Case No. 2015-0127 Plaintiffs-Appellants ) ) V

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IN THE SUPREME COURT OF OHIO

ROBERT E. MURRAY, et al., ) ) Case No. 2015-0127 Plaintiffs-Appellants ) ) V. ) On Appeal from the Cuyahoga ) County Court of Appeals, Eighth Appellate District, CHAGRIN VALLEY PUBLISHING COMPANY, ) et al. ) Case No. 101394 Defendants-Appellees ) )

AMICUS CURIAE OHIO COAL ASSOCIATION'S JURISDICTIONAL MEMORANDUM IN SUPPORT OF PLAINTIFFS-APPELLANTS

Dan L. Cvetanovich (0021980) J. Michael Murray (0019626) Sabrina Haurin (0079321) Lorraine R. Baumgardner (0019642) Bailey Cavalieri LLC Berkman, Gordon, Murray & Devan One Columbus 55 Public Square 10 West Broad Street, Suite 2100 2200 The Illuminating Building Columbus, Ohio 43215-3422 Cleveland, Ohio 44113 Te l ephone : 614.221. 315 5 Telephone: 216.781.5245 Facsimile: 614.221.0479 Facsimile: 216.781.8207 E-mail: [email protected] E-mail: [email protected] [email protected] [email protected]

Counsel for Amicus Curiae Counsel for Defendants-Appellees Chagrin Ohio Coal Association Valley Publishing Company; H. Kenneth Douthit, III; Todd Nighswonger; David C. Lange; Douthit Communications, Inc.; Sali McSherry; and Ron Hill.

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` ..% ' ^, .. '..i1 . >,07..^-a,...... ,.^.^,:^...... ^.« .. .._^ J. Philip Calabrese (0072709) Kevin Anderson, pro hac vice Tracy S. Francis (0080879) PHV Registration No. 3 507-2015 Porter Wright Morris & Arthur LLP Ohio Adinission Pending (0092847) 950 Main Avenue, Suite 500 Fabian & Clendenin, PC Cleveland, Ohio 44113 215 South State Street, Suite 1200 Telephone: 216.443.2542 Salt Lake City, Utah 84111 Facsimile: 216.443.9011 Telephone: 801.323.2225 E-mail: [email protected] Facsimile: 801.596.2814 tfrancis @portenvright. com E-mail: [email protected]

Mark S. Stemm (0023146) Michael Q. McKown (0013378) L. Bradfield Hughes (0070997) Gary M. Broadbent (0083876) Porter Wright Morris & Arthur LLP 46226 National Road 41 South High Street St. Clairsville, Ohio 43950 Columbus, Ohio 43215 Telephone: 740.3 3 8.3100 Telephone: 614.227.2092 Facsimile: 740.33 8.3411 Facsimile: 614.227.2100 E-mail: [email protected] E-mail: [email protected] [email protected] [email protected]

Counsel for Plaintiffs-Appellants Robert E. Murray, Murray Energy Corporation, American Energy Corporation, and The Ohio Valley Coal Company

Samuel L. Pipino (0061634) Molly R. Gwin (0088189) Isaac, Wiles, Burkholder & Teetor, LLC Two Miranova Place, Suite 700 Columbus, Ohio 43215 Telephone: 614.221.2121 Facsimi l e: 614.365.9516 E-mail: [email protected] [email protected]

Counsel for Defendant-Appellee Patriots for Change TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... ii

INTERESTS OF AMICUS CURIAE ...... 1

BACKGROUND ...... 2

A. Ohio Law Recognizes the Vital Importance of the Coal Industry ...... 2

B. Defend.ants Defamed Plaintiffs By Recklessly Publishing Misunderstandings of the Coal Industry ...... 4

THIS APPEAL PRESENTS SUBSTANTIAL CONSTITUTIONAL QUESTIONS REGARDING THE FREEDOM OF SPEECH AND PRESS, AS WELL AS ISSUES OF PUBLIC OR GREAT GENERAL INTEREST CONCERNING THE FALSE-LIGHT AND DEFAMATION TORTS ...... :...... 6

Proposition of Law No. 1: A false-light claim. is distinct from a defamation claim and does not require publication of private matters. Welling v. Weinfield, 113 Ohio St.3d 464, 2007-Ohio- 2451, 866 N.E.2d 1051, and Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (1956) ...... 7

Proposition of Law No. 2: For procedural purposes, such as summary judgment, defamation actions are treated no differently than other actions. Dupler Mansfield Journal Co., 64 Ohio St.2d 116, 120, 413 N.E.2d 1187 (1980), modified; Yiamouyiannis v. Consumers Union of the United States, Inc., 619 F.2d 932, 940 (2d Cir.1980) ...... $

Proposition of Law No. 3: Because a reasonable reader would not regard non-rhetorical or factual statements in "opinions" as hyperbole, such statements may be actionable under defamation law. Scott v. News-Herald, 25 Ohio St.3d 243, 496 N.E.2d 699 ( 1986) ...... 10

CONCLUSION ...... 11,

CERTIFICATE OF SERVICE ...... 13

i TABLE OF AUTHORITIES

CASES

Dupler Mansfield Journal Co., 64 Ohio St.2d 116, 413 N.E.2d 1187 ( 1980) ...... :...... 8

Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (1956) ...... 7

Murray v. Chagrin Valley Publishing Co., Cuyahoga App. No. 101394, 2014-Ohio-5442 ...... :...... 7-8, 10

Neumann v. Liles, 323 P.3d 521 (Or. Ct. App. 2014), review granted, Or, No. S062575, 2014 Ore. LEXIS 833 (Nov. 20, 2014) ...... 1 I

Redman v. Ohio Dept. oflndus. Relations, 75 Ohio St.3d 399, 662 N.E.2d 352 (1996) ...... 2-3

Scott v. News-Herald, 25 Ohio St.3d 243, 496 N.E.2d 699 (1986) ...... 10

Washington Post Co. v. Keogh, 365 F.2d 965 (D.C. Cir.1996) ...... 8

Welling v. Weinfield, 113 Ohio St.3d 464, 2007-Ohio-2451, 866 N.E.2d 1051 ...... 7

Yiamouyiannis v. Consumers Union of the United States, Inc., 619 F.2d 932 (2d Cir. 1980) ...... 8 , 10

CONSTITUTIONS

Article 1, Section 11, Ohio Constitution ...... 10

STATUTES AND REGULATIONS

R.C. 1551.31 ...... :...... 2-3

30 U.S.C. 1201 et seq ...... 3

64 Fed.Reg. 70838, 70847, 70859 ...... 3

RESTATEMENTS

Restatement (Second) of Torts § 652E ...... 7

OTHER RESOURCES

Anderson, Is Libel Law Worth Reforming?, 140 U. Pa. L. Rev. 487, 490 (Dec. 1991) ...... 6, 9

Berkes, Mining Company Pleads Guilty In 2007 Utah Mine Disaster Case, NPR (March 9,2012) ...... 5

ii Brownstein, R., The War on Coal is a Civil Mar, The Atlantic (Sept. 2009) ...... 3

Grunwald, New Carbon Rules the Next Step in Obama's War on Coal, Time (June 1, 2014) ...... 3

Public Utilities Commission of Ohio, Where does Ohio's electricity come from? ...... 2, n.1

Rose, A. and Frias, 0., Pennsylvania State University, The Impact of Coal on the US. Economy, Report to the National Coal Association (April 1994) ...... 2, n.2

Schow, Sierra Club celebrates the "war on coal", The Exaininer (Dec. 11, 2013) ...... 3

U.S. Coal Production by State & by Rank (Thousand Short Tons), NMA ...... 2, n.4

U.S. Energy Information Administration, US. Coal Reserves (Dec. 16, 2013) ...... 2, n.3

U.S. Energy Information Administration, U.S. States; Ohio; State Profile and Energy Estimates (Dec. 18, 2013) ...... 2, n.4

iii INTERESTS OF AMICUS CURIAE

Ohio Coal Association ("Ohio Coal") is a nonprofit association representing Ohio's

underground and surface coal producers (including Plaintiffs-Appellants, hereinafter referred to

as "Plaintiffs") and nearly fifty associate members, including suppliers and consultants to the

mining industry, coal brokers, and allied industries. Ohio Coal is committed to advancing the

development and utilization of Ohio coal. As the voice of Ohio's coal industry, Ohio Coal

speaks to national, state, and local policymakers about issues of interest to the many Ohioans

who produce, supply, sell, transport, utilize, finance, and benefit from millions of tons of coal

extracted every year from Ohio's vast coal reserves. Ohio Coal maintains a website

(www.ohiocoal.com) to educate members and the public about the coal industry, mine safety,

environmental stewardship, regulatory issues, and the storied history of Ohio coal mining.

Ohio Coal has participated as an amicus curiae in appeals before this Court that have, like

this case, presented questions of public and great general interest for the Court to resolve. E.g.,

State ex rel. Ohio Atty. Gen. v. Shelly Holding Co., Case No. 2011-0252; State ex rel. R. T. G.,

Inc. v. State, Case Nos. 2001-074$ and 2001-0976. For the reasons explained below, this

appeal, too, presents compelling questions of interest not only to Ohio's coal industry and its

leaders, including Plaintiff Robert E. Murray and his mining companies, but also to any Ohio

citizen or corporation seeking to protect his or its personal and professional reputations from false and defamatory publications made with reckless disregard for the truth. The decision of

Ohio's Eighth District Court of Appeals, if left uncorrected by this Court, will render the torts of defamation and false-light invasion of privacy ineffective as a practical matter to business leaders and corporations whose reputations are recklessly maligned by false and defamatory publications. BACKGROUND

A. Ohio Law Recognizes the Vital Importance of the Coal Industry.

The coal industry is of vital importance to the State of Ohio and the nation. According to

the Public Utilities Commission of Ohio, coal provides nearly 70% o of the electricity consumed in

Ohio by residential and industrial consumers.l The coal industry directly and indirectly employs

approximately 33,000 Ohioans with studies showing an average of 11 "spin-off' jobs created for

every direct coal-industry employee.2 Coal is an extremely affordable and abundant resource

with an estimated 250-year reserve.3 Ohio ranks tenth among the states in coal production and

third nationally in the consumption of coal following only Texas and Indiana.4

The State of Ohio recognizes the significance of the coal industry as a matter of State

policy in Ohio's Revised Code. Indeed, the General Assembly declared in a statute entitled

"State policy to increase coal use" that it is "imperative for this state to have a strong, viable coal

industry in order to create and preserve jobs and improve the economy of this state." R.C.

1551.31.(E). Similarly, this Court has also acknowledged Ohio's public policy to maximize the

"utilization, development, and production of coal and coal technology in an environmentally and

` Public Utilities Commission of Ohio, Where does Ohio's electricity come from? Available at: http ://www.puco. ohio. gov/puco/index. cfm/consumer-information/consumer-topics/where-do es- ohioe28099s-electricity-come-from/#sthash.M1FULEDT.dpbs (last visited January 8, 2015).

2 Rose, A. and Frias, 0., Pennsylvania State University, The Impact of Coal on the U.S. Economy, Report to the National Coal Association (April 1994).

3 See U.S. Energy Information Administration, U.S. Coal Reserves (Dec. 16, 2013). Available at: http://www.eia.gov/coal/reserves/ (last visited January 8, 2015).

4 U.S. Coal Production by State & by Rank (Thousand Short Tons), NMA. Available at: http://www.nma.org/pdfic_production_state rank.pdf (last visited January 8, 2015). See also U.S. Energy Information Administration, U.S. States; Ohio; State Profile and Energy Estimates (Dec. 18, 2013). Available at: http://www.eia.gov/state/analysis.cfm?sid=OH&CFID= 18206896&CFTOKEN=28d67fBefc876734-E2EC9BD3-25B3-1 C83 -5487B636C945B62C &jsessionid-8430e2b17e326630d0237740574e14784a6e (last visited January 8, 2015).

2 economically proficient manner ***." Redman v. Ohio Dept ofIndus. Relations, 75 Ohio St.3d

399, 407-409, 662 N.E.2d 352 (1996) (citing R.C. 1551.31(A) and (E)). Ohio's public policy in

favor of coal is mirrored at the federal level by Congress, which advanced the policy in a

Congressional Finding when enacting the Surface Mining Control and Reclamation Act, 30

U.S.C. 1201 et seq.the regulatory model for coal mining throughout the nation. Congress

"expressed [an] intent to encourage full utilization of coal, to ensure an expanding underground

mining industry and to encourage longwall mining." 64 Fed.Reg. 70838, 70847, 70859, citing

H.R. Rep. No. 218, 95th Cong., 1 st Sess. 126 (1977).

Despite the coal industry's significance to Ohio and to the nation as a whole, the coal

industry has been under relentless attack in recent years-an attack that tlzreatens to shutter

many of the country's coal mines and coal-fired electric generating plants. Ohio Coal must now

actively defend its members against what commentators of all political stripes accurately

describe as an aggressive "war on coal." See, e.g., Grunwald, New Carbon Rules the Next Step

in Obama's War on Coal, Time (June 1, 2014);5 Schow, Sierra Club celebrates the "war on

coal", The Examiner (Dec. 11, 2013);6 Brownstein, The War on Coal is a Civil War, The

Atlantic (Sept. 2009),7 This "war on coal" has fostered an environment in which coal companies

and their leaders are regularly subjected to false and defamatory assertions in the press and

beyond.

5 Available at: http://time.com/2806697/obama-epa-coal-carbon/ (last visited January 6, 2015).

6 Available at: http://www.washingtonexaminer.com/sierra-club-celebrates-the-war-on- coal/arkicle/2540567 (last visited January 6, 2015).

7 Available at: http://www.theatlantic.com/politics/print/2014/09/am.ericas-coal-fired- divide/379782/ (last visited January 6, 2015).

3 B. Defendants Defamed Plaintiffs byRecklessly Publishing Misrepresentations of the Coal Industry.

The case at issue in this appeal began with an attack against the coal industry fomented

by a group of protesters, Defendant Patriots for Change, whose members, though admittedly

uninforined about the coal industry, nevertheless sought to embarrass Plaintiff Robert E. Murray

by protesting what they wrongly thought they knew about his companies' environmental and

safety records and hiring practices. The protesters did so based on unreliable, unverified Internet

research, and they did so without bothering to contact Plaintiffs to inquire about, much less

verify, the assertions they planned to make. The defendant protestors also failed to seek

Plaintiffs' perspective on the issues before conducting their protest, which took place directly

outside Murray Energy Corporation's offices in Pepper Pike, Ohio.

Then, Defendant David Lange, Editor Emeritus of Chagrin Valley Times, supplemented

the protesters' defamatory statements by publishing his own false and defamatory assertions

about the tragic Crandall Canyon mining accident in Utah based on outdated and false

information that he, too, found on the Internet after a few Google searches. The statements at

issue are demonstrably false, as shown in Plaintiffs' summary-judgment papers, and are

particularly damaging because they were directed at Mr. Murray in the community where his

family lives and because they were aimed at destroying the reputations that he and his mining

companies have developed over more than four decades of work in the coal industry. Several of

the false and defamatory statements at issue reflect Defendants' recklessly published

misrepresentations of Plaintiffs and the coal industry. For example, Lange asserted that a

Murray Energy subsidiary received "the U.S. government's highest penalty" for violations

"determined to have directly contributed" to deaths at the Crandall Canyon mine. But an

Associated Press article Lange admitted reviewing before publishing his Commentary noted that

4 the fine imposed by MSHA regarding violations at the Crandall Canyon mine was nearly $10

million lower than the largest fine ever assessed against a United States coal operation. A jury

should have been permitted to assess evidence demonstrating that Lange's assertion about the

"govern.ment's highest penalty" was recklessly false.

Likewise, despite Lange's assertion in his Commentary, no "determination" was ever

made by any judge that any violations by a Murray Energy affiliate "contributed to" the tragedy

at Crandall Canyon. To the contrary, also readily available to Lange were public statements by

the United States Attorney for the District of Utah that prosecutors "were unable to demonstrate,

given the evidence, a direct connection between the violation[s] and the fatal mine collapse."

Berkes, Mining Cornpany Pleads Guilty In 2007 Utah Mine Disaster Case, NPR (March 9, 2012)

(Emphasis added).8 Thus, a jury should have been permitted to assess whether Lange recklessly

published his false assertion about causation. However, the trial court and the Eighth District

improperly wrested these obvious factual disputes from the jury on summary judgment.

Ohio Coal is a staunch defender of the First Amendment, and the association regularly

engages in free speech on its website, in other publications, and at trade association events and to

advocate causes of interest to its members. Ohio Coal favors robust, uninhibited public debate

on matters of significance to Ohioans, including the coal industry, mine safety, and

environmental compliance. Ohio Coal is, as an organization, engaged in (and supportive of) free

speech.

However, those who engage in that robust debate are properly liable for damages when they cross the line that separates truth and opinion from defamatory falsehoods, as Defendants did here. The First Amendment does not insulate false and defamatory speech from civil g Available at: http://www.npr.org/blogs/thetwo-way/2012/03/09/148319836/mining-company-pleads-guilty-for- 2007-utah-mine-disaster (last visited Jan. 6, 2015).

5 liability, and the torts of defamation and false-light invasion of privacy must provide an effective

backstop against recklessly asserted defamatorv statements that poison that debate and damage

individual and corporate reputations. Those torts will cease to provide any such backstop if

plaintiffs can never get beyond summary judgment and present disputed factual questions of

falsity and actual malice to juries.

As Plaintiffs argue in their jurisdictional memorandum, the Court should accept this

appeal to confirm the summary-judgment standards and procedures applicable to the false-light

and defamation torts. Left uncorrected, the Eighth District's opinion will place jury trials in

defamation and false-light cases beyond the reach of individual or corporate plaintiffs whose

reputations are damaged by defamatory publications, making it impossible for Ohio Coal's

members, other business leaders and public figures, and other Ohio citizens to seek redress for

false and defamatory assertions made with the requisite degree of fault, which would have

disastrous consequences for the State. As First Amendment scholar David Anderson observed:

No matter how much it values speech, * * * a civilized society cannot refuse to protect reputation. Some form of libel law is as essential to the health of the commonweal[th] and the press as it is to the victims of defamation. Without libel law, credibility of the press would be at the mercy of the least scrupulous among it, and public discotirse would have no necessary anchor in truth.

Anderson, Is Libel Law Worth Reforming?, 140 U. Pa. L. Rev. 487, 490 (Dec. 1991).

If today's "war on coal" is to be anything resembling a fair fight, then the assertions made by those fighting it must have some anchor in truth, unless those recklessly publishing falsehoods about the coal industry (and damaging the reputations of its participants) are willing

6 to bear civil liability for publishing them. But the Eighth District's decision leaves Ohio Coal's

members and other Ohioans without any practical means to vindicate their personal or

professional reputations before ajury-and at the mercy of newspaper publishers. Ohio Coal

thus urges this Court to accept this appeal and adopt the following Propositions of Law.

Proposition of Law No. 1:

A false-light claim is distinct from a defamation claim and does not require publication of private matters. Welling v. Weinfield, 113 Ohio St.3d 464, 2007- Ohio-2451, 866 N.E.2d 1051, and Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (1956).

Ohio Coal agrees with Plaintiffs that this Court's guidance is needed to clarify the

contours of the false-light tort that the Court first adopted nearly a decade ago in Welling but has

not revisited since. Because Ohio Coal's members engage in public matters, Ohio Coal has a

compelling interest in the point Plaintiffs raise in their jurisdictional memorandum concerning

the Eighth District's misplaced focus on whether there had been a publication of "private

matters" by Defendants. As Plaintiffs describe, the Eighth District's analysis of Plaintiffs' false-

light claim turned on its view that the "comments made in this case were in regard to public

actions of Murray and Murray Energy or its subsidiaries" and that there were "no untruthful

statements commenting on private matters." Murray v. Chagrin Valley Publishing Co.,

Cuyahoga App. No. 101394, 2014-Ohio-5442, ¶¶ 38-39 (emphasis added). But, in Welling, this

Court did not adopt a requirement that actionable statements for a false-light tort claim must

relate to "private matters"-nor did the authors of the Restatement, in the section adopted by this

Court in Welling. See Restatement (Second) of Torts § 652E cmt. a. ("The form of invasion of privacy covered by the rule stated in this Section does not depend upon making public any facts concerning the private life of the individual.") The Eighth District has impermissibly engrafted a

7 new element onto the false-light tort-an element that was rejected by the authors of the

Restatement and that will make the tort nearly impossible for Ohio Coal.'s members to invoke.

Ohio Coal is also troubled by the Eighth District's conclusion that the Plaintiffs made "no

showing" that the statements at issue "painted [plaintiffs] in a false light rather than a light

merely contrary to Murray's public narrative." Murray, 2014-Ohio-5442, ¶ 39. Defendants

published assertions that Plaintiffs had been fined the United States government's "highest

penalty" for safety violations that were "determined to have directly contributed to" one of this

country's most tragic coal mining disasters. As previously explained, those assertions are

demonstrably false and painted Mr. Murray and his companies in a light that would be highly

offensive to anyone-particularly to someone like Mr. Murray who has spent decades

developing his reputation. in the coal industry. Like Plaintiffs, Ohio Coal's members must have

meaningful recourse to the false-light tort if they are to be so falsely painted in the press.

Proposition of Law No. 2:

For procedural purposes, such as summary judgment, defamation actions are treated no differently than other actions. Dupler Mansfield Journal Co., 64 Ohio St.2d 116, 120, 413 N.E.2d 1187 (1980), modified; Yiamouyiannis v. Consumers Union of the United States, Inc., 619 F.2d 932, 940 (2d Cir.1980).

Ohio Coal also agrees with Plaintiffs that, in light of the federal courts' rejection of

Washington Post Co. v. Keogh, 365 F.2d 965 (D.C. Cir.1966), the very case upon which Court

relied in Dupler v. Mansfield Journal Co. g to favor summary procedures in First Amendment

cases, it is appropriate for this Court to revisit and clarify, for the benefit of the Ohio bench and

bar, the manner in which judges assess the parties' respective summary-judgment burdens in

defamation actions.

9 64 Ohio St.2d 116, 120, 413 N.E.2d 1187 (1980).

8 As commentators have noted, the United States Supreme Court has "never endorsed the

view of some lower courts that summary judgment should be a preferred remedy in defamation

cases to protect the press from the chilling effect of extended litigation." Anderson, supra, 140

U. Pa. L. Rev. at 498. Even so, it is apparent from cases such as this one that there is a heavy

hand on the defendants' side of the scale when it comes to how judges approach summary

judgment in defamation cases. As Professor Anderson has explained: "In practice, the

defendant's ostensible summary judgment burden of negating the existence of any genuine issue

of material fact became a burden on plaintiffs to show affirmatively a basis on which a finding of

actual malice might be made. As a result, media defendants' motions for summary judgment

enjoy unusually high success rates." Id.

This case reflects the phenomenon observed by Professor Anderson. Here, just two days

after the close of summary-judgment briefing, which included the submission of more than 2,500

pages of evidentiary materials (including sworn deposition testimony and affidavits), the trial

court issued a short entry granting summary judgment to Defendants. The trial cotirt did so

without providing any reasoned basis for its ruling despite the many disputes of fact concerning

falsity and malice that Plaintiffs presented to the trial. court, such as those Ohio Coal describes in

the Background section of this memorandum concerning the Crandall Canyon tragedy.

It is critical for Ohio Coal, as it is for any other defamed plaintiff, to have meaningful access to the common-law reputational torts in the event that those critical of the industry cross the critical line that separates protected truth and opinion from actionable falsehoods and defamatory assertions of fact. And meaningful access to the torts means that genuine factual disputes must be resolved by juries. The Eighth District's approach to summary judgment tilts the scale to the extreme in favor of defamation defendants, which only encourages irresponsible

9 and reckless reporting by the press and others, particularly when publishers like these Defendants

recklessly use unverified Google-search results as bases for their assertions. The Court should

take this appeal to confirm that, for purposes of summary judgment, defamation actions are

treated no differently than other actions, and juries-not judges-should resolve all disputed

issues of material fact. Accord, Yiamouyiannis v. Consumers Union of the United States, Inc.,

619 F.2d 932, 940 (2d Cir.1980).

Proposition of Law No. 3:

Because a reasonable reader would not regard non-rhetorical or factual statements in "opinions" as hyperbole, such statements may be actionable under defamation law. Scott v.lVews-Herald, 25 Ohio St.3d 243, 496 N.E.2d 699 (1986).

As a trade association, Ohio Coal routinely asserts its opinions about the coal industry.

But, as the ongoing "war on coal" shows, there is no doubt that some individuals and

organizations hold and publish negative opinions about the industry, as is their right. Neither

Plaintiffs nor Ohio Coal seeks to stifle the free exchange of opinions. After all, as the drafters of

the Ohio Constitution confirmed that "[e]very citizen may freely speak, write, and publish his

sentiments on all subjects ***." Article I, Section 11, Ohio Constitution. But the drafters

included an important caveat, noting that citizens freely expressing their sentiments shall be

"responsible for the abuse of the riaht." Id. (emphasis added). That caveat seems to have been

overlooked in the Eighth District's application of Ohio's unique fact/opinion test.

The Eighth District concluded that Lange's Commentary "[o]n the whole" constitutes protected "opinion" speech for which Plaintiffs could not recover, even though that Commentary is laced with specific false assertions represented to be facts. Murray, 2014-Ohio-5442, at T¶ 20,

21, 30. For example, no reasonable reader could interpret Lange's assertion about the "U.S. government's highest penalty" as anything other than an objectively verifiable assertion of fact-

10 one that Plaintiffs proved false in their summary-judgment papers yet were unable to present to

a jury in support of a defamation or false-light claim.

Ohio Coal's members are regularly the subjects of sharply worded blog posts,

"commentaries," and editorials, particularly in light of the ongoing "war on coal." NVhere those

blogs, commentaries, and editorials contain specific, unverifiable assertions that can be

objectively shown to have crossed the critical line separating opinions from actionable assertions

of fact, Ohio Coal's members need access to the common-law remedies ensuring that publishers

will be "responsible for the abuse of [their] right" to speak, as the drafters of Ohio's Constitution

expressly envisioned.

It is critical for this Court to accept jurisdiction over this appeal to clarify how Ohio's

fact/opinion test applies in scenarios where ostensible "opinion" pieces such as Lange's

Commentary include statements that can reasonably be described only as specific, factual

assertions. The Oregon Supreme Court has recently agreed that this issue presents a question of

great general interest, accepting discretionary review of a fact/opinion case concerning an online

google.com review-another forum for "opinion" speech that may, nevertheless, include

actionable assertions of fact. Neumann v. Liles, 323 P.3d 521 (Or. Ct. App. 2014), review

granted, Or. No. S062575, 2014 Ore. LEXIS 833 (Nov. 20, 2014).

CONCLUSION

Amicus curiae Ohio Coal Association joins Plaintiffs-Appellants Robert E. Murray,

Murray Energy Corporation, American Energy Corporation, and The Ohio Valley Coal

Company in respectfully urging the Court to accept jurisdiction over this appeal. This battle in the ongoing "war on coal" presents substantial constitutional questions concerning the freedom of speech and press, as well as compelling issues of great general interest to Ohio Coal's

11 members and any Ohio citizen or corporation seeking to vindicate his or its reputations by invoking the defamation and false-light torts.

Respectfully submitted,

^: ^.. ^ ^^......

Dan/K Cvetanovich (0021980) Sabrina Haurin (0079321) Bailey Cavalieri LLC One Columbus 10 West Broad Street, Suite 2100 Columbus, Ohio 43215-3422 Telephone: 614.221.3155 Facsimile: 614.221.0479 E-mail: dan.cvetanovic@,baileycavalieri.com [email protected]

Counsel for Amicus Curiae Ohio Coal Association

12 CERTIFICATE OF SERVICE

The undersigned counsel certifies that a copy of the foregoing Amicus Curiae Ohio Coal

Association's Jurisdictional Memorandum in Support of Plaintiffs-Appellants, was sent by first-

class United States mail, postage pre-paid, to each of the following counsel this 26th day of

January 2015.

J. Michael Murray, Esq. Kevin Anderson, Esq., pro hac vice Lorraine R. Baumgardner, Esq. Fabian & Clendenin, PC Berkman, Gordon, Murray & Devan 215 South State Street, Suite 1200 55 Public Square Salt Lake City, Utah 84111 2200 The Illuminating Building Cleveland, Ohio 44113

J. Philip Calabrese, Esq. Michael O. McKown, Esq. Tracy S. Francis, Esq. Gary M. Broadbent, Esq. Porter Wright Morris & Arthur LLP 46226 National Road 950 Main Avenue, Suite 500 St. Clairsville, Ohio 43950 Cleveland, Ohio 44113

Mark S. Stemm, Esq. L. Bradfield Huges, Esq. Porter Wright Morris & Arthur LLP 41 South High Street Columbus, Ohio 43215

Dan ^ . Cvetanovich (0021980)