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.)