Blankenship v. NBCUniversal, LLC

THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

DON BLANKENSHIP,

Plaintiff,

v. Civil Action No. 2:20-cv-000278

NBCUNIVERSAL, LLC,

CNBC, LLC, and

DOES 1-50 INCLUSIVE,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is Defendants NBCUniversal, LLC (“NBC”) and

CNBC, LLC’s (“CNBC”) Motion for Summary Judgment (ECF 56), filed

May 24, 2021. On June 7, 2021, Plaintiff Don Blankenship

responded (ECF 59) in opposition, to which NBC and CNBC replied

(ECF 60) on June 14, 2021.

I. Background

Mr. Blankenship instituted a civil action, now styled

Blankenship v. Fox News Network, LLC, et al., No. 2:19-cv-00236

(S.D.W. Va.), on March 14, 2019, in the Circuit Court of Mingo

County, asserting defamation and false light invasion of privacy

claims against numerous media organizations, reporters, and

others. See Fox News, ECF 1. The action was removed to this

court based on diversity jurisdiction. See id; 28 U.S.C. §

1332. On April 9, 2019, Mr. Blankenship amended his complaint

in the Fox News action. See id., ECF 14. The amended complaint

named, for the first time, NBC and CNBC as defendants. See id.

On March 31, 2020, the court dismissed NBC and CNBC

from the Fox News action without prejudice based upon

insufficient service of process. See id., ECF 398. On April

20, 2020, Mr. Blankenship instituted the current action against

NBC, CNBC, and fifty unnamed “Doe” defendants, asserting claims

of defamation and false light invasion of privacy.1 See ECF 1.

The complaint alleges the following.

A. General Allegations

After an explosion in a West Virginia mine resulted in

the deaths of twenty-nine miners, the United States Government

initiated an investigation into the cause of the explosion,

focusing on Massey Energy, which operated the mine, and Mr.

Blankenship, who was Massey Energy’s chief executive officer.

See id., ¶¶ 7-8, 33-36. While Mr. Blankenship was not charged

with the deaths of the miners, the Government later charged him

with three felonies, as well as one misdemeanor for conspiracy

1 The court has today dismissed the fifty “Doe” defendants

from this action given Mr. Blankenship’s failure to properly

identify them after the close of discovery.

to violate federal mine safety laws. See id., ¶ 39. On

December 3, 2015, a jury acquitted Mr. Blankenship of the felony

charges but found him guilty of the misdemeanor offense. See

id., ¶ 41. As a result, Mr. Blankenship was sentenced to one

year in prison and was released in the spring of 2017. See id.,

¶¶ 42-43.

In January 2018, Mr. Blankenship announced his

campaign to run as a Republican for a United States Senate seat

in West Virginia. See id., ¶ 44. Mr. Blankenship lost his bid

for the Republican party’s nomination in the primary election on

May 8, 2018. See id., ¶ 54. He alleges that media coverage was

responsible for his loss due to defamatory statements referring

to him as a “felon” or “convicted felon,” despite that he was

acquitted of the felony charges and was only convicted of the

misdemeanor offense. See id., ¶¶ 50-54.

Mr. Blankenship alleges that these defamatory

statements injured his reputation, prevented him from pursuing

other business opportunities, and caused him to lose the primary

election. See id., ¶¶ 21, 54. Additionally, Mr. Blankenship

alleges that many of these statements were made in conjunction

with reference to the mine disaster and therefore had the

additional effect of falsely attributing to him responsibility

for murder. See id., ¶ 20.

B. Allegations Against NBC and CNBC

NBC is an international media conglomerate and

subsidiary of Comcast Corporation, a national telecommunications

and mass-media corporation. See id., ¶ 28. NBC owns numerous

entities in the news field, including CNBC, NBC News, and MSNBC.

See id., ¶¶ 27-28. The websites that publish articles under

these names are also owned by NBC. See id. Mr. Blankenship

contends that, on May 17, 2018, Leigh Ann Caldwell, writing for

NBC’s website, NBCNews.com, published a defamatory statement

describing Mr. Blankenship as an “ex-coal baron and convicted

felon.” See id., ¶ 55 (emphasis added); see also ECF 56-5. Mr.

Blankenship also contends that, on June 25, 2018, CNBC published

an article written by Brian Schwartz, containing the defamatory

statement “[Donald Trump Jr.] also campaigned with Morrisey in

early June (sic) when he was competing in a crowded primary that

included coal baron and convicted felon Don Blankenship who is

now running as a third party candidate.” See id., ¶ 56

(emphasis added); see also ECF 56-6.

Based upon these allegations, Mr. Blankenship has

asserted defamation and false light invasion of privacy claims

against NBC and CNBC. On May 24, 2021, NBC and CNBC (the

“moving defendants”) filed the subject motion seeking summary

judgment as to the claims asserted against them.

II. Governing Standard

Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A fact is “material” if it “might affect the

outcome of the suit under the governing law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is

“genuine” if “the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Id. In deciding a

motion for summary judgment, the court must view the evidence

and all reasonable inferences drawn therefrom in a light most

favorable to the non-moving party. See Tolan v. Cotton, 572

U.S. 650, 651, 657 (2014) (per curiam).

III. Discussion

A. Defamation

Defamation is “[a] false written or oral statement

that damages another’s reputation.” Pritt v. Republican Nat.

Comm., 557 S.E.2d 853, n.12 (W. Va. 2001) (quoting Black’s Law

Dictionary 427 (7th ed. 1999)).

West Virginia law identifies three types of plaintiffs

in defamation cases: (1) public officials and candidates for

public office, (2) public figures, and (3) private individuals.

See Syl. Pt. 10, Hinerman v. Daily Gazette Co., 423 S.E.2d 560,

564 (W. Va. 1992); see generally Wilson v. Daily Gazette Co.,

588 S.E.2d 197 (W. Va. 2003) (discussing types of public figures

in defamation suits). The first step in assessing a claim for

defamation is to determine whether the plaintiff is a private

individual or is instead a candidate for public office, a public

official, or a public figure. See Zsigray v. Langman, 842

S.E.2d 716, 722 (W. Va. 2020). Mr. Blankenship concedes that he

qualifies as both a candidate for public office and a public

figure.2 See ECF 59 at 4-5; see also Fox News ECF 953 at 14.

While the statements at issue herein were published on May 17,

2018, and June 25, 2018, after the conclusion of the primary

election, the court finds that Mr. Blankenship qualified as a

candidate for public office through this time given his

intention to run as the Constitution Party’s candidate for the

United States Senate.3

2 Based upon nearly identical allegations in Mr.

Blankenship’s complaint in the Fox News action, the court

determined that Mr. Blankenship qualifies as a candidate for

public office and “may also qualify as a public figure in West

Virginia based on his ‘prominence and notoriety’”. See Fox News

ECF 398 at 17 (citing State ex rel. Suriano v. Gaughan, 480

S.E.2d 548, 556 (W. Va. 1996)).

3 The Supreme Court of Appeals of West Virginia did not

reject Mr. Blankenship’s attempt to run as the Constitution

Party’s candidate until August 29, 2018. See State ex rel.

As Mr. Blankenship concedes, his notoriety in the

state of West Virginia, his pervasive involvement in the

national political arena, and the extensive national media

attention he has received as set forth in detail in the court’s

memorandum opinion and order entered this same date in the Fox

News action make clear that he also qualifies as a public

figure. See Wilson, 588 S.E.2d at 205 (explaining that an

individual’s “general fame or notoriety in the state and

pervasive involvement in the affairs of society” renders that

individual an “all-purpose public figure” in a defamation

action.). Regardless of whether Mr. Blankenship is referred to

as a candidate for public office or public figure, the First

Amendment protections are the same for each. See Gertz v.

Robert Welch, Inc., 418 U.S. 323, 336 (1974) (noting the test

set forth in New York Times v. Sullivan applies to both

“criticism of ‘public figures’ as well as ‘public officials.’”);

see also Monitor Patriot Co. v. Roy, 401 U.S. 265, 271 (1971)

(noting that it “might be preferable to categorize a candidate

for [public office] as a ‘public figure,’” as opposed to a

public official, “if for no other reason than to avoid straining

the common meaning of words. But . . . it is abundantly clear

Blankenship v. Warner, 825 S.E.2d 309, 312 n.1 (W. Va. 2018).

The court later issued its written opinion detailing its

decision on October 5, 2018. Id.

that, whichever term is applied, publications concerning

candidates [for public office] must be accorded at least as much

protection under the First and Fourteenth Amendments as those

concerning occupants of public office.”).

To recover in a defamation action, a plaintiff who

qualifies as a candidate for public office must prove that:

(1) there was the publication of a defamatory

statement of fact or a statement in the form of an

opinion that implied the allegation of undisclosed

defamatory facts as the basis for the opinion;4 (2) the

stated or implied facts were false; and, (3) the

person who uttered the defamatory statement either

knew the statement was false or knew that he was

publishing the statement in reckless disregard of

whether the statement was false.

4 In its March 31, 2020, memorandum opinion and order in the

Fox News case, the court concluded that the challenged

statements identified in Mr. Blankenship’s complaint are capable

of defamatory meaning and may also be considered defamatory per

se because they impute a felony conviction. See Fox News ECF

398 at 18-20. To the extent any of the statements could be

considered opinions, the court concluded “they are based on a

‘provably false assertion of fact’ and thus are not absolutely

protected under the First Amendment.” Id. at 20. The court

incorporates its previous findings here and concludes that the

challenged statements herein are not only capable of defamatory

meaning but constitute defamation per se as a matter of law.

The court recognizes that Mr. Blankenship was convicted of a

misdemeanor offense, which amounts to a criminal conviction.

Nonetheless, inasmuch as “a felony conviction carries

significantly greater legal consequences than a misdemeanor

does,” the court concludes the per se rule is still applicable.

Myers v. The Telegraph, 332 Ill.App.3d 917, 773 N.E.2d 192, 197

(2002) (concluding the defamation per se rule should still apply

given the “little, if any, practical difference between falsely

accusing a person of committing a crime and falsely attributing

a felony conviction to a person who pleaded guilty only to a

misdemeanor.”).

Syl. Pt. 5, Chafin v. Gibson, 578 S.E.2d 361, 363 (W. Va. 2003)

(per curiam) (emphasis omitted) (quoting Syl. Pt. 1, Hinerman,

423 S.E.2d at 563); accord Syl. Pt. 7, Pritt, 557 S.E.2d at 855;

see also State ex rel. Suriano, 480 S.E.2d at 561 (setting forth

nearly identical elements in a defamation action involving a

limited purpose public figure). Further, the West Virginia

Supreme Court of Appeals has also held that, to sustain a

defamation action, a plaintiff who qualifies as a candidate for

public office must also prove that “the publisher intended to

injure the plaintiff through the knowing or reckless publication

of the alleged libelous material.” Syl. Pt. 4, Chafin, 578

S.E.2d at 363 (quoting Syl. Pt. 1, Sprouse v. Clay Commc’n Inc.,

211 S.E.2d 674, 679 (1975)); accord Syl. Pt. 6, Pritt, 557

S.E.2d at 855; see also State ex rel. Suriano, 480 S.E.2d at 561

(noting a limited purpose public figure must also prove a

publisher’s intent to injure). A plaintiff who qualifies as a

candidate for public office must prove each of the elements of

his claim by clear and convincing evidence. See Chafin, 578

S.E.2d at 366-67; Pritt, 557 S.E.2d at 862; Hinerman, 423 S.E.2d

at 572-73.

The moving defendants contend that Mr. Blankenship’s

defamation claims fail inasmuch as Mr. Blankenship has failed to

produce clear and convincing evidence demonstrating: (1) actual

malice; (2) material falsity of the alleged defamatory

statements; and (3) an intent to injure.5

1. Actual Malice

To satisfy the essential elements of a defamation

cause of action, a plaintiff who qualifies as a candidate for

public office must prove “actual malice” on the part of the

publisher, that is, that the publisher made the defamatory

statement “‘with knowledge that the statement was false or with

reckless disregard of whether it was false or not.’” Chafin,

578 S.E.2d at 366 (brackets omitted) (quoting N.Y. Times Co. v.

Sullivan, 376 U.S. 254, 280 (1964)).

The actual malice standard derives from the United

States Supreme Court’s decision in Sullivan and its progeny,

which, as recognized by the Supreme Court of Appeals of West

Virginia, “placed a [F]irst [A]mendment, free speech gloss upon

all prior law of defamation.” Havalunch, Inc. v. Mazza, 294

S.E.2d 70, 73 (W. Va. 1983); see id. (noting that First

Amendment concerns and concomitant protections provided by the

actual malice standard, are at their “strongest” when the

5 The moving defendants also contend that Mr. Blankenship

has failed to produce evidence of causation or compensable

damages.

statement at issue concerns “a public official or candidate for

office because of the need for full, robust, and unfettered

public discussion of persons holding or aspiring to offices of

public trust.”). Thus, “‘application of the state law of

defamation’ is limited . . . by the First Amendment,” CACI

Premier Tech., Inc. v. Rhodes, 536 F.3d 280, 293 (4th Cir. 2008)

(quoting Milkovich v. Loarin Journal Co., 497 U.S. 1, 14

(1990)), and the court applies federal law in assessing the

element of actual malice, see Berisha v. Lawson, 973 F.3d 1304,

1314 n.6 (11th Cir. 2020).

“‘Actual malice is a subjective standard.’” Fairfax

v. CBS Corp., 2 F.4th 286, 293 (4th Cir. 2021) (alteration

omitted) (quoting Reuber v. Food Chem. News, Inc., 925 F.2d 703,

714 (4th Cir. 1991) (en banc)). Thus, “[t]he actual malice

standard requires that ‘the defendant had a particular,

subjective state of mind at the time the statements were made.’”

Id. at 295 (quoting Horne v. WTVR, LLC, 893 F.3d 201, 211 (4th

Cir. 2018)). Accordingly, “[a] plaintiff must prove that the

defendant published the statement despite actually knowing it

was false or harboring ‘a high degree of awareness of probable

falsity.’” Id. at 293 (ellipsis omitted) (quoting Reuber, 925

F.2d at 714). To show reckless disregard for the truth, then,

“a plaintiff must prove that ‘the defendant in fact entertained

serious doubts as to the truth of his publication.’” Id.

(quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968)).

A plaintiff who is a candidate for public office bears

the heavy burden of proving actual malice by clear and

convincing evidence. See CACI, 536 F.3d at 293 (citing Carr v.

Forbes, Inc., 259 F.3d 273, 282 (4th Cir. 2001); see also Carr,

259 F.3d at 282 (4th Cir. 2001) (“Establishing actual malice is

no easy task . . . .”). At the summary judgment stage, the

appropriate inquiry for the court is “whether the evidence in

the record could support a reasonable jury finding . . . that

the plaintiff has shown actual malice by clear and convincing

evidence.” Anderson, 477 U.S. at 255-56; see Harte-Hanks

Commc’ns v. Connaughton, 491 U.S. 657, 685 (1989) (“The question

whether the evidence in the record in a defamation case is

sufficient to support a finding of actual malice is a question

of law.”).

The moving defendants first contend that Mr.

Blankenship has not and cannot produce sufficient evidence to

support a jury finding of actual malice by clear and convincing

evidence. Specifically, they assert that Mr. Blankenship has

not produced evidence that Ms. Caldwell or Mr. Schwartz - - the

authors of the articles at issue – - knew that their references

to Mr. Blankenship as a “convicted felon” were false or that

they entertained serious doubts regarding the truth of their

statements at the time of publication.

The moving defendants rely on the affidavits of Ms.

Caldwell and Mr. Schwartz in support of their assertion that

they were unaware that their statements regarding Mr.

Blankenship’s conviction were false and that they did not

publish their statements with reckless disregard as to their

falsity. Ms. Caldwell states in her affidavit that “at the time

[she] wrote the May 17 Article, [she] believed Don Blankenship

had been convicted of a felony and had no doubt or reason to

doubt that the May 17 Article was accurate.” ECF 56-5, ¶ 5.

She further states that she “knew that Don Blankenship had been

convicted of a serious crime and went to prison after a fatal

mine explosion, and [she] believed that the crime was a felony.

[She] did not learn that Mr. Blankenship had been convicted of a

misdemeanor, rather than a felony, until sometime after Mr.

Blankenship sued NBC.” Id. at ¶ 6.

Mr. Schwartz likewise states in his affidavit that

“[a]t the time [he] wrote the June 25 Article, [he] believed Don

Blankenship had been convicted of a felony and had no doubt or

reason to doubt that the June 25 Article was accurate.” ECF 56-

6, ¶ 5. He further states that he “knew that Don Blankenship

had been convicted of a serious crime and went to prison after a

fatal mine explosion, which [he] believed that the crime was a

felony. [He] did not learn that Mr. Blankenship had been

convicted of a misdemeanor, rather than a felony, until sometime

after Mr. Blankenship sued CNBC.” Id. at ¶ 6. The moving

defendants assert that Mr. Blankenship has produced no evidence

to refute these affidavits and, in fact, never deposed Ms.

Caldwell or Mr. Schwartz.

As to the article written by Ms. Caldwell, the moving

defendants note that Mr. Blankenship testified during his

deposition that he did not know Ms. Caldwell, how she came to

use the words “convicted felon” in the article, or anything

about the research she conducted for the same. See ECF 56-2 at

165-66. Mr. Blankenship further testified that he did not

recall ever reading Ms. Caldwell’s article and did not know

whether it was part of his lawsuit. See id. at 164-65.

As to the article written by Mr. Schwartz, Mr.

Blankenship made similar statements in his deposition testimony.

Specifically, he testified that he did not know Mr. Schwartz,

anything about his research process regarding his article, or

how he came to use the words “convicted felon” therein. See id.

at 170-71.

The moving defendants further contend that the record

is devoid of any evidence that the authors’ references to Mr.

Blankenship as a convicted felon amount to anything more “than

the use of an imprecise term to convey that [his] crime was

serious.” ECF 57 at 12. They aver that the record supports

that the authors’ use of the imprecise language was

understandable under the circumstances as evidenced by Mr.

Blankenship’s deposition testimony, wherein he stated that

roughly 100 different media outlets had referred to him as a

felon or convicted felon during this same time. See id.; see

also ECF 56-2 at 81-82. Inasmuch as Mr. Blankenship is unable

to produce clear and convincing evidence that the authors of the

subject articles entertained serious doubts as to the truth of

their publications, the moving defendants contend summary

judgment is warranted.

Mr. Blankenship responds that the issue of actual

malice should not be addressed at the summary judgment stage

inasmuch as it involves determinations regarding the authors’

state of mind. He also contends that the moving defendants “had

a high degree of awareness of the probable falsity” of the

defamatory publications given that NBC had previously reported,

on or about April 6, 2016, that he had only been convicted of a

misdemeanor.6 Additionally, Mr. Blankenship asserts that the

6 Mr. Blankenship refers to this April 6, 2016, article in

his response brief and in paragraph fifty-five of his complaint.

See ECF 59 at 8-9; ECF 1 ¶ 55. The court notes, however, that

fact that his conviction was a matter of public record and thus

readily available to the authors supports a finding of actual

malice. He further contends that the moving defendants’ failure

to issue corrections to the publications at issue support a

finding of actual malice. Lastly, he asserts that the authors’

violations of NBCUniversal News Group’s Policies and Guidelines

regarding accuracy and corrections demonstrate actual malice.

The court will address each contention in turn.

First, Mr. Blankenship contends “[a]s a preliminary

matter,” that “the issue of ‘actual malice’ is rarely

appropriate for summary judgment because it involves

determinations with respect to the defendant’s state of mind.”

ECF 59 at 5. He further asserts it is inappropriate for the

court to address actual malice at this stage inasmuch as the

existence of the same hinges on the credibility of the authors,

which is a subjective evaluation for the jury. In support of

this contention, Mr. Blankenship cites dicta from a footnote of

the Supreme Court’s decision in Hutchinson v. Proxmire, 443 U.S.

111 (1979), for the proposition that the issue of actual malice

“does not readily lend itself to summary disposition” because it

“calls a defendant’s state of mind into question.” 443 U.S. at

Mr. Blankenship has not provided a copy of this unidentified

April 6, 2016, article into evidence.

120 n.9. He goes on to cite numerous cases in which courts have

denied summary judgment in defamation actions where genuine

issues of material fact existed as to whether the defendant

acted with actual malice. See e.g., ECF 59 at 5-6.

Mr. Blankenship’s contention is unavailing when

squared with the controlling precedent on this issue.7 In

Anderson, the Supreme Court held that

the determination of whether a given factual dispute

requires submission to a jury must be guided by the

substantive evidentiary standards that apply to the

case. . . . . [W]here the factual dispute concerns

actual malice . . . the appropriate summary judgment

question will be whether the evidence in the record

could support a reasonable jury finding either that

the plaintiff has shown actual malice by clear and

convincing evidence or that the plaintiff has not.

477 U.S. at 255-56. The standard articulated in Anderson

clearly contemplates that summary judgment is an appropriate

procedure for addressing actual malice. Indeed, the Court in

Anderson expressly rejected the argument that a defendant in a

public-figure defamation action “should seldom if ever be

granted summary judgment where his state of mind is at issue and

the jury might disbelieve him or his witnesses as to this

7 Mr. Blankenship made this same contention in the related

Fox News action in response to many of the defendants’ motions

for summary judgment, which the court rejected for identical

reasons in its memorandum opinion and order entered therein this

same date.

issue.” Id. at 256.8 Instead, the Court explained, if the

defendant shows there is no genuine factual dispute as to actual

malice, “the plaintiff is not . . . relieved of his own burden

of producing in turn evidence that would support a jury

verdict.” Id. Thus, “the plaintiff must present affirmative

evidence in order to defeat a properly supported motion for

summary judgment,” and “[t]his is true even where the evidence

is likely to be within the possession of the defendant, as long

as the plaintiff has had a full opportunity to conduct

discovery.” Id. at 257.

The upshot of Anderson, then, is that the summary

judgment procedure is not foreclosed simply because the actual

malice inquiry involves evidence pertaining to a defendant’s

state of mind and that summary disposition on the actual malice

issue is neither favored nor disfavored. As a descriptive

matter, however, in light of the heightened showing required of

public figure plaintiffs, “[s]ummary judgment for the publisher

is quite often appropriate,” not necessarily because it is

8 The Court in Anderson explained that the Court’s

“statement in Hutchinson . . . that proof of actual malice ‘does

not readily lend itself to summary disposition’ was simply an

acknowledgment of [the Court’s] general reluctance to grant

special procedural protections to defendants in libel and

defamation actions in addition to the constitutional protections

embodied in the substantive laws.” 447 U.S. at 256 n.7

(internal citations and quotation marks omitted).

favored,9 but “because of the difficulty a public [figure] has in

showing ‘actual malice.’” St. Surin v. Virgin Islands Daily

News, Inc., 21 F.3d 1309, 1318 (3d Cir. 1994); see also CACI,

536 F.3d at 293 (explaining that “establishing actual malice is

no easy task” at the summary judgment stage (brackets and

quotation marks omitted)). Mr. Blankenship’s contention is thus

without merit.

Second, Mr. Blankenship asserts that the moving

defendants “had a high degree of awareness of the probable

falsity” of the defamatory publications given that NBC had

previously reported, on or about April 6, 2016, that he had only

been convicted of a misdemeanor. ECF 59 at 8. Aside from this

bare assertion, however, Mr. Blankenship has failed to provide

9 But see Kahl v. Bureau of Nat’l Affairs, Inc., 856 F.3d

106, 108 (D.C. Cir. 2017) (Kavanaugh, J.) (“To preserve First

Amendment freedoms and give reporters, commentators, bloggers,

and tweeters (among others) the breathing room they need to

pursue the truth, the Supreme Court has directed courts to

expeditiously weed out unmeritorious defamation suits.”); id. at

116 (“Summary proceedings ‘are essential in the First Amendment

area because if a suit entails long and expensive litigation,

then the protective purpose of the First Amendment is thwarted

even if the defendant ultimately prevails.’” (quoting Farrah v.

Esquire Mag., 736 F.3d 528, 534 (D.C. Cir. 2013))). The

decision in Kahl comes at the summary judgment stage, wherein

the appellate court reversed the district court’s decision

denying the defendant’s motion for summary judgment given the

lack of evidence that the defendant acted with actual malice.

Id. at 118.

or specifically identify any such article or publication in the

record.

Absent some evidentiary support for such assertion,

the court is unable to conclude that Mr. Blankenship has

demonstrated any showing of actual malice by clear and

convincing evidence. Moreover, even assuming the unidentified

article or publication existed, Mr. Blankenship has failed to

provide evidence that Ms. Caldwell or Mr. Schwartz knew of its

existence at the time their articles were written. In fact, Mr.

Blankenship never deposed Ms. Caldwell or Mr. Schwartz. As the

court previously explained in its opinion in Blankenship v.

Napolitano, “the ‘mere presence’ of previous stories in a [media

organization’s] files does not establish that the [media

organization] knew that the statement was false ‘since the state

of mind required for actual malice would have to be brought home

to the persons in the . . . organization having responsibility

for the publication of the [statement].’” 451 F. Supp. 3d 596,

619 (S.D. W. Va. 2020) (quoting Sullivan, 376 U.S. at 287). In

other words, absent evidence that Ms. Caldwell or Mr. Schwartz

were aware of the unidentified publication that allegedly

reported that Mr. Blankenship had been convicted of a

misdemeanor, the mere existence of the same is of little moment

respecting whether the moving defendants possessed actual

malice.

Third, Mr. Blankenship asserts that the fact that his

conviction was a matter of public record and thus readily

available to the authors at the time their articles were written

supports a finding of actual malice. Simply put, Mr.

Blankenship contends the authors failed to investigate the

nature of his conviction before publishing. The court, however,

is unpersuaded by this assertion. Importantly, “recklessness

‘is not measured by whether a reasonably prudent man would have

published or would have investigated before publishing.’”

Fairfax, 2 F.4th at 293 (quoting St. Amant, 390 U.S. at 731).

Thus, a publisher’s “failure to investigate before publishing,

even when a reasonably prudent person would have done so, is not

sufficient to establish reckless disregard” without more.10

10 “[F]ailure to investigate before reporting a third

party’s allegations can be reckless ‘where there were obvious

reasons to doubt the veracity of the informant or the accuracy

of his reports.’” Fairfax, 2 F.4th 286 at 293 (quoting Harte-

Hanks, 491 U.S. at 688). Mr. Blankenship has produced no

evidence that the authors actually relied on any information or

sources that should have provided them with obvious reasons to

doubt the accuracy thereof. In fact, he has produced no

evidence to refute the authors’ sworn statements that they

believed he had been convicted of a felony and had no reason to

doubt the same at the time the articles were published. See ECF

56-5, ¶ 5; ECF 56-6, ¶ 5. Mr. Blankenship merely contends the

authors should have consulted public records before publication,

which is insufficient to establish actual malice.

Harte-Hanks, 491 U.S. at 688. Accordingly, the authors’ mere

failure to consult public records regarding Mr. Blankenship’s

conviction cannot establish actual malice by clear and

convincing evidence given that a “failure to investigate is

precisely what the Supreme Court has said is insufficient to

establish reckless disregard for the truth.” Pippen v.

NBCUniversal Media, LLC, 734 F.3d 610, 614 (7th Cir. 2013).

Fourth, Mr. Blankenship avers that the authors’

failure to correct their publications describing him as a

“convicted felon” supports a finding of actual malice. This

contention, too, is lacking in merit. As the court has

previously explained, a publisher’s failure to correct or

retract a statement once it learns of its falsity does not

support a showing of actual malice. See Napolitano, 451 F.

Supp. 3d at 619 (noting “[a]ctual malice cannot be inferred from

a publisher’s failure to retract . . . a statement once it

learns it to be false.”); see also Pippen, 734 F.3d at 614

(explaining that the Supreme Court in Sullivan concluded “that

actual malice cannot be inferred from a publisher’s failure to

retract a statement once it learns it to be false.”). The

authors’ sworn statements indicate that they did not learn that

Mr. Blankenship’s conviction was for a misdemeanor rather than a

felony until after Mr. Blankenship sued the moving defendants,

and Mr. Blankenship has produced no evidence to the contrary.

See ECF 56-5, ¶ 6; ECF 56-6, ¶ 6. Thus, the authors’ failure to

correct an inaccuracy that was unknown to them at the time of

publication fails to establish actual malice.

Lastly, Mr. Blankenship contends that the authors’

violations of NBCUniversal News Group’s Policies and Guidelines

regarding accuracy and corrections demonstrate actual malice.

Mr. Blankenship relies upon the following excerpts from the

internal policy:

1. “The NBCUniversal Group (News Group) – NBC News, MSNBC, and

CNBC – stands for accuracy, fairness, independence, and

integrity.” ECF 59-1 at 5.

2. “We are responsible for everything we report in any and all

media. The correspondent/reporter and the

producers/writers (including freelancers) of a specific

report are ultimately responsible for its content,

including the accuracy of the words . . .” Id. at 7.

3. “Accuracy and fairness are fundamental principles of

journalism. . . . Accuracy is about ensuring all of the

facts are correct and presenting them in their proper

context. . . . Fairness is keeping an open mind about the

nature of a story, making good faith, timely efforts to

seek out and present all relevant points of view, and

avoiding a rush to judgment.” Id. at 11.

4. “If it is determined that a clarification or correction is

necessary, it should be addressed as soon as reasonably

possible within the same program and/or any other platform

where the content has been distributed.” Id. at 18.

Mr. Blankenship avers that the authors’ deviated from

these internal standards when they referred to him as a

convicted felon in their publications, which he contends is

evidence that the moving defendants recklessly disregarded the

truth. This contention, however, fares no better than its

predecessors.

Even assuming the authors’ conduct amounted to a

violation of the journalistic standards set forth in

NBCUniversal News Group’s Policies and Guidelines, this alone is

insufficient to establish a showing of actual malice by clear

and convincing evidence. Indeed, as the Supreme Court has made

clear, “a public figure plaintiff must prove more than an

extreme departure from professional standards” to demonstrate

actual malice. Harte-Hanks, 491 U.S. at 665; see also Reuber,

925 F.2d at 711-12 (noting that “the Harte-Hanks Court went to

some lengths to reaffirm that a departure from accepted

standards alone does not constitute actual malice.”); Hinerman,

423 S.E.2d at 573 (“[E]gregious deviation from accepted

standards of journalism standing alone will not carry the day

for a public official libel plaintiff . . . .” (emphasis in

original)). Inasmuch as Mr. Blankenship has failed to produce

any other evidence that would support a finding of actual

malice, the mere allegation that the authors’ deviated from

NBCUniversal News Group’s journalistic standards cannot alone

save his claim.

In sum, Mr. Blankenship has failed to produce

sufficient evidence that would permit a reasonable jury to

conclude that the authors published their references to him as a

convicted felon with knowledge or reckless disregard of their

falsity. Mr. Blankenship has thus failed to meet his burden of

establishing actual malice by clear and convincing evidence,

which is detrimental to his claim. Accordingly, the moving

defendants are entitled to summary judgment on the defamation

claims against them.11

B. False Light Invasion of Privacy

West Virginia recognizes a legally protected interest

in privacy. Tabata v. Charleston Area Med. Ctr., Inc., 759

S.E.2d 459, 464 (W. Va. 2014). “Publicity which unreasonably

places another in a false light before the public is an

actionable invasion of privacy.” Syl. Pt. 12, Crump v. Beckley

Newspapers, Inc., 320 S.E.2d 70, 74 (W. Va. 1983). Although the

Supreme Court of Appeals of West Virginia has not definitively

set forth elements for the cause of action, it appears that, for

11 Given that Mr. Blankenship has failed to produce clear

and convincing evidence of actual malice, an essential element

of his defamation claim, the court need not address the

sufficiency of evidence with respect to the remaining elements.

a plaintiff who qualifies as a candidate for public office to

establish a case for a false light invasion of privacy, he must

prove that: (1) the defendant gave publicity to a matter

concerning the plaintiff that places the plaintiff before the

public in a false light, (2) the publicity was widespread, (3)

the matter of the publicity was false, (4) the false light in

which the plaintiff was placed would be “highly offensive to a

reasonable person,” and (5) the defendant “had knowledge of or

acted in reckless disregard as to the falsity of the publicized

matter and the false light in which the [plaintiff] would be

placed” (i.e., actual malice). Taylor v. W. Virginia Dep’t of

Health & Human Res., 788 S.E.2d 295, 315–16 (W. Va. 2016)

(citing Restatement (Second) of Torts § 652E (1977)); see Crump,

320 S.E.2d at 87-88.

Although “false light invasion of privacy is a

distinct theory of recovery entitled to separate consideration

and analysis,” claims of false light invasion of privacy are

similar to defamation claims, and courts often treat them in

essentially the same manner as they treat defamation claims.

Crump, 320 S.E.2d at 87. As the Supreme Court of Appeals of

West Virginia has recognized, the First Amendment-derived actual

malice standard announced in Sullivan applies to claims for

false light invasion of privacy brought by plaintiffs who are

public officials or public figures. See Crump, 320 S.E.2d at

88-90 (citing Curtis Publ’g Co. v. Butts, 388 U.S. 130 (1967);

Time, Inc. v. Hill, 385 U.S. 374 (1967)).

Thus, to withstand summary judgment on his false light

invasion of privacy claim, the plaintiff, as a matter of federal

constitutional law, must adduce sufficient evidence that could

reasonably support a jury finding of actual malice by clear and

convincing evidence. See Anderson, 477 U.S. at 255-56; see also

Howard v. Antilla, 294 F.3d 244, 248-49, 252 (1st Cir. 2002)

(requiring actual malice to be proved by clear and convincing

evidence for false light invasion of privacy claim); Solano v.

Playgirl, Inc., 292 F.3d 1078, 1084 (9th Cir. 2002) (same);

Ashby v. Hustler Mag., Inc., 802 F.2d 856, 860 (6th Cir. 1986)

(same); Douglass v. Hustler Mag., Inc., 769 F.2d 1128, 1140 (7th

Cir. 1985) (same); cf. Parson v. Farley, 800 F. App’x 617, 623

(10th Cir. 2020) (affirming jury instructions requiring actual

malice to be proved by clear and convincing evidence for false

light invasion of privacy claim); Peoples Bank & Tr. Co. of

Mountain Home v. Globe Int’l Publ’g, Inc., 978 F.2d 1065, 1067 &

n.2 (8th Cir. 1992) (same).

As previously explained in detail above, Mr.

Blankenship has failed to produce sufficient evidence that could

reasonably support a jury finding of actual malice by clear and

convincing evidence. Accordingly, the moving defendants are

likewise entitled to summary judgment on Mr. Blankenship’s cause

of action for false light invasion of privacy.

Iv. Conclusion

Based upon the foregoing discussion, it is ORDERED

that the moving defendants’ motion for summary judgment (ECF 56)

is GRANTED and this action is DISMISSED.

The Clerk is directed to transmit copies of this

memorandum opinion and order to all counsel of record and any

unrepresented parties.

ENTER: February 2, 2022

sh Phill aD

Jo . Copenhaver, Jr.

Senior United States District Judge

28