Larry Flynt Might Help John Oliver Win Lawsuit Over Foul-Mouthed Squirrel Gag

Flynt won a key Supreme Court ruling protecting offensive jokes

Last Updated: June 27, 2017 @ 11:16 AM

John Oliver and Larry Flynt have at least one thing in common: Both have been sued for using over-the-top jokes to hurt the feelings of powerful men.

Oliver was sued last week by Murray Energy CEO Robert E. Murray for what Murray called “vile and baseless” “attempts at humor.” Murray alleges that the “Last Week Tonight” host caused him “severe emotional distress” by enlisting a staffer to dress as a giant squirrel on his set and say “Eat s—, Bob” and “Kiss my ass, Bob.”

HBO lawyers will likely rely on Flynt’s court victory  to win a quick dismissal of the Murray lawsuit, which he filed in West Virginia.

Flynt’s legal fights led to a powerful court rule protecting parody and satire: The Hustler publisher won dismissal of an emotional distress lawsuit filed by Rev. Jerry Falwell in a landmark 1988 Supreme Court decision, Hustler v. Falwell.

In that case,  the court declared that the First Amendment protects jokes, even when the humorous jabs are offensive, mean-spirited and intended to cause serious emotional harm to the butt of the joke.

The Supreme Court said in Flynt’s case that the First Amendment protects “vehement, caustic, and sometimes unpleasantly sharp attacks” on public figures, said Lincoln Bandlow, a Los Angeles media law lawyer at Fox Rothschild.

“In my mind, this is not a complaint, this is a press release,” he told TheWrap, referring to Murray’s lawsuit.

Lawyers for Murray did not immediately respond to TheWrap’s request for comment.

In addition to suing Oliver for his jokes, Murray also accused Oliver of committing defamation when he ridiculed Murray’s contention that a fatal collapse at one of his mines was caused by a earthquake. Oliver said Murray ignored a government report concluding the collapse was caused by collapsing pillars and poor design, not a quake.

Murray made three claims in his lawsuit against Oliver and HBO: alleged intentional infliction of emotional distress, defamation, and placing Murray in a “false light.”

First Amendment attorney Floyd Abrams told LawNewz, a legal news website owned by his son Dan Abrams, that Oliver’s segment is constitutionally protected because Oliver commented on President Trump’s public support of the coal industry, which is political speech.

“Political commentary, whether phrased humorously or not, receives sweeping protection under the First Amendment,” Abrams said.

The fact that Oliver’s jibes at the coal executive were obviously hyperbole and absurd means that the audience understood the gags were jokes and not statements of defamatory facts, Abrams added.

Bandlow said that Murray’s libel claim also is likely to be dismissed because Oliver was expressing his opinion based on government reports, which provides protection against libel and false-light claims.

Murray’s claim of intentional infliction of emotional distress will likely fail because Oliver’s commentary is “far, far, far from the kind of outrageous conduct that would justify” such a claim, Bandlow said.

HBO’s issued the following statement in reaction to the lawsuit: “While we have not seen the complaint, we have confidence in the staff of ‘Last Week Tonight’ and do not believe anything in the show this week violated Mr. Murray’s or Murray Energy’s rights.”

Flynt was sued for a parody advertisement in a November 1983 issue of Hustler that portrayed fundamentalist preacher Falwell talking about a drunken incestuous relationship with his mother in an outhouse.

The Supreme Court dismissed the case, saying the parody was “offensive to [Falwell], and doubtless gross and repugnant in the eyes of most,” but still Constitutionally protected as political speech and not understood to be factual.