The CEO of Murray Energy, Bob Murray, has filed what appears to be a baseless defamation lawsuit against John Oliver, for a segment Oliver ran on Murray and his coal company.   Murray, in his complaint, accuses John Oliver of not “fairly characterizing the evidence” and of intentionally omitting information.  Neither of these charges satisfies the legal basis for a defamation lawsuit.  To win, Murray would have to prove that Oliver not only stated facts that are false (or stated opinions based on implied false facts), but that Oliver acted with reckless disregard for the truth.  This “actual malice” high standard applies to plaintiffs who are public figures, a category into which Murray likely falls due to his status as a business leader.

As has been well covered elsewhere, Murray’s complaint is likely meritless and objectionable, perhaps an attempt to chill speech or harass Oliver.  But, perhaps not.  There are lessons we can and should learn from this lawsuit, regardless of its underlying legal validity.

First, Murray’s lawsuit may be a genuine (albeit obnoxious and misguided) attempt to clear his name – to assert his side of the story after Oliver’s 24-minute attack.  Scholars have written about how defamation law has a high standard – which is intended to safeguard important First Amendment rights – and is also binary.  This means Murray either wins or loses, but he cannot win simply by showing that Oliver’s segment distorted the truth or was negligently false.  He must prove actual malice.  So, Murray loses, even if Oliver’s segment was a distortion, or was incomplete.  (I express no view on whether Murray’s version of events is more accurate than Oliver’s; both have vested interests in their own view of the facts.)  One scholar has suggested that defamation law should be less binary, so Murray could also win just by showing falsity, but in that case he would win only nominal damages.  The real damages would be reserved for cases of actual malice.  This continuum of defamation law would allow Murray to protect his reputation without chilling a significant amount of speech.

I generally don’t agree with proposals to alter defamation law.  I believe that defamation law should retain its binary nature and high standard.  Bob Murray should have used his power and status as a public figure to assert his take elsewhere, like in the media, instead of resorting to coercive legal action.  But, we must also recognize that our binary approach to defamation means that John Oliver’s story can be one-sided and incomplete, designed to delight, amuse, and rouse passions.  Late-night comedians have embraced political agendas, but their monologues often fail to present a fully accurate, multifaceted version of events.

This same problem, of presenting an incomplete story to rouse audiences, happened with another late-night comedian, Trevor Noah, on a subject of just as much importance.  After a jury acquitted former police officer Jeronimo Yanez of killing Philando Castile, Noah presented an impassioned monologue about racism in America.  The monologue was poignant, and I do not disagree with his conclusion that bias affects policing in tragic ways.  However, Noah came to the legally wrong conclusion about the jury’s acquittal.  Noah argued that because Castile was behaving legally (and quite politely) by informing Yanez of his licensed weapon, the only way a jury could have acquitted Yanez was if the jury thought that being black was an acceptable basis for an officer to fear for his life. Thus, the jury verdict is major evidence of racism in America.

If the legal standard were that Yanez is guilty unless he reasonably believed Castile to be a threat, I would agree with Noah’s conclusion about what this jury verdict means.  However, in Minnesota, second degree manslaughter means a defendant has to be “culpably negligent,” which involves a degree of recklessness (according to the jury instructions).  So, Yanez had to have consciously disregarded the risk of death, not just acted negligently.  Certainly, Yanez was negligent but, legally (not morally), a case for culpable negligence beyond a reasonable doubt is tougher.

 This jury very well might have properly performed its function.  Yanez may not have consciously considered the risk of giving Castile inconsistent instructions of getting out his license and taking his hand out of his pocket, leading Yanez to believe his life was in danger.  This was horrible police work, but perhaps not criminally culpable negligence, according to Minnesota’s legal standard.

This is not to say that we don’t have serious problems with both police training and racism (and the interaction between the two).  But given the high standard for second degree manslaughter, we cannot know if this jury was racist or just following the law.  The shooting itself may also have been racist.  But extrapolating anything from this jury verdict will unduly inflame audiences and improperly target outrage.   Noah’s speech was surely protected, but that doesn’t make it responsible.

The solution is, as in most cases, more speech.  We can’t sue our comedians into researching stories better.  However, expressing other sides to a story (including the legal intricacies of particular cases) will add other dimensions to these late-night monologues.  And, over time, maybe comedians will become more responsible about how they present complex narratives to the public, which is increasingly both informed and moved by these entertainers.

Edit: Lawyer friends and I have been discussing how exactly these jury instructions should apply and when recklessness attaches, and how that interacts with the very police-friendly definition of justification in the Minnesota jury instructions. If we are having trouble parsing these jury instructions, the jury – which presumably does not have legal training- would have the same.

Edit: I am glad that Philando’s family was able to recover money from the city. I recommend that everyone watch the video of the shooting, and the treatment of Diamond Reynolds afterwards. It is just conscience shocking. We have a long way to go.