“This sweeping lawsuit, in which some twenty-seven plaintiffs have asserted claims of defamation against more than ninety different defendants, based on hundreds of articles and statements published by numerous news outlets and others organizations, including The Salt Lake Tribune (“The Tribune”), the Deseret Morning News (“Morning News”) and The Militant, poses a dangerous and significant risk of chilling the media’s constitutionally-protected coverage of this important public controversy.”

This is how the Memorandum in Support of Motion to Dismiss a lawsuit against the Militant and the Socialist Workers Party by C.W. Mining and the International Association of United Workers Union (IAUWU) opens.

Salt Lake City attorneys Randy Dryer and Michael Petrogeorge are representing the Militant and the SWP in this lawsuit. They filed the latest brief on behalf of these defendants.

“Plaintiffs should not be allowed to use litigation and the threat of protracted discovery, to chill First Amendment rights in this way, and their claims of defamation should therefore be dismissed, with prejudice,” continues the memorandum, which was filed April 28 in Federal District Court in Salt Lake City, Utah.

“The time and expense associated with protracted litigation is a particular concern for small, independent, weekly newspapers with limited financial resources like The Militant (which, as stated on its masthead for decades, is ‘A socialist newsweekly published in the interests of working people’),” says a footnote in the brief. “The potential for frivolous defamation suits to chill First Amendment rights is even greater for these media outlets.”

C.W Mining and the IAUWU originally filed their lawsuit in September 2004. Individual directors of C.W. Mining and officers of the company-run union are also plaintiffs in the case. The suit was amended and resubmitted to the court on Dec. 9, 2004. The only charge in the brief against the SWP is that it “owns and controls” the Militant. The brief submitted by the Militant and SWP explains this charge is false. The Militant itself is charged with defamation. C.W. Mining says in papers it filed with the court it expects to use discovery to further “prove” its allegations against the Militant. Discovery is often used in civil suits to demand private information from those being sued in order to drain time and resources from opponents.

Also targeted as defendants in this lawsuit are 16 workers who have been involved in the now 19-month-long battle to be represented by the United Mine Workers of America (UMWA) and to be reinstated to their jobs at the Co-op Mine; the UMWA and that union’s international officers; other unions and labor organizations—including the Utah AFL-CIO and its president Ed Mayne—and both of Utah’s main dailies, the Salt Lake Tribune and the Deseret Morning News. All the defendants have filed motions to dismiss the case. The company and the IAUWU subsequently filed court papers opposing those motions to dismiss.

The company fired nearly every supporter of the UMWA on the eve of a union certification election at the mine last December. The National Labor Relations Board (NLRB) upheld the UMWA’s claim that relatives of the mine bosses and company shareholders should be ruled ineligible to vote in that election. Among those deemed ineligible to vote were officers of the IAUWU, which the workers involved in this struggle have described since the beginning as a company union. An NLRB ruling is pending on the votes of the fired workers and the result of the election.

The memorandum in support of the motion to dismiss submitted by Dryer and Petrogeorge cites five reasons why the judge should throw out C.W. Mining’s defamation claims: “(i) The Militant’s publications are protected by Utah’s public interest privilege; (ii) The Militant’s publications when taken in context (as required), do not convey any defamatory meaning; (iii) The Militant’s publications constitute, in large part, constitutionally protected statements of opinion; (iv) many of The Militant’s publications are fair and true reports of the official proceedings of the NLRB; and/or (v) with few exceptions, the Militant’s statements are not ‘of and concerning’ individual plaintiffs.”

The brief incorporates many of the arguments on these points made by the Salt Lake Tribune and Deseret Morning News in their memorandum supporting their motions to dismiss the case.  
 
A public, not a private, controversy
Mark Hansen and Carl Kingston, representing the company and the IAUWU, submitted papers to the court claiming the dispute at the mine is not a “public controversy.” Because of that, they alleged, the two Salt Lake City dailies and the Militant are not entitled to the protection afforded journalists under Utah’s public interest reporting laws. Hansen and Kingston cite a case where the courts ruled that a single instance of animal rights abuse did not elevate the person involved into a public figure.

“As discussed more fully in the Tribune/Morning News Reply Memorandum, the labor dispute at the Co-Op Mine raises important issues of worker health and safety, and possible violations of federal labor laws and mine safety regulations, and have a significant impact on the surrounding community and the labor movement as a whole,” the Militant and SWP brief states. “The allegedly unfair labor practices span years, and have affected a significant number of mine workers and their families. These issues indisputably affect public health and safety, and have far greater social implications than a single incident of alleged animal cruelty.”  
 
No valid defamation claims
In the amended complaint C.W. Mining attorneys filed last year, 24 of the 76 pages cite articles from the Militant that the mine owners and the IAUWU claim convey defamatory meaning. In their memorandum in opposition to the Militant and SWP’s motion to dismiss the case, these attorneys claim that Father Donald E. Hope of the Catholic Church in the Price area, Salt Lake City Catholic diocese Bishop George Niederauer, and others, who expressed public opinions in support of the workers at the Co-Op mine, formed their views in this matter from articles and editorials in the Militant.

“Plaintiffs do not plead (and cannot establish) any actual link between the statements published in The Militant and the statements made by these unrelated individuals, however, and in the absence of such a link, their argument is nonsensical,” say Dryer and Petrogeorge in the latest brief.

This point is amplified in an accompanying footnote. “It is important to note that The Militant, a socialist weekly newspaper, has limited circulation and a relatively small number of subscribers,” the note says. “Many of the statements published in The Militant have also been published in large circulation daily publications like The Tribune and Morning News. There is absolutely no reason to believe Father Hope, Bishop Niederauer, or Mr. Logan, based any of their alleged statements on The Militant’s publications, and there is no allegation in the Amended Complaint to support this inference. Indeed, it is much more likely that these gentlemen formed their opinions based on their own personal contact and discussion with mine workers, or the accounts of the labor dispute set forth in major dailies.”

The Militant and SWP brief explains that many of the statements printed in the paper are either editorials or news analysis articles that are constitutionally protected as such.

Other articles submitted by volunteer correspondents are likewise subject to the protections afforded under the First Amendment—they must be read in the context in which they were written, and cannot be construed to be slanderous.

“Plaintiffs take particular issue with statements in The Militant reporting on claims by the mine workers themselves that the Co-Op Mine has, among other things, ‘locked’ the workers out of the mine, ‘harassed,’ ‘threatened,’ ‘intimidated’ or ‘abused’ the workers, tried to ‘disrupt’ meetings, and otherwise impeded the ability of the workers to seek true union representation, imposed ‘unfair’ and ‘unsafe’ working conditions, supplied workers with ‘defective’ equipment, ‘jack(ed) up its profits’ by abusing the workers, and tried to ‘stack’ the union election,” the latest legal brief by the Militant says.

“Readers of The Militant, no less than readers of The Tribune and The Morning News, would recognize these statements for what they are: polemics and other expressions of the opinions or strongly held views of the speaker. Such statements are constitutionally protected and cannot support Plaintiffs’ defamation claims.”  
 
Selective editing of quotations
Dryer and Petrogeorge point out how C.W. Mining attorneys have used selective editing to try to prove their defamations claims in quoting an editorial in the Dec. 1, 2003, Militant.

The company attorneys told the court, “The Militant said, as a statement of fact, that one of CWM’s directors was convicted for savagely beating his daughter. This is a good example of the defamatory nature of the Militant’s publications. CWM’s directors are Early Stoddard, Dorothy Sanders and Charles Reynolds, none of whom have been convicted of any crime, let alone the one The Militant accused them of.”

The editorial in question actually stated in part, “For example, one of the directors of the Co-Op Mine, John Kingston, was convicted for savagely beating his daughter who had filed a forced polygamous marriage to her uncle David Kingston, who spent four years in jail for sexual abuse of the 16-year old.”

“This illustrates the lengths to which Plaintiffs will go to distort the context of The Militant’s actual statements in order to avoid the motion to dismiss and continue their frivolous lawsuit,” Dryer and Petrogeorge explain to the court. “Contrary to the misleading and distorted picture painted by Plaintiffs, this editorial does not in any way identify Mr. Stoddard, Ms. Sanders or Mr. Reynolds (or any other named Plaintiffs.)”

The brief further points out that John Kingston is not a plaintiff in this lawsuit. It also explains that a Salt Lake Tribune article in 1999 reported that he was a director of the Co-Op Mine at the time he was convicted in state court for carrying out this attack on the young woman.

Dryer and Petrogeorge rebut the company’s claim that articles in the Militant referring to “bosses,” “managers,” and “officers of the IAUWU” are defamations of individual plaintiffs in this case.

“Contrary to Plaintiff’s assertion,” the brief says, “the statements made in The Militant about the Co-Op Mine ‘bosses’ and ‘managers’ and the ‘officers’ of the IAUWU refer only generally to the groups, and do not target or refer to any particular person. No reasonable reader, taking these statements in context, would reasonably attribute these statements to any of the individually named plaintiffs.” In the few instances where an individual company employee or officer of the union is mentioned in an article, the coverage involves the opinion or statements made by a worker and therefore is constitutionally protected reporting.

The memorandum also points out that the mine bosses have failed to make a case for their charge that the Militant conspired with others to hurt the company owners. C.W. Mining’s only arguments about a conspiracy revolve around defamation claims, and since those have no standing the conspiracy claims should also be thrown out, Dryer and Petrogeorge argue.

“Plaintiffs do not allege how any of the named defendants actually combined, what the object was they allegedly intended to accomplish, when the supposed meeting of the minds occurred (or who was even involved), or otherwise provide any of the factual details necessary to meet even the most liberal pleading requirements,” the brief says.

In addition to requesting that the case be thrown out with prejudice, attorneys for the Militant and SWP are asking the court to grant defendants attorneys fees.

Presiding Judge Dee Benson has not yet scheduled a hearing on the motions to dismiss the lawsuit that all the defendants have filed.
 
 
Related articles:
Chicago forum promotes Militant Fighting Fund
Free-speech fight endorsed in Utah, N.Y.  
 
 
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