Blankenship v. Manchin

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DON BLANKENSHIP, 

Plaintiff-Appellee,

v.

JOE MANCHIN, III, in his individual  No. 06-1249

capacity and in his official capacity

as Governor of the State of West

Virginia,

Defendant-Appellant.



Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

John T. Copenhaver, Jr., District Judge.

(2:05-cv-00606)

Argued: October 24, 2006

Decided: December 20, 2006

Before WILKINS, Chief Judge, GREGORY, Circuit Judge, and

James R. SPENCER, Chief United States District Judge

for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Gregory wrote the opinion, in

which Judge Spencer joined. Chief Judge Wilkins wrote a separate

opinion concurring in the judgment.

COUNSEL

ARGUED: Mitchell Eliot Zamoff, HOGAN & HARTSON, L.L.P.,

Washington, D.C., for Appellant. Robert D. Luskin, PATTON

2 BLANKENSHIP v. MANCHIN

BOGGS, L.L.P., Washington, D.C., for Appellee. ON BRIEF:

Charles R. Bailey, Vaughn Sizemore, BAILEY & WYANT, P.L.L.C.,

Charleston, West Virginia; Barbara H. Allen, OFFICE OF THE

ATTORNEY GENERAL, Charleston, West Virginia; Adam K.

Levin, HOGAN & HARTSON, L.L.P., Washington, D.C., for Appel-

lant. Patrick J. Slevin, PATTON BOGGS, L.L.P., Washington, D.C.,

for Appellee.

OPINION

GREGORY, Circuit Judge:

This appeal requires us to determine whether a sitting governor is

entitled to qualified immunity for allegedly threatening a political

rival and prominent businessman during a press conference concern-

ing a bond issue before West Virginia voters. Because we find that

the facts as alleged establish that the governor threatened imminent

adverse regulatory action and that a reasonable public official in his

position would know that such a threat is unlawful, we hold that the

governor is not entitled to immunity from this suit at the motion-to-

dismiss stage. Accordingly, we affirm the ruling of the district court.

I.

This case arises from the controversy surrounding a proposed bond

amendment to the West Virginia Constitution, supported by Governor

Joe Manchin III ("Manchin" or "the Governor" or "Appellant") and

opposed by Don Blankenship ("Blankenship" or "Appellee"). Because

this case is on appeal at the motion-to-dismiss stage, the facts are pre-

sented largely from Appellee’s complaint, with inferences drawn in

his favor. See Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d

292, 300 n.3 (4th Cir. 2006).

A.

Blankenship is the President of Massey Energy, one of the largest

coal companies in the nation and the largest in West Virginia. In addi-

tion to his corporate employment, Blankenship is an active participant

BLANKENSHIP v. MANCHIN 3

in West Virginia politics. In 2004, Blankenship campaigned against

the reelection of West Virginia Supreme Court Chief Justice Warren

McGraw. In early 2005, Blankenship publicly opposed legislation

proposed by Manchin that would have increased the coal severance

tax and funded workers’ compensation benefit plans.

In February 2005, the West Virginia legislature passed a bond

amendment to the state constitution. If approved by voters, the

amendment would have permitted the sale of over five billion dollars

worth of state general-obligation bonds to fund underfunded pension

and disability plans for teachers, judges, and other public employees.

The amendment was placed before the voters in a special election on

June 25, 2005. Blankenship opposed the amendment and began to

publicize his opposition through interviews and the financing of tele-

vision, radio, and direct-mail advertising. The Governor publicly

campaigned in support of the amendment, including, according to the

complaint, running negative advertisements portraying Blankenship

as an outsider and using staff to ask the West Virginia Secretary of

State about Blankenship’s residence.

On June 17, 2005, the Governor appeared at an American Electric

Power plant in Putnam County, West Virginia, in part to promote the

bond amendment. After his speech, the Governor took media ques-

tions. Blankenship alleges that some of the Governor’s answers

"threatened [Blankenship] by warning that the government would

scrutinize the affairs of [Blankenship] and Massey even more closely

in light of [Blankenship’s] decision to participate in the public debate

over the pension bond amendment." Compl. ¶ 16. The Governor is

quoted as remarking, "I think that [additional scrutiny] is justified

now, since [Blankenship] has jumped in there [the bond debate] with

his personal wealth trying to direct public policy." Compl. ¶ 16 (quot-

ing Ken Ward Jr., Manchin Still Sparring Over Pension Bond Bid,

Charleston (W.V.) Gazette, June 18, 2005 at 6C).

The following day, the Governor’s remarks were reported in the

Charleston Gazette.1 The article ("the Gazette Article"), headlined

1

Blankenship did not attach the Gazette article to his complaint. None-

theless, we may consider the article even at the Rule 12(b)(6) stage, as

4 BLANKENSHIP v. MANCHIN

"Manchin Still Sparring Over Pension Bond Bid," reported, in rele-

vant part:

Gov. Joe Manchin continued Friday to spar with Massey

Energy President Don Blankenship over the Governor’s

multimillion-dollar pension bond proposal. The Governor

said Blankenship, who has launched a personal campaign

against the bond plan, should expect tougher scrutiny of his

business affairs.

"I think that is justified now, since Don has jumped in there

with his personal wealth trying to direct public policy,"

Manchin said.

...

After his brief speech . . . Manchin was quizzed repeatedly

by reporters about his pension bond battle with Blankenship.

In a later interview, Manchin declined to say if he thought

Blankenship was "a good corporate citizen."

"I’m not going to sit here and try to rag on anyone,"

Manchin said.

"I truly appreciate and value every business person who

creates jobs in our state," the Governor said. "[But] I want

Don to use his creative energies in a good, positive manner."

Manchin said he was puzzled that Blankenship would not

agree to serve on a pension bond advisory committee before

launching his campaign against the Governor’s proposal.

(1) it was attached to Manchin’s motion to dismiss, and is clearly integral

to, and was relied upon in, Blankenship’s complaint; and (2) Blankenship

does not dispute its authenticity. Am. Chiropractic Ass’n v. Trigon

Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004) (quoting Phillips v.

LCI Int’l Inc., 190 F.3d 609, 618 (4th Cir. 1999)).

BLANKENSHIP v. MANCHIN 5

"The most frustrating thing going on is that there’s a person

who has been very successful financially in the business

world, and when someone asked him to be a part of a posi-

tive movement in West Virginia, he said, ‘No.’"

When asked, Manchin said that Blankenship’s campaign

against the pension bonds should and will prompt even more

scrutiny of Blankenship, who is arguably already the state’s

highest-profile coal executive.

"If you want to throw yourself into public policy, your

record is open," the Governor said.

Manchin declined to personally offer any specific criticisms

of the way Massey or Blankenship has operated, except to

note that the company has had numerous run-ins with state

environmental regulators.

"I think there have been many violations that hopefully

they’ve been able to correct," the Governor said.

Ward Jr., supra. On June 25, 2005, voters rejected the bond amend-

ment.

Blankenship alleges that in retaliation for his campaign against the

amendment, Manchin "used state government resources to reinforce

his threat against [Blankenship] and Massey." Compl. ¶ 19. On June

30, 2005, the West Virginia Department of Environmental Protection

("DEP") approved a Massey permit application to build a coal silo in

Raleigh County, West Virginia. Despite the approval, Manchin alleg-

edly ordered members of his staff to meet with DEP and other regula-

tory officials to investigate possible safety concerns with regard to the

silo site. Blankenship maintains that the Governor ignored these

safety concerns when other groups raised them previously and initi-

ated the investigation "not out of concern for the safety of residents,

but instead, in retaliation for [Blankenship’s] campaign against the

bond amendment." Compl. ¶ 19.

6 BLANKENSHIP v. MANCHIN

B.

On July 26, 2005, Blankenship commenced this action against

Manchin, in his official and individual capacities, alleging that

Manchin violated 42 U.S.C. § 1983 by unconstitutionally retaliating

against Blankenship. The complaint sought declaratory, injunctive,

and compensatory relief, as well as attorneys’ fees pursuant to 42

U.S.C. § 1988. In response, Manchin filed a motion to dismiss, alleg-

ing that Blankenship’s complaint fails to state a claim of retaliatory

action in violation of the Constitution; that Blankenship lacks stand-

ing to assert the claim; that the claims are barred by qualified immu-

nity; that monetary damages based in Manchin’s official capacity are

barred by the Eleventh Amendment; and that injunctive relief is inappro-

priate.2 On January 18, 2006, the district court denied the motion in

all respects, except for dismissing the compensatory damages claim

against Manchin in his official capacity.

Rejecting Manchin’s qualified immunity argument, the district

court began by noting that First Amendment retaliation claims are

governed by this Court’s decision in Suarez Corp. Indus. v. McGraw,

202 F.3d 676, 685 (4th Cir. 2000), where we elucidated a three-part

test for evaluating First Amendment retaliation claims against a pub-

lic official. The district court characterized the relationship between

Manchin and Blankenship as "best exhibited by the fact that the

industry in which the [Appellee] finds himself is also one over which

the state exercises robust oversight powers." Blankenship v. Manchin,

410 F. Supp. 2d 483, 492 (S.D. W. Va. 2006).

The district court then concluded that the complaint adequately

alleged threats suggesting imminent adverse regulatory action

because of Manchin’s remarks that Blankenship justifiably should

expect tougher scrutiny of his business affairs. In addition, the district

court noted that discovery would reveal whether Manchin’s actions in

ordering his staff to meet with DEP officials was an accompanying

act of retaliation against Appellee. Taking these factors together, the

2

In addition, in his reply memorandum in support of his motion to dis-

miss, Manchin argued that the district court should abstain under the doc-

trine announced in Younger v. Harris, 401 U.S. 37 (1971). This issue is

not before this Court at the present time.

BLANKENSHIP v. MANCHIN 7

district court held that the alleged threats and retaliatory conduct

would deter a person of ordinary firmness from exercising her First

Amendment rights.

Further, relying on this Court’s decisions in Trulock v. Freeh, 275

F.3d 391, 405 (4th Cir. 2001), and Suarez, the district court held that

a reasonable governor would have known that Manchin’s alleged

actions violated clearly established law. Finding a constitutional vio-

lation of a clearly established right, the district court denied the appli-

cation of qualified immunity. This appeal followed.

II.

This Court has appellate jurisdiction to consider the district court’s

denial of qualified immunity "to the extent that the [Appellant] main-

tains that [his] conduct did not violate clearly established law." Win-

field v. Bass, 106 F.3d 525, 529 (4th Cir. 1997) (en banc). We review

a district court denial of a motion to dismiss on the basis of qualified

immunity de novo, "accepting as true the facts alleged in the com-

plaint and viewing them in the light most favorable to the plaintiff."

Ridpath, 447 F.3d at 306; Jenkins v. Medford, 119 F.3d 1156, 1159-

60 (4th Cir. 1997) (en banc).

The inquiry into whether a defendant can assert qualified immunity

proceeds in two steps. First, the court must determine if the pleaded

facts demonstrate that the defendant’s conduct violated a constitu-

tional right. Ridpath, 447 F.3d at 306. If the facts do not establish the

violation of a right, qualified immunity will apply, and the motion to

dismiss on that basis should be granted. If a violation is established,

"the next, sequential step is to ask whether the right was clearly estab-

lished." Saucier v. Katz, 533 U.S. 194, 201 (2001).

A.

We first turn to the issue of whether Blankenship has properly

alleged a constitutional violation. This Court set forth the three-part

standard for pleading a First Amendment § 1983 retaliation claim in

Suarez. 202 F.3d at 686. First, the plaintiff must demonstrate that his

speech is protected. Id. Next, "the plaintiff must demonstrate that the

8 BLANKENSHIP v. MANCHIN

defendant’s alleged retaliatory conduct adversely affected the plain-

tiff’s constitutionally protected speech." Id. Finally, the plaintiff must

show "a causal relationship . . . between its speech and the defen-

dant’s retaliatory action." Id.

In this case, the first and third elements are not in dispute.3 Rather,

because the alleged retaliation is in the nature of speech,4 we must

first determine whether Manchin’s remarks were "threatening, coer-

cive, or intimidating so as to intimate that punishment, sanction, or

adverse regulatory action will imminently follow." Id. at 689. Given

the procedural posture of this case, in order for us to conclude that

Manchin did not violate Blankenship’s rights, we must conclude that

Blankenship could prove no set of facts to support his claim that

Manchin threatened imminent adverse regulatory action under Suarez.

See Ridpath, 447 F.3d at 317. The available evidence, including the

account of the Governor’s remarks in the Gazette Article, does not

allow us to reach such a conclusion.

To begin, we note that the Gazette Article is only one account of

Manchin’s remarks on June 17, 2005. Thus, even if Manchin’s quoted

remarks did not amount to a threat of imminent adverse regulatory

action, Blankenship could still prove that Manchin made threats at the

press conference that went unquoted in the Gazette Article and avoid

dismissal at the 12(b)(6) stage. Because we find that Manchin’s

3

We agree with Appellant regarding the portions of the complaint that

discuss the Governor’s ordering his staff to meet with DEP officials

regarding Massey permits. These incidents are not separate instances of

retaliation, but rather are encompassed within the alleged threat of the

Governor to scrutinize the Appellee’s business affairs. In other words,

these claims are not viable independent of the Governor’s alleged threats.

We may, however, consider these incidents in our determination of

whether the Governor’s remarks constituted a threat of imminent adverse

regulatory action. Because we do not view Manchin’s actions with

regard to the DEP investigation as the basis for an independent § 1983

claim, we need not address whether the heightened pleading standard

announced in Hartman v. Moore, 126 S. Ct. 1695 (2006), would apply

to such a claim.

4

The Suarez rule does not apply where the retaliatory speech discloses

private or damaging information about the plaintiff. See Suarez, 202 F.3d

at 688.

BLANKENSHIP v. MANCHIN 9

quoted remarks in the Gazette Article did threaten imminent adverse

regulatory action, we need not analyze Blankenship’s allegations

without the aide of the Gazette Article.

Appellant urges this Court to consider the full context of the Gov-

ernor’s remarks, especially the placement of the article at page C6 of

the newspaper, in determining whether the remarks threatened immi-

nent adverse regulatory action under Suarez. While we must examine

the full context of the newspaper article in which Appellant’s state-

ments appeared, we read the statements in the light most favorable to

Appellee and draw any reasonable inferences in his favor. See Rid-

path, 447 F.3d at 315 n.23. We must accept the allegations in the

complaint regarding the implication of Manchin’s statements, unless

they represent "unwarranted inferences, unreasonable conclusions, or

arguments," E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d

175, 180 (4th Cir. 2000), or "contradict matters properly subject to

judicial notice or by exhibit," Veney v. Wyche, 293 F.3d 726, 730 (4th

Cir. 2002). We follow this approach not because we read the Gazette

Article with a "cynical eye," as the Appellant alleges, but because this

approach is proper under Rule 12(b)(6).

We cannot draw the inference from the placement of the article in

the Gazette that the Governor’s remarks were not threats. To begin,

this case is not one for defamation, where the newspaper article itself

represents the alleged tort. Thus, although the article is helpful insofar

as it provides one account of Manchin’s remarks, which we may con-

sider in determining whether those remarks satisfy Suarez, it is not the

sole focus of our inquiry, as noted above. Second, while we may take

judicial notice of the general proposition that newspapers tend to

place important stories on their front pages, there is no evidence in the

record indicating why the Gazette Article was placed at page C6.

Such a matter is one that can be inquired into during discovery, but

is not proper at this stage of the proceedings, especially because it

would require us to draw an inference against the Appellee, contrary

to our standard of review.

Appellant’s explanation for his remarks is that they were a predic-

tion and an opinion that Blankenship’s public involvement in the

bond amendment election would invite increased scrutiny from the

media and the public. This explanation fails. It is a reasonable reading

10 BLANKENSHIP v. MANCHIN

of Manchin’s remarks to view them as a threat of imminent adverse

regulatory action against Massey, rather than a prediction about how

the media and the public would view Blankenship’s affairs. For

example, at the time of the Governor’s alleged remarks, Blankenship

was not a political novice, having spent upwards of two million dol-

lars to defeat a state Supreme Court Justice in 2004 and having fought

a campaign against Manchin’s 2005 worker’s compensation reform

legislation. Because Blankenship was a veteran of West Virginia poli-

tics and had already participated in two contentious campaigns, it is

unreasonable to conclude that the only reading of Manchin’s remarks

is that they were a warning to Blankenship that his opposition of the

bond referendum would result in increased scrutiny by the public and

the media.

Furthermore, the actual regulatory scrutiny that Massey experi-

enced shortly after the article appeared strongly supports interpreting

Manchin’s remarks as a threat of increased regulatory scrutiny. That

Manchin activated the "punitive machinery of the government"

against Massey supports our reading the Governor’s remarks as

threats, rather than predictions. Garcia v. City of Trenton, 348 F.3d

726, 729 (8th Cir. 2003).

Unlike a statement of opinion, the Governor’s remarks went

beyond "reflecting [his] own views and intent." The Balt. Sun Co. v.

Ehrlich, 437 F.3d 410, 421 (4th Cir. 2006). The "tougher scrutiny" of

his business affairs that Manchin said Blankenship should expect and

that would be "justified," intimated that Massey would receive more

scrutiny from state regulators than other, similarly situated compa-

nies. "Given the expertise of agencies in the fields they regulate, a

presumption of regularity attaches to administrative actions." Cent.

Elec. Power Co-op., Inc. v. Se. Power Admin., 337 F.3d 333, 337 (4th

Cir. 2003); accord Preston Memorial Hosp. v. Palmer, 578 S.E.2d

383, 387 (W. Va. 2003) ("We proceed . . . to determine whether the

lower court abused its discretion in reaching a decision which sets

aside the presumption of regularity generally accorded an administra-

tive agency’s decision by a reviewing court."). Tougher scrutiny by

agencies whose actions are afforded a presumption of regularity is

adverse regulatory action, because it implies harsher, or at least dispa-

rate, treatment of Massey as a direct result of Blankenship’s political

speech. Cf. Garcia, 348 F.3d at 728 ("Mayor Whitaker told Ms. Gar-

BLANKENSHIP v. MANCHIN 11

cia that the two-hour [parking] time limit would be enforced against

her, and that he was taking this action because of her complaints

about the bicycling ordinance.").

Because Massey is an industry leader in a heavily regulated indus-

try, we can draw an inference in favor of the Appellee that Massey

is subject to near-constant regulatory oversight, and any "additional"

scrutiny could be applied immediately. Indeed, the Appellee’s com-

plaint supports this conclusion by alleging the actual investigation

ordered by the Governor a mere five days after voters rejected the

bond amendment. Thus, rather than an opinion or prediction,

Manchin’s remarks are reasonably construed as threats that, as a

result of Blankenship’s speech, Massey would be subject to greater

regulation than prior to Blankenship’s remarks, or than its competitors

faced. Such a threat, directed towards an individual who is the head

of a company in a highly regulated industry, constitutes an intimation

of imminent adverse regulatory action and satisfies Suarez.

B.

Having found that Manchin’s remarks constituted retaliation under

Suarez, we undertake an objective inquiry into whether "a similarly

situated person of ‘ordinary firmness’ reasonably would be chilled by

the government conduct in light of the circumstances presented in the

particular case." Baltimore Sun, 437 F.3d at 416 (citing Constantine,

411 F.3d at 500).

In Suarez, this Court noted that "determining whether a plaintiff’s

First Amendment rights were affected by retaliatory conduct is a fact

intensive inquiry that focuses on the status of the speaker, the rela-

tionship between the speaker and the retaliator, and the nature of the

retaliatory acts." 202 F.3d at 686. This Court has previously charac-

terized the political arena as "rough and tumble," holding that a politi-

cal reporter of ordinary firmness would not "be chilled by a

politician’s refusal to comment or answer questions on account of the

reporter’s previous reporting." Baltimore Sun, 437 F.3d at 419 (citing

Eaton v. Meneley, 379 F.3d 949, 956 (10th Cir. 2004)). Finding the

restrictions imposed by the Governor in Baltimore Sun to be de

minimis, this Court noted that "typical reporters . . . are used to curry-

ing their sources’ favors." Id. In sum, we could not "accept that the

12 BLANKENSHIP v. MANCHIN

Governor’s directive . . . created a chilling effect any different from

or greater than that experienced by The Sun and by all reporters in

their everyday journalistic activities." Id. at 420.

In Eaton, the Tenth Circuit noted, "Plaintiffs in public debates are

expected to cure most misperceptions about themselves through their

own speech and debate." 379 F.3d at 956. Finding that a sheriff’s run-

ning an unauthorized background check on individuals who publicly

advocated for his recall "was not enough to chill the actions of per-

sons of ordinary firmness who enter the arena of political debate," the

Eaton court concluded that "[t]he plaintiffs . . . remained free to talk

to the media about the sheriff’s use of the [background check] system,

and they did." Id. Similarly, in Mattox v. City of Forest Park, the

Sixth Circuit noted:

As an elected public official, Mattox voluntarily placed

herself open to criticism . . . . A deliberate attempt to dis-

credit Mattox, especially if initiated in retaliation for her

actions in investigating the fire department, is perhaps an

inappropriate and unfortunate occurrence, but . . . it is not

the type of "adverse action" against which the First Amend-

ment protects. . . . We do not think it would deter a public

official of ordinary firmness from exercising his or her right

to speak under the First Amendment. Public officials may

need to have thicker skin than the ordinary citizen when it

comes to attacks on their views.

183 F.3d 515, 522 (6th Cir. 1999).

By contrast, in Garcia, a shop owner, Carolyn Garcia ("Garcia"),

complained to public officials about lax enforcement of an ordinance

prohibiting bike riding on the sidewalk. 348 F.3d at 727-28. Because

of her complaints, the mayor told Garcia that he would have police

ticket her car when she parked in violation of a two-hour parking limit

that had not previously been enforced against her or others. Within

hours of the threat, Garcia received her first traffic ticket, which was

followed by three more over the next two months. Reinstating a jury

verdict for Garcia, the Eighth Circuit distinguished Naucke v. City of

Park Hills, 284 F.3d 923 (8th Cir. 2002), a § 1983 case where "plain-

tiff charged that the defendants had made harassing, derogatory, and

BLANKENSHIP v. MANCHIN 13

humiliating comments about her," and noted that "in contrast to

Naucke, [here] defendant’s conduct went beyond mere speech, how-

ever offensive. Defendant, in his capacity as Mayor, engaged the

punitive machinery of the government in order to punish . . . Garcia

for speaking out." 348 F.3d at 729.

Given Suarez’s command that we focus "on the status of the

speaker, the relationship between the speaker and the retaliator, and

the nature of the retaliatory acts," 202 F.3d at 686, in determining the

effect on a plaintiff’s First Amendment rights and the similar, but

objective, test applied in Baltimore Sun, we begin by viewing

Blankenship as a citizen who has "entered the political debate,"

Eaton, 379 F.3d at 956. The crux of Blankenship’s claim is that

Manchin threatened retaliation against Blankenship’s company,

which operates in a highly regulated industry. Thus, the person of

ordinary firmness we consider should be one who is president of a

company in a highly regulated industry. Cf. Baltimore Sun, 437 F.3d

at 419 (considering "reporters of ordinary firmness" in the inquiry).

In sum, our inquiry is whether Manchin’s alleged conduct would chill

the free speech rights of an ordinarily firm owner of a regulated busi-

ness who has entered the political arena.

The typical reporter, as recounted in Baltimore Sun, is accustomed

to politicians’ refusing to comment and having to curry favor for

access, so that the Governor’s ban on commenting to certain reporters

in that case did not sufficiently impair the status quo as to chill

speech. See 437 F.3d at 419. Unlike a reporter, the typical citizen

involved in politics does not contend with the retaliatory conduct of

state officials as a "cost" of entering the political arena. While a citi-

zen who voluntarily enters public debate may suffer some

hardships—the public figure standard for libel, for example, may

apply to statements made about them—threats of adverse regulatory

action are not properly among these hardships. Cf. Gertz v. Robert

Welch, Inc., 418 U.S. 323, 347-50 (discussing the differing liability

standards for libel of public versus private figures); Wells v. Liddy,

186 F.3d 505 (4th Cir. 1999) (same); Wilson v. Daily Gazette Co.,

588 S.E.2d 197 (W. Va. 2003) (same).

Eaton is also inapposite to the case at bar. While Blankenship is

fully able to respond to Manchin’s criticisms through the media—for

14 BLANKENSHIP v. MANCHIN

example, countering the accusations about Massey’s safety record—

he cannot utilize the marketplace of ideas to shield himself against

adverse regulatory action. Cf. McCreary County, Ky. v. Am. Civil Lib-

erties Union of Ky., 125 S. Ct. 2722, 2747 (2005) (O’Connor, J., con-

curring) ("In the marketplace of ideas, the government has vast

resources and special status."); Finzer v. Barry, 798 F.2d 1450, 1493

(D.C. Cir. 1986) (Wald, J., dissenting) ("The driving concept of the

first amendment to promote a marketplace of ideas is twisted out of

shape when, through governmental action, only one side of the debate

is permitted access to the premium selling booth."), aff’d in part,

rev’d in part sub nom. Boos v. Barry, 485 U.S. 312 (1988). Blanken-

ship "remained free" to accuse the Governor of targeting his com-

pany, but that would do little to minimize the damage from any actual

adverse action taken against Massey. Unlike in Eaton, where the

background check conducted by the sheriff had no potential of pro-

spective harm, the threat of continued and heightened regulatory scru-

tiny of Massey loomed large, serving its function as a constant

"warning" to Blankenship about speaking out on political issues.

Similarly, this case is unlike Mattox, where there was an attempt

to discredit a public official based on his views. While Manchin was

trying to discredit Blankenship, his attempts crossed the line into

threats against Massey. As the Eighth Circuit noted in Garcia, there

is a clear difference between speech that is a "deliberate attempt to

discredit" and speech that threatens to "engage[ ] the punitive

machinery of the government in order to punish" someone for speak-

ing out. 348 F.3d at 729.

Blankenship’s actions, although not dispositive, are relevant to the

ordinary firmness inquiry. Constantine, 411 F.3d at 500. Appellant

argues that Blankenship has continued actively to participate in West

Virginia politics. Though Blankenship continues to be politically

active, he claims that his speech has been chilled and until contrary

evidence is presented, that claim must be accepted. A chilling effect

need not result in a total freeze of the targeted party’s speech. See id.

("The cause of action targets conduct that tends to chill such activity,

not just conduct that freezes it completely.") Unlike in Baltimore Sun,

Blankenship did not deny that he has been chilled or evade the ques-

tion at oral argument; rather, he continues to allege that his speech

rights have been chilled. Cf. 437 F.3d at 420 n.1. The fact that

BLANKENSHIP v. MANCHIN 15

Blankenship continues to speak is informative to our ordinary firm-

ness inquiry, but, at this stage, not dispositive. Appellant may demon-

strate that Blankenship has, as a matter of law, not been chilled in any

respect; that opportunity, however, must be undertaken with the aid

of discovery and not at the motion-to-dismiss stage.

III.

Having found that the facts as set forth in Blankenship’s complaint,

when viewed in the light most favorable to him, establish the viola-

tion of a constitutional right, we must address whether this right was

clearly established. See Saucier, 533 U.S. at 201. We undertake this

inquiry "in light of the specific context of the case, not as a broad gen-

eral proposition." In Saucier, the Supreme Court made clear that

"[t]he relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted." Id. at

201-02. In this case, in determining "[w]hether a right has been spe-

cifically adjudicated or is manifestly apparent from broader applica-

tions of the constitutional premise in question," we may consider

decisions of the Supreme Court, this Court, and the Supreme Court

of Appeals of West Virginia. Owens ex rel. Owens v. Lott, 372 F.3d

267, 279 (4th Cir. 2004).

This Court has held that "[i]t is well established that a public offi-

cial may not misuse his power to retaliate against an individual for the

exercise of a valid constitutional right." Trulock, 275 F.3d at 405 (cit-

ing Suarez, 202 F.3d at 685). In the specific context at issue here, it

is clearly established that "the First Amendment prohibits an officer

from retaliating against an individual for speaking critically of the

government." Id. at 406.

Appellant acknowledges that in Suarez, this Court held that a pub-

lic official’s retaliatory action in the nature of speech that threatens,

coerces, or intimidates, intimating that punishment, sanction, or

adverse regulatory action will imminently follow, establishes a viola-

tion of an individual’s First Amendment rights. 202 F.3d at 687.

Appellant, however, argues that Suarez did not put forth a bright line

test because it was based on a balancing of the First Amendment

rights of citizens and public officials. Although Suarez did concern

16 BLANKENSHIP v. MANCHIN

itself with striking a balance of rights between citizens and public

officials, the result of that balance was "[t]he requirement that [a]

public official’s speech include a threat, coercion, or intimidation." Id.

at 688 n.13. This requirement represents a bright line, one that the

Governor’s remarks clearly violated.

In sum, the general proposition that a government official may not

retaliate against a citizen for the exercise of a constitutional right is

clearly established law, per Trulock. The specific right at issue here,

the right to be free of threats of imminent, adverse regulatory action

due to the exercise of the right to free speech, was clearly established

by this Court in Suarez.

IV.

As Blankenship’s complaint alleges a constitutional violation of a

clearly established right, qualified immunity does not attach to the

Governor’s actions. Appellant’s motion to dismiss was properly

denied, and the ruling of the district court is affirmed.

AFFIRMED

WILKINS, Chief Judge, concurring in the judgment:

I agree that the district court correctly denied the motion to dismiss

here. Because my reasoning differs slightly from that of the majority,

however, I write separately.

As the majority correctly notes, in reviewing the denial of a motion

to dismiss, we may reverse "only if it appears beyond all doubt that

the plaintiff can prove no set of facts in support of his claim that

would entitle him to relief." Ridpath v. Bd. of Governors Marshall

Univ., 447 F.3d 292, 317 (2006) (internal quotation marks omitted).

For the reasons the majority outlines, I agree that it was clearly

established at the time of the Governor’s remarks that a threat of

increased government scrutiny, made in retaliation for Blankenship’s

political speech, violated Blankenship’s First Amendment rights. That

leaves the questions of whether Blankenship’s complaint demon-

BLANKENSHIP v. MANCHIN 17

strates that Blankenship can prove no set of facts supporting (1) his

claim that the Governor made such a threat, and (2) the proposition

that a reasonable person in the Governor’s position would have under-

stood at the time of his remarks that they constituted such a threat, see

Saucier v. Katz, 533 U.S. 194, 202 (2001) (explaining that govern-

ment official is entitled to qualified immunity unless, at the time of

the alleged violation, "a reasonable official would understand that

what he is doing violates" the right in question).

Blankenship’s complaint alleges that in response to questions about

the pension bond amendment, "the Governor threatened Plaintiff by

warning that the government would scrutinize the affairs of Plaintiff

and Massey even more closely in light of Plaintiff’s decision to par-

ticipate in the public debate over the pension bond amendment"; that

"[t]he Governor went on to say, ‘I think that is justified now, since

[Blankenship] has jumped in there with his personal wealth trying to

direct public policy’"; and that the Governor claimed that Massey was

guilty of "‘many violations’" of state environmental regulations. J.A.

9 (emphasis added).

The Governor argues that the Gazette article provides the proper

context for the statements and demonstrates that they were predictions

of scrutiny by the media and the public rather than threats of addi-

tional governmental scrutiny. That argument fails to recognize, how-

ever, that we must accept as true the allegation in the complaint that

the Governor warned Blankenship that the government would scruti-

nize him more closely in light of his decision to speak publicly

regarding the pension bond amendment. The fact remains that even

if the words quoted in the Gazette article do not comprise such a

threat themselves, Blankenship may eventually prove such a threat by

words that were not quoted in the article but that any reasonable offi-

cial in the Governor’s position would have understood to have been

a threat.

The Governor disagrees, observing that Blankenship’s complaint

plainly states that "the Governor’s threats against Plaintiff were

reported in the Charleston Gazette." Id. But the Governor’s reliance

on this language is misplaced. The Governor reads the complaint as

if it alleged that the Governor’s threats against Blankenship were

quoted in the Gazette. But, the identified language in the complaint

18 BLANKENSHIP v. MANCHIN

may simply refer to the portion of the Gazette article that paraphrased

the Governor’s words. See id. at 46 ("The governor said Blankenship,

who has launched a personal campaign against the bond plan, should

expect tougher scrutiny of his business affairs."). In fact, not only

does the complaint not plainly state that it is based only on words

quoted in the Gazette article, but it actually suggests that it is not so

limited. See id. at 9 (alleging that Governor threatened further govern-

ment scrutiny and then "went on to say" some of the words quoted

in the Gazette).

For this reason, the Governor thus has not demonstrated that

Blankenship cannot prove any set of facts that would entitle him to

relief, and I therefore concur in the judgment affirming the denial of

the motion to dismiss.