I know you've already explained things twice this week but I have questions.
no mas. no mas.
No, this time it's not about search warrants or grand juries. It's about John Oliver.
Is the question "will smug ridicule take down Trump this time for sure even though it never has before?"
So hostile! Drink some coffee. No, the question is about that defamation case against him.
What about it?
Everyone seems to think that the defamation case is obviously bogus. But I read that Oliver just lost some sort of important motion. What's going on?
The defamation case filed by squirrel fancier, Dr. Evil wannabe, and long-time vexatious litigant Robert E. Murray against John Oliver and HBO is patently frivolous. It's a my-team-pleasing screed, a mawkish whinefest about an entertainer engaging in First-Amendment-protected satire and ridicule. If his attorneys had any character or ethics they'd be ashamed. The ACLU filed an arguably self-indulgent but still pretty thorough brief ripping the foolish suit apart.
So if it's so bogus, how did John Oliver lose an important motion?
Well, Murray filed the defamation suit in state court in West Virginia, Oliver's attorneys removed the case to federal court, and the federal judge just remanded it to state court.
Oh. Well, that's clear. I see. Yes. Totally.
You have no idea what any of that means.
No I do not.
Okay. Federal courts are courts of "limited jurisdiction." That means you can't just bring any case to federal court. You can only bring cases in areas where the federal courts have been given authority by the Constitution and federal law.
There are two main types of federal court jurisdiction. The first is federal question jurisdiction. So if you sue me for copyright infringement, or a federal civil rights violation, or even — God help me — RICO, you can file that lawsuit in federal court.
The second main type of federal jurisdiction is diversity jurisdiction. The Founders put diversity jurisdiction in the Constitution because they were concerned that state courts might not be fair to litigants from another state. Diversity jurisdiction works like this: if the plaintiffs are all from different states than the defendants, and the "amount in controversy" — the amount being demanded — is high enough, the case can be filed in federal court.
But Murray's case was filed in West Virginia state court, not federal court.
That's right. But when a plaintiff files a case in state court, and the defense thinks that case is eligible for federal jurisdiction under federal question or diversity jurisdiction, the defense can move it to federal court. That's called removal. Once there, the plaintiff can file a motion asking the federal judge to send it back to state court on the grounds that it's not actually eligible for federal jurisdiction. That's called remand.
Is it all actually more complicated than that?
Oh hell yes. There's all sorts of complicated questions. How do you figure what state a party is from, especially if they're a multi-state company? How do you tell how much is in dispute if it's not spelled out in the complaint? What happens when a case has federal causes of action (like copyright) and state causes of action — does the federal judge always have to hear the state causes of action? This is what litigators do all day.
So what happened here?
John Oliver's attorneys predictably removed the case to federal court. They thought they'd get a fairer shake from a federal judge, and probably that a federal judge would respond better to complex First Amendment arguments and good briefing.
Murray's attorneys, predictably, asked the federal judge to remand the case. Some of the plaintiffs in the case are Murray's companies, some of which are incorporated in Delaware. HBO, one of the defendants, is also incorporated in Delaware.
So, that means that there was no diversity jurisdiction, because all of the plaintiffs weren't from different states than all of the defendants, right? Why would the defendants try to remove to federal court, then?
John Oliver's attorneys had a theory. There's a doctrine called "fraudulent joinder." The idea is that a plaintiff can't add on plaintiffs with no plausible claims or defendants with no plausible liability simply to destroy diversity and prevent removal. Oliver's lawyers argued that Murray's companies themselves didn't have plausible claims because all of Oliver's ridicule was about Murray, and so the only reason the companies were added was to prevent diversity and stay out of federal court.
The United States District Court Judge rejected that theory and remanded the case to state court. The judge pointed out that it's extremely difficult for a defendant to prove fraudulent joinder. A defendant has to show that even if the court accepts all of the plaintiffs' factual and legal allegations, it's still clear that the fraudulently joined party doesn't belong in the case — that there is "no glimmer of hope" for relief for or against that party. The court found that because the satire and ridicule about Murray concerned the way he ran his companies, those companies were plausibly implicated in the statements and could plausibly assert defamation on the grounds that the statements were about them. So — because some of the plaintiffs and one of the defendants are "from" the same state (in the sense that they're all corporations incorporated in Delaware), there's no diversity jurisdiction, and the case had to go back to state court.
Does that mean that the federal court agreed with Murray and rejected John Oliver's First Amendment defenses?
No. Though Oliver argued the First Amendment points in his opposition to remand, I don't think it was a good argument — that's an argument that the entire case is bogus, not that the case against the companies in particular is bogus. It has nothing to do with whether the companies were fraudulently joined. The federal judge didn't address the speech defenses at all, and emphasized repeatedly that the standard on the motion is extremely favorable to the plaintiff, requiring the defendant to show that even if you assume all of the plaintiff's legal and factual arguments are right that the party still doesn't belong in the case. So it doesn't reflect a judgment on the speech defenses at all.
For what it's worth, John Oliver's lawyers also previewed their speech defenses in an brief in opposition to Murray's utterly ridiculous demand for an order forcing everyone to stop making fun of him. Murray's lawyers didn't even reply to the substance — they just submitted a short brief saying, in effect, it was none of the federal court's business, because the state court should hear it.
Murray seems pretty confident that a West Virginia state court will give him what he wants. Is he right?
I would not assume he is.
Look, I'm as vulnerable to big-city big-school big-firm lawyer attitudes as anyone. But over my career, especially in criminal cases, I've seen judges in courts that big-city people would call "rural" or "remote" or "conservative" give my clients some of the most thorough, prepared, thoughtful treatment I've seen in any court. I've learned, often happily, not to make such assumptions.
So John Oliver and HBO should definitely win?
I wouldn't go that far either. I'd wait and see.
West Virginia doesn't have an anti-SLAPP statute. That is, they don't have a statute that allows defendants in clearly bogus censorious cases get out early and collect attorney fees. That makes it much harder to get rid of even a transparently bogus lawsuit and much easier for Murray's lawyers to abuse the law to harass and retaliate against John Oliver for ridiculing their client.
There are two problems here. One is the lack of consistently strong anti-SLAPP statutes across the country. The other is the continued existence of unethical, thuggish lawyers frankly hostile or indifferent to core American values who are willing to abuse the system in pursuit of the "principle" that rich people ought not have to tolerate criticism or mockery. These are simply bad people, and they should be treated that way. They are aided — probably deliberately, by people who do not honestly support the American value of free speech — by the general anti-media sentiment cultivated by some elements of society.
Yeah. So, you know, fuck those guys.
Last 5 posts by Ken White
- Hate Speech Debate on More Perfect Live - September 5th, 2017
- Popehat Goes To The Opera: Un ballo in maschera - August 19th, 2017
- Department of Justice Uses Search Warrant To Get Data On Visitors to Anti-Trump Site - August 14th, 2017
- America At The End of All Hypotheticals - August 14th, 2017
- Lawsplainer: Why John Oliver Is Anti-Diversity Now - August 11th, 2017