That is how attorneys Randy Dryer and Michael Petrogeorge concluded the motion they filed here August 16 for dismissal of a lawsuit against the Militant and numerous other defendants by C.W. Mining and the company-associated IAUWU.

The lawsuit charges the Militant with defaming the company in its almost weekly coverage of the now 23-month-long union-organizing battle at the Co-Op mine near Huntington, Utah.

Also charged with defamation are two daily papers, the Salt Lake Tribune and Deseret Morning News, which filed a joint motion August 15 to dismiss what their brief calls the company’s “scattershot, sweeping, and retaliatory claims.” (The legal briefs filed by all three papers are available at www.themilitant.com)  
 
Didn’t comply with judge’s order
The C.W. Mining lawsuit was initially filed in September 2004 and amended in December of that year. Sixteen individual Co-Op miners, the United Mine Workers of America (UMWA), and many of their supporters in the labor movement are being sued. Defendants targeted by the coal bosses also include the Militant, and two Salt Lake City dailies. These papers have quoted what workers had to say about work and safety conditions and the fight for a union. The Militant has regularly featured the miners’ struggle to be represented by the UMWA and to be reinstated to their jobs.

In June 2005 a hearing was held in Federal District Court in Salt Lake City on motions to dismiss filed by the two Salt Lake City papers and by the Militant. Judge Dee Benson ordered the plaintiffs to rewrite their lawsuit, which he said was “insufficiently precise to stand as a complaint…from which litigation can proceed.” Giving the coal company’s lawyers 30 days to submit a new complaint, the judge cautioned them to avoid the “scatter gun” approach of their earlier filing. He told the lawyers to “parse [their claims] down into a manageable lawsuit.”

In the rewritten complaint, in addition to again claiming all defendants have defamed the company, C.W. Mining charges the UMWA and Co-Op miners with unfair labor practices. It also accuses individual miners named as defendants of immigration “fraud.” Allegations against various defendants for intentional interference with economic activity, negligence, and civil conspiracy have been revised to include the Militant, which is also now accused of invasion of privacy.

In their reply, attorneys for the Militant explain that the plaintiffs “failed entirely to comply with the June 14 Order, submitting a Second Amended Complaint that is every bit as ‘vague’ and imprecise as their First Amended Complaint.”

The response notes that the plaintiffs’ complaint—70 pages and 224 paragraphs long—alleges “entirely new causes of action” and adds “approximately eight new articles/editorials to its already extensive list of alleged defamations by The Militant.” The complaint “(1) attempts to complicate, rather than simplify this lawsuit, and (2) continues the same ‘scatter gun’ approach previously rejected by this Court.” In all, the new company lawsuit cites 75 articles from the Militant.

The Militant’s reply notes that company and IAUWU attorneys Carl Kingston and Mark Hansen made “an apparent attempt” at complying with the judge’s order in relation to the Salt Lake Tribune and Deseret Morning News by considerably reducing the number of alleged defamations against those papers and attempting to say which statements contained alleged defamations. “There is no legitimate excuse” for the coal company’s lawyers not to have similarly parsed down its claims and allegations against the Militant, the reply says.

“All the Plaintiffs have really done is reorganize their allegations by coal miners, UMWA representatives, other union supporters, newspapers, correspondents, or other alleged speakers, rather than by date.”

The Militant’s attorneys cite a lengthy quote from a July 20, 2004, Militant news article signed by Anne Carroll and Guillermo Esquivel, which is again copied word for word into the new lawsuit. “There are at least thirteen (13) discrete factual statements contained in the paragraph quoted,” the reply points out, “yet Plaintiffs make no effort to identify which of these numerous ‘facts’ it contends is false, or why the false ‘fact’ is defamatory or exposes Plaintiffs to public hatred and ridicule.”  
 
Constitutionally protected opinion
As they did in their answer to the first amended complaint, the Militant’s attorneys note that articles in the Militant about the labor battle at the Co-Op mine are not defamatory according to the law.

In the context of a heated labor dispute, the brief explains, “each of the statements published by The Militant regarding the Co-Op Mine dispute either: (1) do not convey any defamatory meaning; (2) constitute statements of opinion which are not capable of being objectively verified as true or false; (3) constitute reports of official government proceedings privileged under Utah law; and/or (4) with few exceptions, are not ‘of and concerning’ the individually named plaintiffs.”

In the rewritten lawsuit, the bosses’ attorneys try to bolster the claim that Militant articles are defamatory by saying the paper “is an avowedly…socialist publication” well known for publishing prolabor articles “from a socialist perspective.” The response by the Militant’s attorneys states that the paper is “a news weekly distributed to those who have a particular interest in labor issues and issues of workers’ rights, and who expect that its articles/editorials will be written with a pro-labor slant. The readers of The Militant are particularly used to the type of polemicizing commonly spoken and expected in the context of long, heated labor disputes, and would understand the statements published by The Militant as a continuation of the heated debate surrounding the on-going labor dispute at the Co-Op mine.”

The Militant’s brief explains that statements of opinion are protected under the law. This includes not only editorials but news articles, which “convey the statements and opinions of those workers who have been involved in the labor dispute at the Co-Op Mine, and depict their individual beliefs and subjective observations about the treatment they have personally received at the mine.”

C.W. Mining and IAUWU attorneys repeatedly used selective quotation, leaving off the beginning or end of sentences attributing a statement to a Co-Op miner or one of their supporters. In this way the company hoped to “prove” that reports in the Militant about poor working conditions were knowingly false statements by the newspaper itself, rather than legitimate reporting on views and experiences of workers fighting for a union at the mine.

During the June 14 hearing, the judge warned C.W. Mining’s attorneys that “the burden is on the Plaintiffs to focus [the lawsuit] for the benefit of the people being sued, whose lives are disrupted by a lawsuit.” In their reply to the rewritten lawsuit, the Militant’s lawyers say, “The Plaintiffs have now had two bites at the apple and remain unable to plead any actionable claims against The Militant.”  
 
Salt Lake papers respond
In their motion to dismiss the lawsuit, Michael Patrick O’Brien and Jeffrey Hunt, attorneys for the Salt Lake Tribune and Deseret Morning News, tell the court that the company’s amended complaint “still includes statements that are attributed to other parties, fails to identify which of the laundry-list of statements in each paragraph is false…. Plaintiffs have, in short, done nothing to overcome the substantive legal defects in their claims or fix the substantial confusion generated by their last Complaint.”

The memorandum supporting the motion to dismiss goes through the plaintiffs’ allegations one by one, pointing out why they cannot sustain a defamation claim. C.W. Mining’s complaint, for example, says Morning News writer Marjorie Cortez “republished a false statement earlier reported in the Arizona Republic, that ‘two Kingston Clan sons…were expected to work in the family mine as young as 12 years old.’” In their answer, attorneys for the dailies point out that the plaintiffs, among other things, “selectively edit this statement to eliminate specific quotes from and attribution of the statements to Louis Brown, one of the children who worked in the mine.”

“This is Plaintiffs’ third attempt to properly plead defamation claims against the Tribune and Morning News,” the attorneys for the papers emphasize.

“The range of named and unnamed defendants includes everyone who has ever said anything in support of the miners or critical of the Kingston family,” the dailies say. “Plaintiffs’ transparently harassing claims and their inability to plead them with any clarity has already wasted this Court’s time once and has caused the Tribune and Morning News to incur substantial expense in defending themselves. Unless Plaintiffs are held to account for this needless expense, the real purpose of this lawsuit—to chill legitimate news coverage and commentary on the Kingstons and their mine—will be fulfilled.”

The judge will set a new hearing on the case after receiving replies by the plaintiffs to the briefs by the Militant and Salt Lake City dailies and counter-replies by the three newspapers.

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