In the Supreme Court of Ohio

Supreme Court of Ohio Clerk of Court - Filed February 23, 2015 - Case No. 2015-0127

IN THE SUPREME COURT OF OHIO

ROBERT E. MURRAY, et al., : Ohio Supreme Court Case No. 15-0127 : Plaintiffs-Appellants, : : v. : On appeal from Cuyahoga County Court of : Appeals, Eighth Appellate District THE CHAGRIN VALLEY PUBLISHING : COMPANY, et al., : Court of Appeals Case No. 101394 : Defendants-Appellees. : :

MEMORANDUM IN RESPONSE TO APPELLANTS’ MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLEES THE CHAGRIN VALLEY PUBLISHING COMPANY; H. KENNETH DOUTHIT, III; TODD NIGHSWONGER; DAVID C. LANGE; DOUTHIT COMMUNICATIONS, INC.; SALI A. MCSHERRY; AND RON HILL

J. MICHAEL MURRAY (0019626) (COUNSEL OF RECORD) [email protected] LORRAINE R. BAUMGARDNER (0019642) [email protected] BERKMAN, GORDON, MURRAY & DeVAN 55 Public Square, Suite 2200 Cleveland, OH 44113 (216) 781-5245 / (216) 781-8207 (facsimile) Attorneys for Defendants-Appellees The Chagrin Valley Publishing Company, H. Kenneth Douthit, III, Todd Nighswonger, David C. Lange, Douthit Communications, Inc., Sali A. McSherry, and Ron Hill

Mark S. Stemm (0023146) (COUNSEL OF RECORD) [email protected] L. Bradfield Hughes (0070997) [email protected] PORTER WRIGHT MORRIS & ARTHUR LLP 41 South High Street, Suite 3200 Columbus, Ohio 43215

(Continued) J. Philip Calabrese (0072709) [email protected] Tracy S. Francis (0080879) [email protected] PORTER WRIGHT MORRIS & ARTHUR LLP 950 Main Avenue, Suite 500 Cleveland, Ohio 44113

Kevin Anderson, pro hac vice PHV Registration No. 3507-2015 Ohio Admission Pending (0092847) [email protected] FABIAN & CLENDENIN, PC 215 South State Street, Suite 1200 Salt Lake City, Utah 84111

Michael O. McKown (0013378) [email protected] Gary M. Broadbent (0083876) [email protected] 46226 National Road St. Clairsville, Ohio 43950

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

Samuel M. Pipino [email protected] Molly Gwin [email protected] WILES, BOYLE, BURKHOLDER & BRINGARDNER CO., L.P.A. 300 Spruce Street, Floor One Columbus, Ohio 43215

Attorneys for Defendants-Appellees Patriots for Change TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...... ii

THIS CASE DOES NOT PRESENT AN ISSUE OF PUBLIC OR GREAT GENERAL INTEREST...... 1

ARGUMENT IN SUPPORT OF APPELLEES’ POSITION ON PROPOSITIONS OF LAW IN MEMORANDUM IN SUPPORT OF JURISDICTION...... 7

Appellees’ Counter Proposition of Law I: Defamation and false-light privacy both require a showing that the statements at issue are materially false and were published with knowledge of their falsity or with reckless disregard for the truth; failure to establish either of these requirements dooms claims under both torts. Welling, 113 Ohio St.3d 464, 866 N.E.2d 1051, 2007-Ohio-2451 at ¶¶ 52, 61...... 7

Appellees’ Counter Proposition of Law No. II: At the summary judgment stage, a public figure defamation plaintiff must demonstrate by clear and convincing evidence that the defendant acted with actual malice. Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 119, 413 N.E.2d 1187 (1980); Varanese v. Gall, 35 Ohio St. 3d 78, 81, 518 N.E.2d 1177 (1988); Grau v. Kleinschmidt, 31 Ohio St. 3d 84, 90, 509 N.E.2d 399 (1987); Perez v. Scripps-Howard Broad. Co., 35 Ohio St. 3d 215, 218, 520 N.E.2d 198 (1988); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)...... 8

Appellees’ Counter Proposition of Law III: Four factors guide the analysis of whether statements forming the basis of a defamation claim constitute protected opinion or statements of fact: the specific language used, whether the statement is verifiable, the general context of the statement, and the broader context in which the statement appeared. Scott v. News Herald, 25 Ohio St.3d 243, 496 N.E.2d 699 (1986); Vail v. The Plain Dealer Publishing Co., 72 Ohio St.3d 279, 649 N.E.2d 182 (1995); McKimm v. Ohio Elections Comm., 89 Ohio St.3d 139, 729 N.E.2d 364 (2000) and Wampler v. Higgins, 93 Ohio St.3d 111, 752 N.E.2d 962 (2001)...... 14

CONCLUSION...... 15

i TABLE OF AUTHORITIES

Page

CASES

Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St. 3d 366, 2012-Ohio-4193, 978 N.E.2d 832...... 1, 9

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)...... 6, 8, 9, 13

Bukky v. Painesville Tel. & Lake Geauga Printing Co., 68 Ohio St. 2d 45, 428 N.E.2d 405 (1981)...... 9

Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 413 N.E.2d 1187 (1980)...... 6, 8, 12, 13

Farah v. Esquire Magazine, 736 F.3d 528 (D.C. Cir. 2013)...... 7

Grau v. Kleinschmidt, 31 Ohio St. 3d 84, 509 N.E.2d 399 (1987)...... 6, 8

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988)...... 12

Jackson v. City of Columbus, 117 Ohio St. 3d 328, 2008-Ohio-1041, 883 N.E.2d 1060...... 13

Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563 (D.C. Cir. 1984)...... 6

McKimm v. Ohio Elections Comm., 89 Ohio St.3d 139, 729 N.E.2d 364 (2000)...... 14, 15

Murray v. HuffingtonPost.com, Inc., 21 F. Supp.3d 879 (S.D. Ohio 2014)...... 5, 8, 12

Ollman v. Evans, 750 F.2d 970 (D.C. Cir.1984)...... 15

Perez v. Scripps-Howard Broad. Co., 35 Ohio St. 3d 215, 520 N.E.2d 198 (1988)...... 6, 8

Scott v. News Herald, 25 Ohio St.3d 243, 496 N.E.2d 699 (1986)...... 7, 14, 15

ii TABLE OF AUTHORITIES (cont’d)

State v. Coleman, 117 Ohio App. 3d 726, 691 N.E.2d 369 (1997)...... 14

State v. Radcliff, 2015-Ohio-235...... 14

Vail v. The Plain Dealer Publishing Co., 72 Ohio St.3d 279, 649 N.E.2d 182 (1995)...... 7, 10, 14, 15

Varanese v. Gall, 35 Ohio St. 3d 78, 518 N.E.2d 1177 (1988)...... 6, 8, 12

Wampler v. Higgins, 93 Ohio St.3d 111, 752 N.E.2d 962 (2001)...... 7, 14, 15

Washington Post Co. v. Keogh, 365 F.2d 965 (D.C. Cir. 1966)...... 6, 7

Welling v. Weinfeld, 113 Ohio St. 3d 464, 2007-Ohio-2451, 866 N.E.2d 1051...... 1, 5, 7

CONSTITUTIONAL PROVISIONS

Ohio Constitution, Article I, Section 11...... 2, 8

United States Constitution, amend. I...... 2, 5, 8, 13

STATUTES, RULES AND REGULATIONS

30 CFR § 50.1(h)(9)...... 4

30 CFR § 50.10...... 4

MISCELLANEOUS

C. Barylak, Reducing Uncertainty in Anti-Slapp Protection, 71 Ohio St. L.J. 845 (2010)...... 14 http://www.anti-slapp.org/your-states-free-speech-protection/...... 14

iii THIS CASE DOES NOT PRESENT AN ISSUE OF PUBLIC OR GREAT GENERAL INTEREST.

The law of defamation and false-light privacy is straightforward and well-developed. See Am.

Chem. Soc. v. Leadscope, Inc., 133 Ohio St. 3d 366, 2012-Ohio-4193, 978 N.E.2d 832, ¶ 104

(Pfeifer, J., concurring in part, dissenting in part) (“The law on defamation is not complicated.”);

Welling v. Weinfeld, 113 Ohio St. 3d 464, 2007-Ohio-2451, 866 N.E.2d 1051, ¶ 61 (adopting the

Restatement of the Law 2d, Torts, Section 652E). Applying that body of law, the Eighth District

Court of Appeals conducted an independent review of the record and determined Appellants’ claims under those theories fell short. It, therefore, affirmed the trial court’s entry of summary judgment in favor of Appellees.

Appellants claim the court’s analysis went awry, and urge this Court to accept review so it can correct the result and provide “guidance on fundamental issues regarding the false-light invasion of privacy tort and defamation law.” Memorandum in Support of Jurisdiction at 1. But before discussing why Appellants fail to make the case for review by this Court, a brief discussion of how the case arose will help put the issues in their proper context.

Appellant Robert Murray, the CEO of Murray Energy, owns and operates coal mines. He has long been an energetic advocate for the coal industry and an outspoken critic of those he views as its enemies–one of whom is President Obama.

The day after President Obama’s reelection, Murray Energy issued press releases announcing three of its subsidiaries were laying off a total of 163 employees. The press releases referenced “the

‘War on Coal’ by the administration of President Barack Obama” and the effect of that “war” on coal markets. The following day, Murray Energy issued another press release sharing a prayer Murray had delivered to his staff the day after the election, lamenting the choice the voters had made, and sharing

Murray’s outline of his pessimistic view of America’s future in the election’s wake. The lay-offs and Murray’s prayer were picked up and reported on by the local and national press, including Fox

News who interviewed Murray on national television about the lay-offs, his prayer, and the

President’s “anti-coal” policies.

In response to Murray’s statements to the press, Appellees Patriots for Change organized a protest at Murray Energy’s offices in Pepper Pike, Ohio, voicing its opposition to the lay-offs and criticizing the company’s safety and environmental records, non-compliance with federal regulations, and treatment of its employees. The Chagrin Valley Times, a weekly newspaper whose coverage area includes Pepper Pike, reported on the protest in a news article. The following week, the paper ran an editorial and editorial cartoon commenting on the issues raised by the protest.

The statements and opinions of the protesters and the paper–expression protected by the First

Amendment to the United States Constitution and Article I, Section 11 of the Ohio

Constitution–were backed by an extensive public record comprised of government reports, judicial and administrative dockets, a congressional committee report, as well as news articles in reliable publications.

Briefly, that record showed that in 2007, six miners and three members of a rescue team perished in a collapse at the Crandall Canyon mine in Utah, owned by one of Murray Energy’s subsidiaries. Corporate minutes obtained by the Salt Lake Tribune as the result of a public records request–mightily resisted by Murray’s subsidiaries in California judicial proceedings–disclosed that

Murray was aware of a “bounce” (a technical term used to describe a type of partial mine collapse) at the Utah mine, a few months prior to the tragedy.

The Crandall Canyon collapse spawned a congressional investigation, a federal criminal indictment to which Murray’s subsidiary pleaded guilty, and hefty civil penalties for violations of mine safety regulations–the guilty plea and civil fines occurring just months before the protest.

2 Government reports and administrative and judicial proceedings also substantiated a number of safety and environmental problems at other Murray mines.

Appellants identify two examples of false statements about which they complain, in their

Memorandum in Support. They describe the first as falsely stating: “[A] subsidiary of Murray Energy was ‘fined $1.64 million, the U.S. Government’s highest penalty, for violations determined to have directly contributed to those nine deaths’ in an accident at the Crandall Canyon, Utah mine in 2007.”

Memorandum in Support at 4-5.

Here is what the undisputed facts show. A little less than one year after the tragedy at Crandall

Canyon, the Mine Safety and Health Administration issued a press release announcing it had issued citations fining Genwal Resources, Murray Energy’s subsidiary, $1,636,664.00 for violations directly contributing to the deaths of six miners there. MSHA News Release Number 08-10325 (July 24,

2008). CNN reported that it was the highest penalty for coal mine safety violations.“Feds blame mine operator for fatal collapse,” (July 24, 2008) CNN.com.

Genwal; Andalex Resources, another Murray Energy subsidiary; and MSHA negotiated a settlement of the citations. Murray’s subsidiaries agreed to pay $950,000.00 in civil penalties. U.S.

Department of Labor News Release Number 12-1964-NAT (September 27, 2012). The violations, to which the parties stipulated in the settlement agreement, were categorized as “flagrant,” and carried “the highest penalty assessment.” (Hardin at 31). In an official government news release, the

U.S. Solicitor of Labor stated that Murray Energy’s subsidiaries had “acknowledged responsibility for the failures that led to the tragedy of Crandall Canyon ...[and] resulted in the needless deaths of nine members of the mining community.”Id. The Associated Press reported the U.S. Solicitor of

Labor said it was “the third largest [fine] ever assessed for a U.S. coal mining operation.” “Crandall

Canyon Mine operate to pay nearly $1M in fines,” Associated Press (September 17, 2012). The facts,

3 therefore, substantiate the core of the editorial’s statement.

Appellants also point to a statement in the editorial, claiming it defamed them by stating that

“Murray ‘never officially reported’ a prior mining incident (a ‘bounce’) to regulators in violation of federal law.” Memorandum in Support at 5.

Again, here is what the undisputed facts show. Federal law requires a mine operator to report an “accident,” which includes “a coal or rock outburst that causes withdrawal of miners or which disrupts regular mining activity for more than one hour,” to MSHA within 15 minutes of its occurrence. 30 CFR §§ 50.10, 50.1(h)(9). A mine operator must do so to be compliant with the law; that is the “official report” of the event. Genwal, Murray Energy’s subsidiary, did not report the

March 2007 bounce, which disrupted mining activity for more than one hour at Crandall Canyon, within 15 minutes of its occurrence and, in fact, pleaded guilty to federal criminal charges for willfully failing to do so. United States v. Genwal Resources, Case 2:12-cr-00113, U.S. D. Ct., Utah,

Information (Doc. 1) (March 9, 2012); Statement of Defendant in Advance of Plea of Guilty (Doc.

2) (March 9, 2012); Judgment (Doc. 6) (March 21, 2012); Transcript of Proceedings (Doc. 8) (March

22, 2012). Genwal also pleaded guilty to willfully violating another mandatory health and safety standard by deviating from the approved roof control plan by mining in a prohibited area of the mine a few days before the collapse; it was sentenced to pay a fine of $500,000.00 for these two criminal violations. Id.

Appellants offer three reasons for accepting review of this case.

First. Appellants argue there is a need for guidance on false-light claims. Appellants write:

“Too often, as in the ruling below, lower courts treat false-light claims as an afterthought and give them little analysis, due to a basic lack of understanding of the tort.” Memorandum in Support of

Jurisdiction at 1. But that’s not true.

4 This Court made it clear there is considerable overlap between defamation and false-light privacy claims. Welling, 113 Ohio St. 3d 464, 2007-Ohio-2451, 866 N.E.2d 1051 at ¶¶ 37, 46, 58.

Each requires the examination of the same territory: Are the statements at issue false? Are they protected opinion? And were they made with actual malice? The well-developed body of law on these issues under defamation law applies with equal force to false-light claims. Welling instructs:

“False-light defendants enjoy protections at least as extensive as defamation defendants.” Id. at ¶ 58.

Courts, like the one below, reviewing tandem defamation and false-light tort claims do not treat false-light claims as “an afterthought,” nor do they fail to give them the analysis they’re due. But since defamation and false-light claims require evaluation of the same issues, the conclusions reached by a court on a party’s defamation claim will frequently resolve the merits of his false-light claim. See Murray v. HuffingtonPost.com, Inc., 21 F. Supp.3d 879, 888 (S.D. Ohio 2014) (“[T]he same core reasons that necessitate dismissal of the defamation claim inform disposition of the false light invasion of privacy claim, which warrants dismissal as well.”). The court below followed the footprint laid down in Welling.

Second. Appellants urge a reevaluation of the role of summary judgment in defamation cases and advocate an approach that does not “afford[] the First Amendment any weight.” Memorandum in Support at 2.

It is important to be clear about the court of appeals’ analysis here. Its opinion began with the familiar summary judgment standard: Appellees bore the burden of demonstrating that no issues of material fact existed for trial, and they were entitled to judgment as a matter of law. Opinion at ¶¶

5-6.1 It noted that the trial court’s grant of summary judgment was subject to de novo review.

1 The opinion of the court below is attached to Appellants’ Memorandum in Support of Jurisdiction. Rule 7.02 (D), Supreme Court Rules of Practice. All citations to it are designated by (continued...)

5 Opinion at ¶ 7.The court went on to state–and this is the sentence that Appellants find objectionable:

“Defamation and false light claims are particularly well-suited to summary judgment because ‘the determination of whether a public figure has come forward with clear and convincing evidence that the defendant was acting with actual malice’ is a question of law.” Id. That, however, is unquestionably a correct statement of law. Varanese v. Gall, 35 Ohio St. 3d 78, 81,518 N.E.2d 1177

(1988) quoting Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 119, 413 N.E.2d 1187 (1980);

Grau v. Kleinschmidt, 31 Ohio St. 3d 84, 90, 509 N.E.2d 399 (1987); Perez v. Scripps-Howard

Broad. Co., 35 Ohio St. 3d 215, 218, 520 N.E.2d 198 (1988); Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (finding the heightened evidentiary showing of actual malice by clear and convincing evidence applies at the summary judgment stage in defamation actions, as opposed to the normal“threshold summary judgment inquiry”).

Appellants ask this Court to revisit the evidentiary burden a defamation plaintiff faces at the summary judgment stage. They claim, without citation,2 that requiring a defamation plaintiff to come forward with clear and convincing evidence of actual malice at the summary judgment stage is no longer “the majority view”of federal courts. Memorandum in Support at 2. But Appellants’ argument runs smack into the Supreme Court’s definitive resolution of that issue in Anderson, (which they neither cite nor discuss) finding that precisely is the standard that must be met to survive summary judgment in a defamation action by a public figure and reversing the D.C. Circuit Court of Appeals’ application of a more dilute standard. Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563, 1570-

1(...continued) “Opinion” followed by the paragraph where the referenced material appears.

2 Later in their Memorandum, Appellants cite two circuit court cases and an Ohio court of appeals case that predate the United States Supreme Court decision in Anderson, in support of their argument. Memorandum in Support at 8-9.

6 1571(D.C. Cir. 1984). 3

Third. In the face of Scott v. News Herald, 25 Ohio St.3d 243, 496 N.E.2d 699 (1986); Vail v. The Plain Dealer Publishing Co., 72 Ohio St.3d 279, 649 N.E.2d 182 (1995); and Wampler v.

Higgins, 93 Ohio St.3d 111, 752 N.E.2d 962 (2001), decisions which have examined and provided direct and detailed guidance for separating statements of fact from statements of opinion, Appellants seek “clarification” from this Court on that issue. The court below followed the guideposts of that clear, direct, and detailed precedent in reaching its decision. Opinion at ¶¶ 17, 20-21, 24, 27, 32.

There is no need for clarification.

ARGUMENT IN SUPPORT OF APPELLEES’ POSITION ON PROPOSITIONS OF LAW IN MEMORANDUM IN SUPPORT OF JURISDICTION

Appellants’ first assignment of error in the court below asserted: “The Trial Court erred in

3 Appellants argue that Washington Post Co. v. Keogh, 365 F.2d 965, 968 (D.C. Cir. 1966), a case cited in this Court’s opinion in Dupler, “no longer remains good law” and that “federal courts have long rejected [it.]” Memorandum in Support at 2. That Keogh “no longer remains good law,” would be news to the D.C. Circuit Court. A little more than one year ago, that court wrote:

“Because the threat or actual imposition of pecuniary liability for alleged defamation may impair the unfettered exercise of ... First Amendment freedoms, the Constitution imposes stringent limitations upon the permissible scope of such liability.”•Greenbelt Coop. Publ’g Ass’n, Inc. v. Bresler, 398 U.S. 6, 12, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970). Various doctrinal protections preserve “the breathing space which freedoms of expression require in order to survive.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (quotation marks, alteration, and citation omitted). Indeed, this court has observed that summary proceedings are essential in the First Amendment area because if a suit entails “long and expensive litigation,”then the protective purpose of the First Amendment is thwarted even if the defendant ultimately prevails. Wash. Post Co. v. Keogh, 365 F.2d 965, 968 (D.C.Cir.1966).

Farah v. Esquire Magazine, 736 F.3d 528, 534 (D.C. Cir. 2013) (emphasis added).

7 granting summary judgment in favor of Appellees on Appellants’ claims for defamation.” Brief of

Appellants, 8th Dist No. CA 14 101394 at 1. The court of appeals, therefore, began its review there.

It carefully evaluated the statements in Appellees’ news article, editorial, and editorial cartoon against the record to determine whether they were materially false, whether they were protected opinion under the First Amendment and Article I, Section 11 of the Ohio Constitution, or whether they were made with actual malice. Opinion at ¶¶ 8-35 .

It concluded that none of the statements were actionable. Some, it found, were protected opinion. Opinion at ¶¶ 12, 17, 21, 23, 27, 32. Those that were not, the court found, were not materially false and were not published with actual malice. Opinion at ¶¶ 14, 16, 26,, 28, 29.

It was for those same reasons the court concluded Appellants’ false-light claim failed:

The comments made in this case were in regard to public actions of Murray and Murray Energy or its subsidiaries. Murray issued press releases, conducted press conferences before national news media, and publicly set forth a narrative that appellees disagreed with and commented on. Those comments were substantially true or protected opinion, and there is no showing they were made with reckless disregard as to the falsity of the statements or that they painted appellants in a false light rather than a light merely contrary to Murray’s public narrative.

Opinion at ¶ 39.

The court’s opinion follows the example of the United States District Court for the Southern

District of Ohio, which similarly disposed of Appellants’ false light claim brought in conjunction with a claim for defamation involving statements about Appellants, some of which were identical to those at issue here. Murray, 21 F.Supp.3d 879.

Appellees’ Counter Proposition of Law No. II: At the summary judgment stage, a public figure defamation plaintiff must demonstrate by clear and convincing evidence that the defendant acted with actual malice. Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 119, 413 N.E.2d 1187 (1980); Varanese v. Gall, 35 Ohio St. 3d 78, 81,518 N.E.2d 1177 (1988); Grau v. Kleinschmidt, 31 Ohio St. 3d 84, 90, 509 N.E.2d 399 (1987); Perez v. Scripps-Howard Broad. Co., 35 Ohio St. 3d 215, 218, 520 N.E.2d 198 (1988); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

8 Appellants claim that the court below failed to apply “familiar summary-judgment principles” and instead “allowed its policy preferences to color its analysis.” Memorandum in Support at 10.

But the court below did follow familiar summary judgment principles, and it did so carefully and objectively. It reviewed the undisputed facts and found judgment for Appellees was warranted as a matter of law.

Appellants conceded they were public figures. Brief of Appellants, 8th Dist No. CA 14 101394 at 19. Therefore, they had the burden of demonstrating that Appellees had published materially false statements of fact about them, and of establishing with convincing clarity, that Appellees had done so with actual malice. Varnese; Anderson; Bukky v. Painesville Tel. & Lake Geauga Printing Co.,

68 Ohio St. 2d 45, 47, 428 N.E.2d 405 (1981).

The court began by analyzing Appellants’ claims that the news article reporting on the protest staged by Appellee Patriots for Change at Appellants’ Pepper Pike offices contained defamatory statements. It found the news article simply reported the views and opinions of the protesters as well as Murray Energy’s response to the protest. The news article was, therefore, not a basis for liability.

Opinion at ¶¶ 12,17. See Am. Chem. Soc., 133 Ohio St. 3d 366, 978 N.E.2d 832, 2012-Ohio-4193 at ¶ 109 (noting business newspaper reporting on controversy between parties would not be liable

“for the ‘balanced report of both parties’ arguments and defenses’”). The court below found, however, that even if the statements could have been considered ones of fact, based on the evidentiary materials in the record, Appellants had not established they were materially false.

Opinion at ¶12.

Moreover, the court found there was “not even ordinary negligence substantiated in the record,” much less a showing of actual malice with clear and convincing clarity. Opinion at ¶¶ 16-17.

Appellants contest that conclusion, complaining that the court “glosse[d] over the fact” that Sali

9 McSherry, the reporter who wrote the article, “failed to give Plaintiffs a fair chance to comment or rebut [the protesters’] claims.” Memorandum in Support at 3.

But this is what the undisputed record disclosed. The day after the protest, McSherry called

Appellants’ Pepper Pike office to get comments from the lead Plaintiff, Robert E. Murray, about the protest. When she was unable to reach him there, she called Appellants’ corporate headquarters, eventually spoke with Appellants’ media director, and asked him for his comments on the protest.

McSherry testified that she gave Appellants’ media director “every opportunity” to comment on the protest and articulate Appellants’ position. (McSherry at 83-84). The media director told McSherry he would send her a statement via email. He sent her a press release stating Appellants’ view of the protest and the protesters, whom it described as “a self-described ‘militant’ unionist labor group of retirees who favor forced unionism, excessive regulation, socialized medicine, increased taxes, and the end of free market capitalism.” (Complaint, Ex. E). Nine of the sixteen paragraphs of McSherry’s article included information from Appellants’ statement. She reported both sides of the story accurately.

The court then turned to Appellees’ editorial. It concluded that under Vail v. Plain Dealer

Publishing Co., 72 Ohio St. 3d 279, 649 N.E. 2d 182 (1995), the statements in the editorial were the protected opinion of its author, David Lange. Opinion at ¶¶ 20-24, 27. It noted that while two of the statements were “more amenable to arguments that they are factual in nature” than the others, it concluded, after reviewing the sources on which Lange relied, Appellants had failed to show they were materially false. Opinion at ¶¶ 28-29.

As for actual malice, the court found none. Opinion at ¶¶ 26, 28, 30. The record established that Lange, in preparing his editorial, reviewed a great deal of information. Among the many sources he reviewed were: government reports of the Crandall Canyon mine disaster, a Salt Lake Tribune

10 article reporting on its quest to discover facts about that disaster through open-records requests and the ensuing “bombshell” it unearthed about Appellants’ prior knowledge about problems at the mine, a statement issued by the Mine Safety and Health Administration announcing the levying of a $1.85 million fine against one of Appellants’ companies, and two newspaper accounts reporting on

Appellants’ settlement of penalties with the U.S. Department of Labor in connection with the mine disaster.

In addition, the record contained a wealth of evidence substantiating the viewpoints expressed by Lange in his commentary. See pp. 2-4, above.

The court of appeals concluded: “On the whole, the piece is an opinion with few factual statements, and any error therein was not published with actual malice.” Opinion at ¶ 30.

Appellants contend the court below ignored facts demonstrating actual malice. They claim “in a prepublication internal email” Lange sent to McSherry, his colleague covering the protest, he

“expressed serious doubt about his commentary.” Memorandum in Support at 4. The entirety of that email reads:

Hi Sali: I hope your holidays are going well. A Happy New Year to Mr. Murray is attached. Please give it a read. I really like your story. — Dave

(Plaintiffs’ Ex. 55).

Lange expressed no doubt about his commentary–much less “serious doubt.” He did make a tongue-in-cheek reference to his opinion piece, which was critical of Murray and his companies, as a “Happy New Year to Mr. Murray.” That does not in any way demonstrate that Lange wrote his editorial out of “a desire to ‘stick it’ to the Plaintiffs, truth be damned.” Memorandum in Support at 11.4 To the contrary, the evidence established that Lange took pains to carefully research the facts

4 “Actual malice may not be inferred from evidence of personal spite, ill will or deliberate (continued...)

11 on which he based his opinion piece, and sought further verification by sending his piece to

McSherry, the reporter who covered the protest, to review it.

Appellants contend that Lange’s research was wanting, however, because he consulted

“information known to be outdated,” and was thereby reckless. Memorandum in Support at 11.

Lange reviewed a variety of sources in researching his commentary, some of which were contemporaneous accounts of events. Reviewing primary sources recording events at the time they happen is far from “reckless.” Rather, it is the mark of a good journalist. See Society of Professional

Journalists’ Code of Ethics (“Use original sources whenever possible.”) http://www.spj.org/ethicscode.asp (accessed February 23, 2015).

Finally, the court of appeals evaluated Appellants’ claim that an editorial cartoon criticizing

Appellants’ laying off more than 150 workers the day after President Barack Obama was re-elected was defamatory. It determined the cartoon was “clearly a protected expression of ideas in the long tradition of satirical cartoons” recognized in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108

S.Ct. 876, 99 L.Ed.2d 41 (1988). Opinion at ¶ 32. Its message, the court found, did not show

“reckless indifference for truth,” as Appellants claimed, but rather voiced a “reasonable conclusion drawn from [Appellant] Murray’s own actions and statements.” Opinion at ¶¶ 33-34. The court noted that the United States District Court for the Southern District of Ohio had reached that same conclusion and dismissed a complaint filed by Appellants against another news organization voicing similar criticism of the lay-offs. Opinion at ¶ 33; Murray, 21 F.Supp.3d at 885-888.

Appellants insist the court’s analysis was flawed by its reliance on Dupler, which they claim stands for the mistaken proposition that defamation actions are not subject to “normal summary

4(...continued) intention to injure, as the person’s motives for publishing are irrelevant.” Varanese, 35 Ohio St. 3d 78, 80, 518 N.E.2d 1177.

12 judgment procedures.” Memorandum in Support at 2, 8.

As support for the interpretation they now give Dupler, Appellants point to a passage in that decision observing: “Summary procedures are especially appropriate in the First Amendment area.”

Dupler, 64 Ohio St. 2d 116, 120.

The syllabus in Dupler provides the appropriate context for that observation:

1. In ruling upon defendant’s motion for summary judgment in a libel action brought by a public official, the court shall consider the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff to determine whether a reasonable jury could find actual malice with convincing clarity.

2. In considering defendant’s motion for summary judgment in a libel action brought by a public official, if the court finds that there is no genuine issue of material fact from which a reasonable jury could find actual malice with convincing clarity it must enter judgment for defendant.

Dupler, 64 Ohio St. 2d 116, at syllabus, 413 N.E.2d 1187.

At the summary judgment stage in a defamation action, protection against the potential chilling effect on speech is secured by requiring a public figure plaintiff to establish actual malice with clear and convincing clarity. Dupler, syllabus. It is that requirement–well-entrenched in this Court’s precedent and that of the United States Supreme Court, Varnese, 35 Ohio St.3d 78, 80, 518 N.E.2d

1177, accord Jackson v. City of Columbus, 117 Ohio St. 3d 328, 2008-Ohio-1041, 883 N.E.2d 1060 at ¶ 11, at ¶ 20 (dissent); Anderson, 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)–that distinguishes summary judgment in a defamation action from other types of cases and makes

“summary judgment particularly appropriate in the First Amendment area.” And it is that particular hurdle, among others, that Appellants were unable to clear.

Appellants, nonetheless, claim that Dupler led the court below to give inordinate “weight to the First Amendment” such that it “took the unwarranted step of asking the General Assembly to enact an ‘anti-SLAPP’ statute” and thereby, “betrayed a bias that permeated its analysis.”

13 Memorandum in Support at 2. After analyzing the undisputed evidence in the record which substantiated the opinions and statements at issue, the court below wrote: “This case illustrates the need for Ohio to join the majority of states in this country that have enacted statutes that provide for quick relief from suits aimed at chilling protected speech.” Opinion at ¶ 40.

On these facts,5 the court identified a need to be addressed by the General Assembly. See C.

Barylak, Reducing Uncertainty in Anti-Slapp Protection, 71 Ohio St. L.J. 845 (2010). That was not an “unusual step.” This Court and others have done the same from time to time. See e.g. State v.

Radcliff, 2015-Ohio-235 at ¶ 36; State v. Coleman, 117 Ohio App. 3d 726, 729, 691 N.E.2d 369, 370

(1997) (Bettman, J., concurring). The court’s expression of its opinion that Ohio should enact anti-

SLAPP legislation, as the majority of states have, was wholly appropriate and fully merited. See http://www.anti-slapp.org/your-states-free-speech-protection/(accessed February 23, 2015).

To draw the distinction between speech that expresses opinion and speech that states facts, this

Court adopted the approach of the Court of Appeals for the D.C. Circuit, sitting en banc, in Ollman

5 Appellants have a history of filing defamation and false-light actions against those who criticize them, a fact which Appellees pointed out to the court below. See Brief of Appellees, 8th Dist No. CA 14 101394 at 10 n.7. Murray v. Knight-Ridder, Inc., et al., Belmont County, Ohio, Case No. 01-cv-00038; Murray Energy v. The Daily Gazette, S.D. Ohio No. 2:12-cv-00767; Murray v. The Huffington Post.com, Inc., S.D. Ohio 2:13-cv-01066; Murray v. Lamar Advertising, N.D. Ohio No. 1:01-cv-02317; Murray v. Tarley, C2-01-693, 2002 WL 484537 (S.D. Ohio, Feb. 21, 2002); Murray v. Ciocia, Cuyahoga County, Ohio, Case No. CV-13-801057; Murray v. International Mine Workers, Case No. 1:01-cv-2061, U.S. Dist. Ct., N.D. Ohio; Robert E. Murray, et al. v. Public Citizen, Inc., et al., S.D. Ohio, 2:14-cv-02561. See also Robert E. Murray, et al. v. William Moyers, et al., S.D. Ohio No. 2:14-cv-02334.

14 v. Evans, 750 F.2d 970 (D.C. Cir.1984). That court described the challenge:

Because of the richness and diversity of language, as evidenced by the capacity of the same words to convey different meanings in different contexts, it is quite impossible to lay down a bright-line or mechanical distinction.

Id. at 978.

In Scott, this Court identified four factors derived from Ollman that guide the analysis:

First is the specific language used, second is whether the statement is verifiable, third is the general context of the statement and fourth is the broader context in which the statement appeared.

Scott, 25 Ohio St. 3d 243, 250, 496 N.E.2d 699.

Since Scott was decided, this Court has twice reaffirmed its four-factor analysis. Vail v. Plain

Dealer Publishing Co., 72 Ohio St.3d 279 at syllabus, 649 N.E.2d 182; Wampler v. Higgins, 93 Ohio

St. 111, 752 N.E.2d 962; see also McKimm, 89 Ohio St.3d 139, 144-145, 729 N.E.2d 364 (applying four factors).

The court below followed that analysis. Opinion at ¶ 20 quoting Vail. It examined the language of the statements, Opinion at ¶¶ 17, 32, whether they were verifiable, Opinion at ¶¶ 17, 23, 27, 32, their general context, Opinion at ¶¶ 21, 23, 25, 32, and the broader context in which they appeared.

Opinion at ¶¶ 27, 32. There is no reason to revisit the issue.

CONCLUSION

This Court should decline review of this appeal.

/s/ J. Michael Murray J. MICHAEL MURRAY (0019642) [email protected] LORRAINE R. BAUMGARDNER (0019642) [email protected] BERKMAN, GORDON, MURRAY & DeVAN 55 Public Square, Suite 2200 Cleveland, Ohio 44113-1949 (216) 781-5245 / (216) 781-8207 (Fax) Attorneys for Appellees The Chagrin Valley Publishing Company; H. Kenneth Douthit, III; Todd Nighswonger; David C. Lange; Douthit Communications, Inc.; Sali A. McSherry; and Ron Hill

15 CERTIFICATE OF SERVICE

The foregoing Memorandum in Response to Appellants’ Memorandum In Support of

Jurisdiction of Appellees was filed electronically on February 23, 2015. Notice of this filing will be sent via regular U.S. mail, with a courtesy copy by electronic mail this 23rd day of February, 2015 upon the following:

Mark S. Stemm Michael O. McKown [email protected] [email protected] L. Bradfield Hughes Gary M. Broadbent [email protected] [email protected] PORTER WRIGHT MORRIS 46226 National Road & ARTHUR LLP St. Clairsville, Ohio 43950 41 South High Street, Suite 3200 Columbus, Ohio 43215 Attorneys for Plaintiffs-Appellants Robert E. Murray, Murray Energy Corporation, J. Philip Calabrese American Energy Corporation and [email protected] The Ohio Valley Coal Company Tracy S. Francis [email protected] PORTER WRIGHT MORRIS & ARTHUR Samuel M. Pipino LLP [email protected] 950 Main Avenue, Suite 500 Molly Gwin Cleveland, Ohio 44113 [email protected] WILES, BOYLE, BURKHOLDER Kevin Anderson, pro hac vice & BRINGARDNER CO., L.P.A. [email protected] 300 Spruce Street, Floor One FABIAN & CLENDENIN, PC Columbus, Ohio 43215 215 South State Street, Suite 1200 Salt Lake City, Utah 84111 Attorneys for Defendants-Appellees Patriots for Change

/s/ J. Michael Murray J. MICHAEL MURRAY (0019642) [email protected] LORRAINE R. BAUMGARDNER (0019642) [email protected] BERKMAN, GORDON, MURRAY & DeVAN Attorneys for Appellees The Chagrin Valley Publishing Company; H. Kenneth Douthit, III; Todd Nighswonger; David C. Lange; Douthit Communications, Inc.; Sali A. McSherry; and Ron Hill