It was quite funny, if you’re into dark humor. Yesterday a group affiliated with the prankster Yes Men set up a “Coal Cares” website which, while falsely claiming affiliation with the very real coal company Peabody Coal, offered free children’s-themed asthma inhalers to any family living within a 200 mile radius of a coal plant. They then offered up such compelling facts in “favor” of coal as:

Wind Kills

Wind turbines can kill up to 70,000 birds per year, or 4.27 birds per turbine per year. Coal particulate pollution, on the other hand, kills fewer than 13,000 people per year.

Parody on par with The Onion. The site subversively directed visitors to pages like a non-profit report discussing “Death and Disease from Power Plants,” which shows that half of the country by geography, and more than half by population, is at an increased risk of death due to power plants.

Of course there’s nothing funny about electricity: we pay for power with lives. Put aside the cost in lives and treasure for our oil-dependent foreign policy. Here in the United States, natural gas drilling and hydraulic fracking contaminate some water supplies (like the water supplies around the Marcellus Shale here in Pennsylvania) so badly the drinking water literally catches fire from all the methane gas. Measured by kilowatt produced, coal production kills more than four-hundred times as many people as nuclear power. Coal plants dump into the atmosphere hundreds of thousands of tons of pollutants, including mercury, arsenic, lead, and dioxins — leading every year to 17,000 premature deaths, 120,000 cases of childhood asthma, and 12,000 hospitalizations and emergency room visits.

Maybe that’s a necessary evil. We shouldn’t keep all the lights on all night, but we obviously have to keep some lights on, keep some machines humming. Whatever you think about coal, oil, and climate change, the balance between public safety, future energy resource availability, and present economic security is one of the defining issues of our age, one that requires a robust and on-going debate.

Which brings us to the law. Can Peabody Coal sue the Yes Men for the spoof?

Maybe. (I know, lawyers say “maybe” a lot.)

But we have a lot more concrete idea of that “maybe” based upon two similar pranks and lawsuits, one involving Koch Industries (which the defendants just won on non-free speech grounds), and on brought by the U.S. Chamber of Commerce’s against the Yes Men for a similar stunt two years ago in which they faked a press conference in which the Chamber of Commerce changed course on climate change. A copy of the Chamber of Commerce’s Complaint is available here, alleging claims under the Lanham Act, including trademark infringement, unfair competition, trademark dilution, false advertising, cyberpiracy, in addition to several common law claims, including unlawful trade practices, publication of injurious falsehood, and “prima facie” tort.

The Yes Men, represented (pro bono, I presume) by the Electronic Frontier Foundation and Davis Wright Tremaine, filed a motion to dismiss (here), Public Citizen filed an amicus in support (here), the Chamber of Commerce responded (here), and the Yes Men replied (here), and they’re all still awaiting the Court’s order on that. In line with the prevailing practice in the District Court there, no discovery has taken place while the motion to dismiss is pending.

The Chamber v. Yes Men case is fascinating, well studied by anyone interested in free speech issues or who litigates defamation or trademark infringement cases. The case is right on the cutting edge of the First Amendment: on the one hand, we undoubtedly have speech on a matter of considerable public concern and importance — lobbying on climate change — while on the other hand we have an intentional attack on a private entity. Any future lawsuit by Peabody Coal would raise essentially the same issues.

Both situations raise an aspect of the First Amendment that is rarely considered. There are many ways in which to analyze the meaning of “free speech.” The most common analysis relates to what a defendant may say without legal consequence. In civil defamation lawsuits, for example, “truth is an absolute defense.” In other words, someone can always say the truth without suffering any legal consequences from a defamation claim.

Another way of analyzing free speech relates not to the absolute protections on speech, but on the necessary balance between a plaintiff’s right to seek compensation for their damages in a civil lawsuit and a defendant’s right to speak in a manner that might not be protected in all instances, but is protected in those particular instances.

That balance is the key to understanding the Chamber of Commerce case against the Yes Men, and any potential coal industry lawsuit against them. Like I wrote above, energy production is one of the defining issues of our age, but at the moment the public discourse is dominated almost entirely by the oil and coal industries. Day in and day out the American public is bombarded by “clean coal” advertising of questionable merit. When the deck is so heavily stacked in favor of this vested interests — and has recently been stacked even more heavily in favor of vested interests by the Supreme Court — is it so wrong to permit a some guerrilla political speech by the less powerful interests?

Answering that question necessarily calls upon each person’s political viewpoints, but the law as written already provides a partial answer: fact is, both the Chamber of Commerce and Peabody Coal will have a hard time proving any sort of coherent, compensible damages. Mere embarrassment isn’t enough for a corporation to start suing its critics, and as of yet neither the Chamber of Commerce nor Peabody Coal can point to any concrete, ascertainable financial loss.

We have to draw a line somewhere, and the absence of real damages is probably as rational and fair a line as any.