(Opinion column) — I want to make this clear from the beginning: In no way does the fact I consider singer-songwriter John Prine one of the greatest musical artists to ever grace this planet influence what you are about to read.
Well, maybe a little.
Prine wrote a classic protest song in 1971 called Paradise that is now improbably at the center of a legal controversy in Wyoming. You may not recognize the title, but it was a hit when John Denver covered the song, so you’ve likely heard the lyrics; And daddy won’t you take me back to Muhlenberg County, down by the Green River where Paradise lay? Well, I’m sorry my son, but you’re too late in asking, Mister Peabody’s coal train has hauled it away.
Naturally, Peabody Energy Corp. hates the song. The coal company has been ticked off at Prine for the past 44 years, and has always contended the songwriter didn’t have his facts straight in this tale about how strip mining ruined his parents’ hometown, Paradise, Ky.
— Tierra Curry (@TierraMussel) July 15, 2015
Despite the long disdain Peabody has for the song, it was still probably a surprise to officials who saw Prine’s lyrics quoted at the beginning of a First Amendment lawsuit against the company that was filed in Wyoming.
Peabody operates mining activities in Wyoming’s Powder River Basin. When the company planned to have a shareholders meeting at its headquarters in St. Louis, Mo., two years ago, officials were reportedly concerned a lot of protesters would show up and generate negative news stories. So the company moved the meeting to the community college in Gillette. The officials correctly predicted few protesters would show up at a location so remote, but even if they did, Peabody planned to keep them at bay in a designated, fenced area far from the meeting.
Two people from Boulder, Colo., traveled to Gillette to represent the United Mine Workers of America, which has criticized Peabody for allegedly abandoning its pension and retiree health benefit obligations to former Peabody affiliate, Patriot Energy.
The couple carried a banner that proclaimed, “Peabody Abandons Miners.” Thomas Asprey and Leslie Glustrom stayed in the protest pen, except when some miners asked them to unfurl their sign in front of the building where shareholders were meeting so they could take a photo.
Following the orders of Peabody, which was running the show, campus security swooped in and allegedly detained the couple until police could arrest them. They were hauled off to jail.
Asprey and Glustrom sued Peabody and the Northern Wyoming Community College District over the incident. The couple claimed their actions were protected by the right of free speech under the First Amendment because all “matters of public concern” can be legally protested.
Peabody’s treatment of its employees and the environment are unquestionably of concern to the public. Peabody, likely counting on jurists in Wyoming to be friendly to Big Coal, filed a 17-page brief supporting its four-page motion to strike the “Paradise” lyrics from the complaint.
Darold Killmer, a Denver attorney representing Asprey and Glustrom, filed his own 10-page response. He noted Peabody claims it wants to “save time and money spent litigating issues that will not affect the outcome of the case.” The company also wants “to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial.”
The irony is that if Peabody didn’t try to litigate the spurious issue of the song, no one but the presiding judge would have seen the lyrics, and the matter wouldn’t have become the subject of unfavorable news reports from coast to coast.
Peabody’s lawyers dramatically described the plaintiff’s use of Prine’s lyrics as “inappropriate, immaterial and inflammatory,” which is a commendable use of alliteration but certainly way over the top. Other words the company used were “scandalous,” “abusive” and “offensive.”
Really? The song is that harmful to the company?
Killmer scoffed at the notion. “It’s a song. A song can’t hurt Peabody, and recitation of a portion of the song will not cause Peabody undue difficulty or expense, except that which is self-inflicted,” he wrote. “No portion of the complaint contains any material that is improper or irrelevant, and none of it will increase the cost or complexity of this litigation. Mr. Prine’s poetry will not likely confuse anyone, and Peabody would suffer no undue harm if it chose to simply ignore the introduction and related materials it now seeks to censor.”
Last week U.S. Magistrate Kelly Rankin in Cheyenne sided with the plaintiffs. “[As] the lyrics have existed since 1971, it is difficult to see how the inclusion … prejudices defendant Peabody in any way,” Rankin wrote. He added the lyrics “do not degrade Peabody’s moral character, contain repulsive language or disrespect the dignity of the court.”
Killmer obviously had some fun writing his response to Peabody’s attempt to strip out the lyrics.
“Judges at all levels have found reference to popular songs instructive in making or helping explain a broader legal point,” he noted. The lawyer said John Roberts is believed to be the first U.S. Supreme Court Chief Justice to recite a song lyric in a published opinion.
Roberts quoted Bob Dylan in Like a Rolling Stone, who sang, When you got nothing, you’ve got nothing to lose.
Actually, Dylan sang when you ain’t got nothing, but the chief justice probably thought he could make his point without using “ain’t,” because if he did a lot of English teachers would berate him.
Dylan, by the way, is by far the most quoted artist in legal opinions, according to Alex B. Long, a professor at the Oklahoma City University School of Law, who actually researched the issue. Dylan has been cited in 186 legal journals and judicial opinions, more than twice as many as The Beatles, who total 74 — and there were four of those guys. Alas, Prine failed to crack the top 10, but maybe the Wyoming case will raise his profile with jurists.
In a footnote, Killmer recalled during his studies at the University of Wyoming’s College of Law, Professor John Warnock assigned him to write a legally-oriented essay citing the titles of more than 25 songs by the Rolling Stones to support his contentions.
“The essay may have been titled ‘Get Off [of] My Cloud,'” Killmer recalled. “The professor rewarded the effort with a favorable grade, which counsel chooses to remember as an ‘A.'”
No matter how the lawsuit against Peabody is resolved, it should be remembered as a particularly peculiar First Amendment case. A company that tried to limit criticism of how it does business punished protesters by allegedly having them thrown in jail, then tried to trample the First Amendment further by erasing lyrics from their lawsuit that are protected by free speech.
The lawsuit is still scheduled to go to trial, but at this point in the proceedings Killmer should get an “A” for representing his clients and needling his opponents. He’s managed to show that legal writing does not have to be dull and incomprehensible to the average person.
The attorney also called attention to John Prine, which is always a good thing. Prine wrote the song for his father, an ex-coal miner who moved to Chicago when damage from strip mining in the Paradise area led the Tennessee Valley Authority to buy the remaining houses and bulldoze the entire town in 1967.
Prine may have used some artistic license to blame everything on Peabody, but he got the essence of the story right. Peabody was far and away the biggest strip-mining company in Kentucky, and responsible for much of the destruction.
Peabody’s supporters in Wyoming may blame outside agitators for the Gillette ruckus, but the company should probably find another state to host its shareholder meetings.
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