# Blankenship v. NBCUniversal, LLC

> District Court, S.D. West Virginia · February 2, 2022

URL: https://www.frixlaw.com/law-library/cases/10730186

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** February 2, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10730186

## How later opinions describe it (automated extraction)

- noting the test set forth in New York Times v. Sullivan applies to both “criticism of ‘public figures’ as well as ‘public officials.’”
- discussing types of public figures in defamation suits
- noting a limited purpose public figure must also prove a publisher’s intent to injure

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10730186. Public record. Not legal advice.