So Public Citizen lost round one in their defamation defense against the extremely lawsuit-happy Bob Murray of Murray Energy.
I was sad to hear the news, even as I recalled my own satisfaction at beating that bastard soundly when he sued me.
Last September I signed for a letter-sized package delivered by UPS. It was from the Belmont County Court in Ohio.
For the first time in my life, I had been served.
For an article I wrote and published at The Huffington Post, I incurred Bob Murray's immature and petulant wrath. For reporting a series of incontrovertible facts and sounding a note of caution for any Virginia readers that may have been inclined to vote for Ken Cuccinelli, the GOP candidate for governor, Bob Murray went to court claiming separate counts of defamation and false light invasion of privacy - the very same counts charge in his lawsuit against Public Citizen. His pleading sought "in excess of $75,000" from me and my co-defendant, The Huffington Post.
Fucking amateur. Both him and his lawyers.
The first thing we did was remove the case to federal court. That's important - remember this in about 300 words or so. See... Murray's complaint seeking $75K met the jurisdictional bar that allowed us to take the case out of the local Belmont County courthouse in Murray's back yard and into what my lawyers and I believed would be the much more professional federal courts. Because Murray asked for $75K (if he had asked for $74,999.99 things would have been different), removal was automatic once we requested it.
Huffington Post and I were two separate defendants and we had two separate defenses. My defense was straight-forward: the words I wrote were not defamatory as a matter of law. We prepared our motion for summary judgment and submitted it to the court.
The Huffington Post (and several individual editors) had the same defense, but they also had another (in my opinion, more potent) defense by way of Section 230 of the Communications Decency Act of 1996. The defense is pretty straight-forward and practically bullet-proof. In short, if you didn't write the words, you cannot be held liable for them if they appear on your website. In other words, I, as the author of the allegedly defamatory article in question, was the only person that could be held legally accountable for publishing my words. (Everyone of us should thank Congress for getting that section correct. Without it, the web could not exist as we know it... DailyKos and Blogger and Tumblr and any site that allows comments would be required to moderate and approve every single comment (this would apply to commerce sites like Ebay too), or face the potential for a constant stream of lawsuits).
So Huffington Post filed a separate motion for summary judgment in their favor, citing Section 230 (and other defenses). Murray's lawyers, evidently unaware of Section 230's force, filed an amended complaint that was riddled with lies manufactured from whole cloth. Get this: they suggested that an in-house HuffPo reporter (no need to drag him into this by naming him) actually wrote the article, but the Huffington Post's editors knew their reporter made stuff up all the time. To evade liability for publishing the article, the Huffington Post sought me out and asked me to publish it under my name.
Obviously that story is just plain outlandish. To this day I have never met or communicated with the HuffPo reporter Murray dragged into the case, and nobody else contributed to the article I wrote. What Murray and his lawyers did was manufacture a set of facts that they believed would provide them with a basis for defeating the HuffPo Section 230 defense. Flatly stated - they fucking lied to the court.
In the end, none of it mattered. Judge Martin Frost took a look at the article and agreed with my lawyers: the article simple was not defamatory. Case dismissed. Judge Frost didn't bother analyzing the applicability of Section 230 because without anything defamatory in front of him, he didn't need to reach the issue.
Still... Murray and his lawyers' tactics in the case were breathtaking-ly unethical and may have even been criminal.
That said, I won. With a great legal team (the ACLU took my case and I had other local counsel as well), Murray's little whine was bounced out of the courthouse at the jump.
Public Citizen hasn't been so lucky. Why?
Well, for one thing, they haven't been able to get the case removed to federal court. Instead, it's being heard right in Murray's front yard, at the Belmont County's Court of Common Pleas:
ST. CLAIRSVILLE - Litigation will continue in a suit between Robert Murray and Murray Energy as plaintiff against the activist organization Public Citizen Inc. and Public Citizen Foundation, Inc. for defamation.
Common Pleas Court Judge Frank Fregiato sustained a motion to dismiss suits against advertisers Keymarket of Ohio, Captstar TX, CBS Radio East, Chuck Poet, Jim Elliot, Michael Young and Michael Spacciapolli, concluding these were mere neutral advertising conduits having nothing to do with the defamation.
They are not obligated to verify the truth or falsity of their advertisements.
Those who are alleged to have defamed Murray and Murray Energy Corporation are Public Citizen Inc. and Public Citizen Foundation Inc. These were not dismissed from litigation. Fregiato ruled that litigation may go forward.
I studied defamation at UVa Law School. The words used in my case, and those used by Public Citizen in their ad... Well, they were different, but legally speaking, I don't think the words are materially different. I haven't seen Judge Fregiato's order or any reasoning he used to decide that Public Citizen's advertisement was meant to be accepted as fact rather than the obviously biased opinion of an advocate commenting on matters of public importance, so I suppose it is possible that the Judge saw something I did not.
But then I googled "Frank Fregiato" & "Murray".
Here's a sampling of what was returned:
Murray Brings John Boehner to Wheeling for Fundraiser (#1 result, with picture)
Murray with Fregiato at charity event
I don't have time right now to look for more...
But I am so glad I was able to remove my case to federal court.
Good luck Public Citizen!