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Case No. 2015-0127 Plaintiffs-Appellants ) ) V '.•':F.}^'^i ^.. 3^^^^ 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. ^'^' .. l i . ..:i.' r ^ f f n ' # ` ..% ' ^, .. '..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
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