determination, and ultimately to evaluate whether the complaint stated a plausible claim for relief, the court considered (1) the language used in the article, (2) whether the statements were verifiable, and (3) the context of the statements. Let’s take them one by one.

(Disclosure: I’m a member of the board of directors for the ACLU of Ohio, which served as Stark’s co-counsel, but I did not participate in the case in any way, nor did I vote on whether the Ohio affiliate should take the case in the first place. I had no involvement whatsoever in the case.)

Language. Frost found that the article connected the election result and firings, but concluded that the connection wasn’t actionable, reasoning, “[T]he article at issue here ‘does not expressly state or clearly imply’ that the subject of the article acted with an illicit motive.” The article “engages in conjecture that Murray may have acted out of spite,” Frost went on, “which begs the response of: so what?… Pettiness is not a crime.” The basic idea: Speculation regarding motivation doesn’t amount to a factual statement, one of the elements of a defamation claim under Ohio law.

Moreover, Frost rejected the claim that the article’s reference to Murray as an “extremist” was actionable. Murray said the reference painted him “as an unhinged, even dangerous zealot who cares so little about his employees that he would not give a second thought to firing them en masse just to make a political point.” Frost concluded that in context it’s “not likely that the average reader would understand the use of the word [extremist] as communicating an objective fact as opposed to presenting a subjective opinion.”

Verifiability. Murray claimed the offending statements were framed to suggest they were substantiated by facts—and argued that because the company made public statements regarding its motivation to fire the miners, any reporting of other motivations could not be protected opinion. Frost disagreed. First, he noted that, under Ohio law, if a “statement lacks a plausible method of verification, a reasonable reader will not believe that the statement has specific factual content.” Second, he found that even if “Murray understands why he acted, no one else can verify his thought processes.”

Further, Frost held it wasn’t possible to verify the reference to Murray as an “extremist,” a label that echoed “similarly hyperbolic descriptions” that have failed under Ohio law to qualify as actionable statements. For example, in the 2001 case Wampler v. Higgins, the Ohio Supreme Court considered whether certain terms in a letter to the editor—describing a rent proposal as “exorbitant,” a person as “ruthless,” and a company as “faceless,” “mindless,” and “heartless”—were subject to objective proof. The court said no, that those terms were standardless, and Frost extended that reasoning to the “extremist” reference, concluding, “There is simply no way to verify the label.”

Context. In the most interesting part of his opinion, Frost analyzed the context of the article’s allegedly defamatory statements, looking at the entire article as a whole and the publication where it appeared. Finding that the statements “were clearly made in the general context of opinion,” the judge noted that the article was written in a “conversational style that explicitly injects the author into the text,” employing sarcasm and offering “outright opinions.” Frost said:

[A]s with much contemporary journalism, [the article] engages in the unmasked expression of subjective judgment as opposed to coating itself in a veneer of who-what-where-when objectivity … This is not to say that the article is devoid of facts. It includes both facts and opinions, presented more as an argument/call for concern than as an attempt only to engage in the traditional Five Ws of old-school journalism … [Thus], the impression the article likely creates in the mind of the average, reasonable reader is that the targeted statements are opinion.

Notably, Stark earlier had asked Frost to accept as fact that The Huffington Post, namely its blog, is a “forum for people to write opinion articles” and “the online equivalent of a newspaper editorial page”—but the judge declined to do so. He said simply that the “forum involved here and the nature of the publication (a blog as opposed to a news page) may be at times akin to a traditional print newspaper’s opinion pages, or at least a sufficiently opinionated cousin,” thereby offering some support for the conclusion that the statements were made in the context of opinion.

On those bases, Frost ruled that Murray failed to present a plausible defamation claim, holding that the statements at issue were protected opinion and not actionable. And, on those same bases, the judge also dismissed the false light invasion of privacy claim, saying Murray provided no evidence to support his allegation that Stark’s statements of fact were knowingly false or that Stark and the other defendants acted recklessly with regard to any facts—elements of a false light claim under Ohio law.

Overall, the Stark case is useful because it reaffirmed long-held principles that provide assurances in defamation cases that public debate, as the US Supreme Court said in the 1990 case Milkovich v. Lorain Journal Co., “will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation.”

Now, what about the other journalists and commentators—Ward, Newkirk, Fiscor, and so on—whom Murray has sued or threatened with suit? Here’s the non-exhaustive, CliffsNotes version of their disputes:

  • In 2012, Murray sued Ward and The Charleston Gazette after Ward wrote a blog post about Mitt Romney and Murray. It reported that Murray “played a major role” in a Romney presidential campaign fundraiser and that the question for Romney was “whether he thinks criminal behavior by coal companies, especially when it kills workers and damages the environment, is acceptable. If not, why is he buddies with Bob Murray?” In his complaint, Murray alleged that Ward’s post was defamatory because it implied that Murray and his company were criminals. Murray and the paper quickly reached a settlement, with the Gazette (1) agreeing to publish a response by Murray to the post that prompted his suit, and (2) not admitting the paper published anything incorrect or defamatory.
  • In 2012, Murray sued reporter Sali McSherry, editor David Lange, cartoonist Ron Hill, and the Chagrin Valley Times for the paper’s coverage of a protest at Murray’s facility in Pepper Pike, OH. The paper carried an article by McSherry reporting on the protest, an editorial by Lange criticizing Murray, and a cartoon by Hill lampooning Murray. For his part, Murray claimed McSherry’s article defamed him by reporting, among other things, that he manages through “intimidation,” that his employees “have no voice,” and that he’s a “bully.” Murray claimed Lange’s editorial and Hill’s cartoon defamed him by commenting, among other things, that to Murray coal miners’ lives are “meaningless,” that he’s “disdainful toward regulations,” and that he’s a “real liar.” On May 9, the trial judge granted the paper’s motion for summary judgment, and Murray on May 14 filed his notice of appeal.
  • In 2007, Murray threatened to sue Fiscor, the editor of Coal Age, and Grayson, the Penn State professor, for stories they wrote after the Crandall Canyon mine collapse that killed six miners (Murray is the mine’s co-owner). Grayson wrote a column for The Salt Lake Tribune criticizing Murray’s “bombastic” performance in news briefings following the collapse, and Fiscor wrote a column for Coal Age saying the coal industry “takes the ostrich approach when [Murray] takes the microphone, hoping that he will go away soon and that no one will notice.” Through his general counsel, Murray sent each writer a letter demanding immediate retractions and the publication of “an apology acceptable” to Murray, noting that failure to do so would “lead to immediate legal action.” Grayson refused to retract or apologize, though the Tribune carried a response by Murray’s chief financial officer. Coal Age apologized if any readers understood Fiscor’s column as “attacking” Murray—and yet stood by the column and refused to call the apology a retraction.
  • In 2001, Murray sued Newkirk and the Beacon Journal after Newkirk wrote an article that was part of a series on Ohio’s coal-burning utilities. Under the headline “Mine Owner Isn’t the Shy, Quiet Type,” the article was a profile of Murray and his status in the coal industry. Murray claimed it defamed him by describing him as ill, loud, hyperbolic, and prone to exaggerate. In 2002, the trial court dismissed the case, but Murray appealed—and won. In 2004, the appeals court reversed and remanded for further proceedings, and, one year later, Murray and the newspaper reached a settlement. The Beacon Journal published something Murray called a “retraction” admitting that the article contained material “from which a reader could have drawn incorrect conclusions” about Murray—and adding that the paper didn’t “mean to imply any such conclusions” and “regrets any harm to [Murray], his family or his business.”

Evident are the effects

Again, Murray’s willingness to sue journalists and commentators is not inherently a bad thing. Reputation is one of a person’s or organization’s most important possessions—and by protecting reputation, through defamation principles, the law acknowledges the dignity of every person and organization. Murray has every right to defend his reputation.

However, to the extent Murray is using defamation law simply to chill criticism of himself or his company, his actions are disconcerting. The right to think what you will and say what you think is one of our nation’s enduring principles, and in some instances—I’d flag in particular the Ward and Stark lawsuits and the threats against Fiscor and Grayson, all of whose merits are highly questionable—Murray has looked the part of an oppressor, using his superior resources to discomfit people who criticize him or his company. In that sense, his actions embody the spirit if not the letter of a SLAPP.

In its most basic form, a SLAPP is a civil complaint filed or threatened (often by a business or special interest) against a person or organization that speaks out on issues of public concern. SLAPPs are usually disguised as defamation or invasion of privacy claims, and they’re not necessarily designed to achieve a favorable resolution on the merits. Rather, they’re designed to intimidate and to discourage the target and others from speaking out.

I’m not sure that all of the suits or threats discussed here fit that bill, but, as flagged above, some appear to. And, whether or not Murray intends to use defamation law simply to chill criticism, evident are the effects of his record of suing journalists or threatening to sue them.

Fiscor refused to talk with me about Murray (a source close to Fiscor said he’s afraid Murray will take legal action), and in my quick review of the Coal Age website I found reporting on Murray but no opinions expressed. Newkirk did not respond to a request for comment, probably because she’s bound by a confidentiality agreement from her Beacon Journal settlement.

Ward and Grayson told me they’re well aware of Murray’s litigation history—and Grayson said that history made him question in 2007 whether to publish his Tribune column. Michael Murray, attorney for the Chagrin Valley Times and no relation to Robert, called the coal magnate “notorious,” and David Halperin, who represented Stark, along with the ACLU of Ohio, said it was “disturbing” that Murray sued Stark for an article whose only factual allegations were “widely reported” by other news outlets.

The state of Ohio, where Murray filed all of the suits discussed above, has not enacted an anti-SLAPP statute. That kind of measure, which again is available in 28 states, provides special protection for speech on issues of public concern and a legal mechanism for dismissal of a SLAPP, plus recovery of attorney’s fees and court costs.  

In the other 22 states, like Ohio, options are more limited for targets of a SLAPP. Basically, the defendant can file a motion to dismiss, and if that fails, she can file a motion for summary judgment, and if that fails, she must prepare for trial or negotiate a settlement. The Stark, Chagrin Valley Times, and Beacon Journal disputes all followed that path to a point.

To be clear, I don’t know whether an anti-SLAPP statute would have neutered all of the lawsuits discussed above—but in my judgment it’s likely that such a statute with the standard provisions would have applied to some of the suits (I’d flag in particular Ward’s and Stark’s, whose merits are highly questionable). In practice, the outcome would hinge on the particular statute’s provisions and each case’s facts.

Suffice it to say that whatever his motivation, Murray has a record of suing journalists or threatening to sue them—and the effects are evident.

Even I thought twice before writing this article, and I’m a First Amendment lawyer.

***

Full statement from Murray Energy:

Murray Energy Corporation (“Murray Energy”) and Mr. Robert E. Murray have never used defamation lawsuits to chill free speech. Instead, we have only used defamation lawsuits as a last resort to contest false and damaging lies about our employees, our management, and our Companies.

Indeed, we maintain very good working relationships with around three hundred (300) news organizations. It is quite rare for these interactions to result in litigation.

All of Murray Energy’s 7,300 employees, our lenders, our customers, and residents of our communities depend on the reputation and goodwill of Murray Energy and Mr. Murray himself.

When Murray Energy and Mr. Murray are libeled or defamed, these entities who depend on our Company and him, again, our employees, lenders, customers, and members of our community, are the ones who are often hurt.

Indeed, an individual can be destroyed by a pen just as easily as a bullet and we will always push back against those who seek to defame us.

Remember, we are always reacting to unlawful speech, never do we take the offensive.

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Jonathan Peters is CJR's press freedom correspondent. An attorney, he is an assistant professor of journalism at the University of Kansas, where he teaches and researches media law and policy, with an affiliate research position exploring big data and Internet governance in the KU Information & Telecommunication Technology Center. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters. Tags: , , , , , , , ,