Coal Baron and Major Ken Cuccinelli Campaign Donor Sues Blogger for Defamation, Invasion of Privacy

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Robert Murray, owner of the Ohio-based coal giant, Murray Energy Corporationfiled a defamation lawsuit against a prominent liberal blogger and The Huffington Post

Filed on September 25 in Belmont Countyโ€™s Court of Common Pleas, Murrayโ€™s complaint accuses Mike Stark, creator of FossilAgenda.com and Stark Reports, and The Huffington Post of defamation and invasion of privacy stemming from Mr. Starkโ€™s September 20 article, โ€œMeet the Extremist Coal Baron Bankrolling Ken Cuccinelliโ€™s Campaign.โ€

Stark, represented by the American Civil Liberties Union of Ohio and David Halperin, former Senior Vice President of the Center for American Progress pushed back this week, filing a motion asking the presiding federal judge to dismiss charges for the case.

Published in the midst of the heated Virginia gubernatorial race between Republican Virginia Attorney General Ken Cuccinelli and Democrat Terry McAuliffe โ€“ one of Hillary Clintonโ€™s 2008 presidential campaign chairmen โ€“ Starkโ€™s piece apparently struck a nerve with Murray, one of Cuccinelliโ€™s key campaign contributors.

Ken Cuccinelli; Photo Credit: Wikimedia Commons

In the piece published on The Huffington Post, Stark points to the $30,000 that Murray Energy has given Cuccinelli, as well as Robert Murrayโ€™s campaign work on behalf of 2012 Republican Party presidential nominee Mitt Romney. Stark also covers Murrayโ€™s call for the impeachment of President Obama at a recent speaking engagement, along with his firing of 150 workers after Obamaโ€™s 2012 victory over Mitt Romney and the prayer he offered the U.S. public after Obamaโ€™s 2012 victory. 

The rationale behind the defamation suit for Murray boils down to Stark and The HuffPost referring to Murray as an โ€œextremistโ€ and pointing to the firing of the 150 Murray Energy workers as a potential โ€œfulfillment of a promiseโ€ after the 2012 presidential election. 

โ€œThe Defamatory Statementsโ€ฆwere published with maliceโ€ฆ[and] were understood and interpreted by readers of The Huffington Post to be assertions of fact, not opinion,โ€ says Murrayโ€™s complaint. โ€œThese false and defamatory statements have severely harmed the reputation of the Murray plaintiffs [and have] caused great mental anguish and emotional distress for Plaintiff Robert E. Murray and his family members.โ€

To protect free speech and robust public debate, courts make it difficult for well-known public figures to sue for defamation or the related claim of false light invasion of privacy. To avoid those limits, Murrayโ€™s lawyers argue Murray is not a public figure at all.

โ€œMurray is neither a public figure not a limited public figure in that he has neither voluntarily sought public or media attention, nor has he achieved such a status by reason of the notoriety of his achievements,โ€ reads the complaint.

Plaintiffs: Lost Profits, Tarnished Reputation

Of the 39 paragraphs in Murrayโ€™s defamation charge count, nine of them argue Stark and The Huffington Post have damaged Murray personally and professionally and will end up hurting his companyโ€™s profit margins.

โ€œPublication of the Defamatory Statements has caused and will continue to cause Murray and members of [his] family to suffer great mental anguish and emotional distress,โ€ the complaint reads. โ€œMurray Energyโ€™s standing in the business community as a respected corporate citizen has been damaged by the publication of the Defamatory Statements.โ€

For Murray, it all boils down to the possibility of the loss of cold, hard cash.

โ€œPublication of the Defamatory Statements will cause lenders to be less willing to engage in financing transactions with the Murray Plaintiffs, thereby preventing them from gainging access to capital needed to operate their businesses or making it more difficult and expensive for them to obtain such capital,โ€ reads the complaint. โ€œPublication of the Defamatory Statements will cause the Murray Plaintiffs to suffer a loss of business opportunities and loss of potential and/or existing customers for their businesses.โ€

In all, Murray has asked Stark and HuffPost for over $75,000 in damages, plus paying the court fees and costs of Murrayโ€™s attorneys.

Murray is represented by Kevin Anderson of Fabian & Clendenin, who sits on the Utah Mining Associationโ€™s Executive Committee, as well as by two attorneys from Murrayโ€™s in-house counsel and Mark Stemm of Porter Wright Morris & Arthur

Starkโ€™s Attorneys Issue Motion to Dismiss

On November 1, attorneys representing Mike Stark hit back. (The HuffPost has its own set of attorneys working on its behalf who will respond soon.)

They have requested that the judge of record for the case issue an order to dismiss the case on its face, also asking the judge for a date in court to hear out an oral argument between Stark and the Murray Plaintiffs on the motion to dismiss.

Starkโ€™s motion was brought to the U.S. District Court for the Southern District of Ohio, Eastern Division, where the case was removed from the Belmont County Court of Common Pleas, the site Murray originally brought his complaint to. 

ACLU of Ohio and Halperin open up the motion to dismiss with a bang.

David Halperin; Photo Credit: Generation Progress 

โ€œStarkโ€™s article contains no false statements of fact, nor is it misleading, nor does it place Murray in a false light,โ€ they wrote. โ€œMore importantly, for purposes of this Motion to Dismiss, the statements in the article about which Plaintiffs complain are not assertions of fact. Rather, the Complaint takes issue only with opinions offered by Stark in the article.โ€

The rest of the argument tackles the distinction between a straightforward news piece and the opinion-based nature of Starkโ€™s article and pieces published in The Huffington Post

Citing a litany of cases, Starkโ€™s attorneys point to a simple fact: Opinion pieces both in the state of Ohio and as enshrined by the U.S. Supreme Court are essentially legally immune from defamation suits.  

โ€œStark is a persistent, aggressive critic of the coal industry, political conservatives, and others, and an advocate for policy reforms. Thus, the immediate context factor strongly favors viewing Starkโ€™s statements in the article as opinion, not fact,โ€ the attorneys argue in the motion to dismiss. โ€œThe Court may take judicial notice that the Huffington Post blog is a well-known forum for people to write opinion articles โ€“ the online equivalent of a newspaper editorial page.โ€

The defense also fends off Murrayโ€™s attorneys bringing a defamation suit while at the same time saying heโ€™s not a famous individual.

โ€œ[This lacks both] factual support and it is directly contradicted by the Complaint as a whole,โ€ argued the defense. โ€œMurray is the well-known head of one of the countryโ€™s largest corporations, and he has, by his own admission, deliberately asserted himself into public controversies about public policy, politics, and elections.โ€

In order for Murrayโ€™s complaint to prevail, he must prove โ€œactual maliceโ€ on Starkโ€™s part, the defense argues. They donโ€™t think Murrayโ€™s attorneys complaint passes that legal bar and therefore the case should be dismissed out of hand.

โ€œEven if the Complaint were interpreted to allege false statements of fact, this Court should dismiss for the additional reason that Complaint does not allege any facts to support the assertion that Stark acted with actual malice, that is, with knowledge that a statement was false or with reckless disregard for whether a statement was false โ€“ the legal threshold for a defamation claim brought by a public figure,โ€ reads the motion to dismiss.

Defamation Lawsuits as SLAPP Lawsuits

This isnโ€™t Murrayโ€™s first time bringing a defamation lawsuit against a journalist. 

Rather, itโ€™s the continuation of a trend of using suits of this sort as a bludgeon to intimidate journalists from writing stories shedding his actions both as an individual and owner of a major coal corporation in a negative light.

TransCanada โ€“ owner of the Keystone XL tar sands export pipeline โ€“ has used similar legal tactics, utilizing the Strategic Lawsuit Against Public Participation (SLAPP) in its attempt to halt Tar Sands Blockade activists from committing acts of non-violent civil disobedience in Oklahoma and Texas in its attempt to fend off construction of Keystone XLโ€˜s southern half.

โ€œ[Murray] likely realizes that a lawsuit like this has the effect of diverting resources that a writer or activist like Mike Stark might otherwise use to expose and question the actions of Murray, Murray Energy, and the coal industry,โ€ explained Starkโ€™s lawyers. โ€œThis kind of lawsuit could also deter others from engaging in commentary and criticism about Murray and these issues.โ€

Itโ€™s a classic case of the โ€œchilling effect,โ€ with the defense noting Murray has at least two other defamation lawsuits pending in Cuyahoga County, Ohio, also filing suit in 2012 and eventually settling with prominent Charleston Gazetteโ€Ž reporter and author of the โ€œCoal Tattooโ€ blog, Ken Ward, Jr. 

โ€œTo the extent that this lawsuit may have the purpose or the effect of chilling free speech on matters of public concern, it is precisely the kind of situation the courts have sought to address,โ€ the defense wrote in its conclusion.

Under the federal court rules, a response to a motion is due 14 days after the motion is filed, meaning Murrayโ€™s attorneys have until November 15 to rebut the defenseโ€™s motion to dismiss.

Photo Credit: Oil Change International

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Steve Horn is the owner of the consultancy Horn Communications & Research Services, which provides public relations, content writing, and investigative research work products to a wide range of nonprofit and for-profit clients across the world. He is an investigative reporter on the climate beat for over a decade and former Research Fellow for DeSmog.

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