Judge Denies Peabody Energy’s Request To Strike Protest Song

A federal judge in Wyoming says it’s tough luck that the world’s largest private coal company doesn’t dig a 1970s-era protest song.

U.S. Magistrate Kelly Rankin in Cheyenne rejected a request by Peabody Energy Corp. to strike lyrics from singer-songwriter John Prine’s “Paradise” from a federal lawsuit against the company. Prine’s 1971 song criticized Peabody’s mining activities in Kentucky.

Photo: Denise Truscello
Pearl Concert Theater, Las Vegas, Nev.

Environmental activists Thomas Asprey and Leslie Glustrom, of Boulder, Colorado, claim in their lawsuit that the company violated their civil rights by having them arrested outside a 2013 shareholders meeting in Gillette. The company denies their claims.

Lawyers for Asprey and Glustrom kicked off their federal complaint by quoting the following verse from Prine’s song:

“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.”

Peabody, which has been irritated by the song for decades, filed a lengthy brief asking for the offending verse to be stricken from the lawsuit, saying it was inflammatory and irrelevant.

In response, lawyers for the activists filed briefs arguing that they should be allowed to keep the verse in the complaint.

They said there’s nothing inappropriate about livening up typically dull legal writing by quoting song lyrics, pointing out that even U.S. Chief Justice John Roberts once quoted the line, “When you got nothing, you got nothing to lose” from Bob Dylan’s song “Like a Rolling Stone.”

Rankin, in his order filed last week, concluded that although the song lyrics add little if any relevant information to the complaint, they weren’t so disconnected, inflammatory or prejudicial as to merit removal.

“Furthermore, as the lyrics have existed since 1971, it is difficult to see how the inclusion of the lyrics in plaintiff’s complaint prejudices defendant Peabody to a greater extent,” Rankin wrote.

Cheyenne lawyer Bruce Salzburg, one of the lawyers representing Peabody, declined to comment through his office Tuesday.

Denver lawyer Darold W. Killmer is on the legal team representing the activists. “I am delighted that the judge recognized the obvious waste of time and money caused by Peabody’s motion, which was filed under the guise of saving time and money,” he said Tuesday.

Killmer said he looks forward to presenting the case to a jury to vindicate the important constitutional rights of free speech involved.

In their lawsuit, Asprey and Glustrom claim that Peabody had moved its 2013 shareholders’ meeting to the campus of Gillette College because of protests by mine workers at the company’s headquarters in St. Louis.

The pair claims police at the college told them they could only display a banner proclaiming “Peabody Abandons Miners” in a fenced area far from the building where the shareholders’ meeting took place. They claim a campus police officer arrested them after they unfurled the banner in front of the building to allow some miners to take a photo.

Campus police and the college have also denied violating Asprey’s and Glustrom’s civil rights.