Petition for Writ of Certiorari — Don Blankenship, Petitioner v. NBCUniversal, LLC, et al.
Supreme Court briefMay 15, 2023
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APPENDIX
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APPENDIX
TABLE OF CONTENTS
Appendix A Opinion in the United States Court of
Appeals for the Fourth Circuit
(February 22, 2023) . . . . . . . . . . . App. 1
Appendix B Memorandum Opinion and Order in
the United States District Court for
the Southern District of West Virginia
Civil Action No. 2:20-cv-000278
(February 2, 2022) . . . . . . . . . . . App. 52
Appendix C Judgment Order in the United States
District Court for the Southern
District of West Virginia
Civil Action No. 2:20-cv-000278
(February 2, 2022) . . . . . . . . . . . App. 77
Appendix D Memorandum Opinion and Order in
the United States District Court for
the Southern District of West Virginia
Civil Action No. 2:19-cv-00236
(February 2, 2022) . . . . . . . . . . . App. 79
Appendix E Memorandum Opinion and Order in
the United States District Court for
the Southern District of West Virginia
Civil Action No. 2:19-cv-00236
(February 2, 2022) . . . . . . . . . . App. 111
ii
Appendix F Judgment Order in the United States
District Court for the Southern
District of West Virginia
Civil Action No. 2:19-cv-00236
(February 2, 2022) . . . . . . . . . . App. 205
Appendix G Memorandum Opinion and Order in
the United States District Court for
the Southern District of West Virginia
Civil Action No. 2:19-cv-00589
(February 2, 2022) . . . . . . . . . . App. 207
Appendix H Judgment Order in the United States
District Court for the Southern
District of West Virginia
Civil Action No. 2:19-cv-00589
(February 2, 2022) . . . . . . . . . . App. 230
Appendix I Supplementary Documents . . . App. 232
App. 1
APPENDIX A
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
[Filed February 22, 2023]
No. 22-1198
________________________________________________
DON BLANKENSHIP,
)
Plaintiff – Appellant,
)
)
v.
)
)
NBCUNIVERSAL, LLC; CNBC, LLC,
)
Defendants – Appellees,
)
)
and,
)
)
DOES 1 - 50, inclusive,
)
Defendant.
)
_______________________________________________ )
No. 22-1207
________________________________________________
DON BLANKENSHIP,
)
Plaintiff – Appellant,
)
)
FOX NEWS NETWORK, L.L.C.; CABLE NEWS
)
NETWORK, INCORPORATED; MSNBC CABLE )
LLC; WP COMPANY LLC, d/b/a The Washington )
Post; DOES 1-50, inclusive; MEDIAITE, LLC;
)
App. 2
FISCALNOTE, INC., d/b/a Roll Call; NEWS AND
GUTS, LLC; THE CHARLESTON
GAZETTE-MAIL; AMERICAN BROADCASTING
COMPANIES, INC.; TAMAR AUBER; GRIFFIN
CONNOLLY; ELI LEHRER,
Defendants – Appellees,
)
)
)
)
)
)
)
and,
)
)
HONORABLE ANDREW NAPOLITANO, (Ret.);
)
NATIONAL REPUBLICAN SENATORIAL
)
COMMITTEE; ASSOCIATED PRESS; BOSTON
)
GLOBE MEDIA PARTNERS, LLC; BREITBART )
NEWS NETWORK, LLC; CLARITY MEDIA
)
GROUP, INC.; THE WASHINGTON TIMES, LLC; )
TRIBUNE PUBLISHING COMPANY, LLC; LOS )
ANGELES TIMES COMMUNICATIONS, LLC;
)
NEIL CAVUTO; CHRIS HAYES; SARAH
)
ELIZABETH CUPP; BRADLEY BLAKEMAN;
)
JOHN LAYFIELD; STEPHANIE HAMILL;
)
KEVIN MCLAUGHLIN; LEIGH ANN
)
CALDWELL; MICHAEL PATRICK LEAHY;
)
JOSH DAWSEY; JENNA JOHNSON; BEN
)
WOLFGANG; MICHAEL WARREN; CATHLEEN )
DECKER; NBCUNIVERSAL, LLC; CNBC, LLC;
)
DEMOCRATIC SENATORIAL CAMPAIGN
)
COMMITTEE; THE NATIONAL JOURNAL
)
GROUP, LLC; WATAUGA WATCH; DOWN WITH )
TYRANNY; NATIONAL PUBLIC RADIO,
)
INCORPORATED; THE GUARDIAN NEWS &
)
MEDIA, LLC; DOW JONES & COMPANY,
)
INCORPORATED, d/b/a Market Watch;
)
UNIVISION COMMUNICATIONS,
)
INCORPORATED, d/b/a Splinter News;
)
App. 3
INTERNATIONAL MEDIA INVESTMENTS FZ, )
LLC, d/b/a The National; THE DAILY BEAST
)
COMPANY LLC; HEARST MAGAZINE MEDIA, )
INC, d/b/a Esquire Magazine; HAYRIDE MEDIA, )
LLC; NOWTHIS MEDIA, INC.; THE UNION
)
LEADER CORPORATION; CAPITOL HILL
)
PUBLISHING, INC, d/b/a The Hill; COMMIE
)
GIRL INDUSTRIES, INC., d/b/a Wonkette; DAILY )
MAIL AND GENERAL TRUST PLC; VICE
)
MEDIA, LLC; THE 74 MEDIA, INC., d/b/a The 74 )
Million; BREAKFAST MEDIA, LLC; THE
)
MCCLATCHY COMPANY, d/b/a The Sacramento )
Bee; OBSERVER MEDIA GROUP, LLC, d/b/a The )
Observer; GARNETT CO. INC., d/b/a York Daily )
Record; SALEM MEDIA GROUP, INC., d/b/a
)
Townhall; VERIZON MEDIA, LLC, d/b/a The
)
Huffington Post; JOY ANN LOMENA-REID;
)
ZACK COLMAN; LAUREN PASSALACQUA; BEN )
RAY; DAVID BERGSTEIN; COURTNEY RICE;
)
JUSTIN LAVOIE; JOHN KRUSHAAR; HOWIE
)
KLEIN; SUSAN DAVIS; BEN JACOBS; DAN
)
RATHER; HOLLY FIGUEROA O’REILLY; JOE
)
LOCKHART; J. W. WILLIAMSON; RACHEL
)
KONING BEALS; CHRIS JONES; JIM HEATH; )
NICOLE HENSLEY; PAUL BLEST; RASHMEE
)
ROSHAN LALL; GIDEON RESNICK; DANA
)
MILBANK; CHARLES PIERCE; MATT
)
HOWERTON; ELIZABETH MCDONALD; ROB
)
PERSEY; JEN KERNS; DAVID MARTOSKO;
)
MARTIN PENGELLY; MATT TAYLOR; KEVIN
)
MAHNKEN; ANDREW FEINBERG; JOHN
)
RABY; BEN BOYCHUK; AMBER PHILLIPS;
)
BRIAN SCHWARTZ; MICHELANGELO
)
SIGNORILE; BRUCE BIALOSKY; MIKE
)
App. 4
ARGENTO; DAVIS RICHARDSON;
)
MARKETWATCH, INC.; 35TH INC.,
)
Defendants.
)
_______________________________________________ )
No. 22-1326
________________________________________________
DON BLANKENSHIP,
)
Plaintiff – Appellant,
)
)
v.
)
)
BOSTON GLOBE MEDIA PARTNERS, LLC; d/b/a )
The Boston Globe; DOES 1 - 50, inclusive,
)
Defendants – Appellees.
)
_______________________________________________ )
Appeals from the United States District Court for the
Southern District of West Virginia, at Charleston. John
T. Copenhaver, Jr., Senior District Judge. (2:20-cv00278; 2:19-cv-00236; 2:19-cv-00589)
_______________
Argued: December 7, 2022 Decided: February 22, 2023
_______________
Before GREGORY, Chief Judge, NIEMEYER, Circuit
Judge, and Patricia Tolliver GILES, District Judge for
the Eastern District of Virginia, sitting by designation.
_______________
Affirmed by published opinion. Chief Judge Gregory
wrote the opinion, in which Judge Niemeyer and Judge
Giles joined.
_______________
App. 5
ARGUED: Eric Peter Early, EARLY SULLIVAN
WRIGHT GIZER & MCRAE LLP, Los Angeles,
California, for Appellant. Kevin Taylor Baine,
WILLIAMS & CONNOLLY LLP, Washington, D.C., for
Appellee. ON BRIEF: Jeremy J.F. Gray, Lisa M.
Zepeda, Padideh Zargari, EARLY SULLIVAN
WRIGHT GIZER & MCRAE LLP, Los Angeles,
California; Jeffrey S. Simpkins, SIMPKINS LAW,
Williamson, West Virginia, for Appellant. Stephen J.
Fuzesi, Gloria K. Maier, Matthew D. Heins, Katelyn R.
Adams, WILLIAMS & CONNOLLY LLP, Washington,
D.C., for Appellees American Broadcasting Companies,
Inc.; Cable News Network, Inc.; Fox News Network
LLC; MSNBC Cable, LLC; WP Company LLC; CNBC,
LLC; and NBCUniversal, LLC. Kelli L. Sager, Los
Angeles, California, Eric Feder, DAVIS WRIGHT
TREMAINE LLP, Washington, D.C., for Appellee
American Broadcasting, Inc. Elbert Lin, HUNTON
ANDREWS KURTH LLP, Richmond, Virginia, for
Appellee Fox News Network LLC. Jared M. Tully,
Mary Claire Davis, Charleston, West Virginia, Ryan W.
Goellner, Cincinnati, Ohio, Kevin T. Shook, FROST
BROWN TODD LLC, Columbus, Ohio, for Appellees
MSNBC Cable, LLC; CNBC, LLC; and NBCUniversal,
LLC. Lonnie C. Simmons, DIPIERO SIMMONS
MCGINLEY & BASTRESS, PLLC, Charleston, West
Virginia, for Appellees Mediaite, LLC and Tamar
Auber. Robert M. Bastress, III, DIPIERO SIMMONS
MCGINLEY & BASTRESS, PLLC, Charleston, West
Virginia, for Appellee The Charleston Gazette-Mail.
Jennifer S. Jackman, WHITEFORD, TAYLOR &
PRESTON, LLP, Washington, D.C., for Appellee Eli
Lehrer. Allen M. Gardner, LATHAM & WATKINS
LLP, Washington, D.C., for Appellees Fiscal Note, Inc.
App. 6
and Griffin Connolly. Chris Vlahos, Jenna Harris,
RITHOLZ LEVY FIELDS, LLP, Nashville, Tennessee;
William D. Wilmoth, STEPTOE & JOHNSON, PLC,
Wheeling, West Virginia, for Appellee News and Guts,
LLC.
ARGUED: Eric Peter Early, EARLY SULLIVAN
WRIGHT GIZER & MCRAE LLP, Los Angeles,
California, for Appellant. Jonathan M. Albano,
MORGAN LEWIS & BOCKIUS, LLP, Boston,
Massachusetts, for Appellees. ON BRIEF: Jeremy J.F.
Gray, Lisa M. Zepeda, Padideh Zargari, EARLY
SULLIVAN WRIGHT GIZER & MCRAE LLP, Los
Angeles, California; Jeffrey S. Simpkins, SIMPKINS
LAW OFFICE PLLC, Williamson, West Virginia, for
Appellant. Andrew M. Buttaro, MORGAN, LEWIS &
BOCKIUS LLP, Boston, Massachusetts; David K.
Henderson, Barbara A. Samples, HENDRICKSON &
LONG, PLLC, Charleston, West Virginia, for
Appellees.
_______________
GREGORY, Chief Judge:
Following an unsuccessful campaign for one of West
Virginia’s U.S. Senate seats, Don Blankenship sued
numerous media organizations and individual
journalists, alleging defamation, false light invasion of
privacy, and civil conspiracy. Blankenship’s claims
arise from misstatements of his criminal record: he was
convicted and served one year in prison for a federal
conspiracy offense that is classified as a misdemeanor,
but Defendants made statements describing him as a
“felon.”
App. 7
Most of the parties Blankenship initially named as
Defendants were dismissed early in the litigation, and
the sixteen Defendants who remained moved for
summary judgment in their respective cases. The
district court granted summary judgment to all sixteen
Defendants after concluding they did not make the
statements with actual malice. Those cases are now
before us via two appeals: a consolidated appeal from
the district court’s decisions granting summary
judgment to fifteen Defendants, and a separate appeal
from the district court’s grant of summary judgment to
the Boston Globe. Although we heard oral argument on
the appeals in seriatim, we consolidate the cases into
this single opinion. Finding no error, we affirm.
I.
A.
Don Blankenship previously served as the CEO of
Massey Energy Company, a large coal producer.
During his tenure as CEO, a 2010 explosion at one of
Massey Energy’s mines in West Virginia, the Upper
Big Branch Mine, killed twenty-nine miners.
Blankenship was indicted on several federal charges in
the wake of the Upper Big Branch Mine disaster,
including multiple felony counts. A jury ultimately
convicted him of conspiracy to violate federal mine
safety laws and regulations, a Class A misdemeanor,
but acquitted him of the felony charges. See United
States v. Blankenship, 846 F.3d 663, 666–67 (4th Cir.
2017) (affirming conviction), cert. denied, 138 S. Ct. 315
(2017). Blankenship was sentenced to one year in
federal prison (the statutory maximum), with another
year of supervised release, and was fined $250,000. He
App. 8
served his sentence at the Taft Correctional Institution
in California; of the approximately 2,400 inmates in the
prison, Blankenship maintains he was the only one
who was not serving a sentence for a felony conviction.
Blankenship was released from prison in 2017.
In January 2018, while still on supervised release,
Blankenship announced his plans to run for the U.S.
Senate in West Virginia. As a candidate in the
Republican primary, he attracted public attention for
comments he made about Senator Mitch McConnell
and then-Secretary of Transportation Elaine Chao.
Then-President Trump, Senator McConnell, and other
prominent Republicans publicly criticized Blankenship
and urged West Virginians to support another
candidate in the May 8 primary election. Blankenship
ultimately lost the primary election, finishing in third
place. He later tried to run in the general election as
the Constitution Party candidate but was unable to get
on the ballot.
During Blankenship’s Senate campaign, numerous
media organizations and journalists broadcast or
published statements that referred to him as a “felon”
or “convicted felon,” even though Blankenship’s
conviction was classified as a misdemeanor.
Defendants are sixteen of those organizations and
individuals: Fox News, MSNBC, CNN, the Washington
Post, ABC, News & Guts, Eli Lehrer, Mediaite, Tamar
Auber, Griffin Connolly, FiscalNote, HD Media,
NBCUniversal, CNBC, 35th PAC, and the Boston
Globe. Although Defendants’ references to
Blankenship’s criminal history closely resemble one
App. 9
another, we must consider the facts surrounding each
individual statement in turn.
1.
Fox News broadcast several statements that
referred to Blankenship as a felon or otherwise
misstated his criminal record. First, during an
April 25, 2018 appearance on Fox News’s Outnumbered
program, Andrew Napolitano, a Senior Judicial Analyst
for the network, remarked that Blankenship “went to
jail for Manslaughter after people died in a mine
accident.” J.A. 3878.1 Later that day, Blankenship’s
campaign contacted Fox News and demanded a
correction because Blankenship had been convicted of
conspiracy to violate federal mine safety laws and
regulations, not manslaughter. Upon learning of his
mistake, Napolitano expressed a desire to appear on
the network to set the record straight. On April 30, his
producer emailed producers of multiple Fox News
programs to ask if Napolitano could discuss the details
of Blankenship’s conviction, including one specific
request to correct the record, but the producers of those
shows were interested in different topics and did not
grant his requests.
On May 3, Antonia Ferrier—an aide to Senator
McConnell—emailed Martha MacCallum, the host of
Fox News’s The Story with Martha MacCallum. Ferrier
wrote that McConnell was “pretty ticked” about
1
Citations to the “J.A.” refer to the Joint Appendix filed by the
parties in the consolidated appeal. Citations to the “G.J.A.” refer
to the Joint Appendix filed by the parties in the separate Boston
Globe appeal.
App. 10
Blankenship making public comments attacking Chao,
McConnell’s wife. J.A. 3928. On May 4, Fox News
contributors Karl Rove and Tammy Bruce appeared on
The Story and criticized Blankenship, but did not
mischaracterize his conviction. The next day,
McConnell emailed Rove and thanked him for his
“comments on Martha’s show last night.” J.A. 3806.
On May 6, Fox News Chairman Rupert Murdoch
emailed two senior executives at the network, writing:
“Both Trump and McConnell appealing for help to beat
unelectable former mine owner who served time.
Anything during day helpful but Sean and Laura
dumping on him hard might save the day.”2 J.A. 4052.
Earlier that day, Murdoch had received an email
stating that “convicted felon” Don Blankenship was
“surging in the GOP primary polling,” J.A. 4050, but
Murdoch did not repeat the “convicted felon” language
in his email to the two executives.
On May 7, anchor Neil Cavuto discussed
Blankenship during a telecast of his Fox News show
Cavuto Coast to Coast. Returning from a commercial
break, Cavuto opened: “The president warning
Republicans, you know what, we’re going to lose West
Virginia if Don Blankenship is allowed to win the
primary and he does win the primary. Don
Blankenship, of course, is arguing that he’s the best
qualified for this. Of course, he’s a convicted felon.”
2
We understand that Murdoch was referring to Sean Hannity and
Laura Ingraham, who anchored evening programs on Fox News at
the time. Blankenship does not allege that either Hannity or
Ingraham ever defamed him.
App. 11
J.A. 3466. A couple weeks earlier, on April 25, Fox
News correspondent Peter Doocy had appeared
alongside Cavuto on the show Your World with Neil
Cavuto and noted that Blankenship “recently served a
year in jail on a misdemeanor conviction tied to his role
in a mine collapse that killed 29 people.” J.A. 3861–62.
In addition, on May 2, Cavuto had received a ten-page
briefing packet about the 2018 primary elections that
described Blankenship as seeking “vindication for his
2015 conviction on a misdemeanor charge related to the
Upper Big Branch Mine explosion that killed 29
miners.” J.A. 3867.
Between May 7 and May 9, four other Fox
commentators also referred to Blankenship as a “felon”
or “convicted felon” on air. During the May 7 broadcast
of The Evening Edit on Fox Business Network, John
Layfield described Blankenship as a “felon who’s got a
probation officer, who could end up in Congress.”
J.A. 3567. Bradley Blakeman also called Blankenship
a “felon” during that same show. J.A. 3564. On the
May 7 broadcast of Fox Business Network’s Making
Money, Stephanie Hamill referred to Blankenship as a
“convicted felon.” J.A. 3570. And on May 9, the day
after the West Virginia Senate primary, Elizabeth
MacDonald called Blankenship a “felon” on The
Evening Edit. J.A. 3573.
On May 22, two weeks after the primary election,
Cavuto interviewed Blankenship on air during Your
World. The interview included the following exchange:
BLANKENSHIP: And it’s very disappointing
that the news media and this network as well
continues to tell people I’m a felon, which—I’ve
App. 12
never been convicted of a felony. I’m probably
less likely to be a felon than anyone, given that
I was investigated for four and a half years and
they couldn’t find anything.
CAVUTO: So what are you if you’ve served time
in jail?
BLANKENSHIP: A misdemeanor [sic]. The only
misdemeanor to serve time at a felon prison in
California. So I think that should tell us
something as well when they’re sending
misdemeanors to prison so they can’t continue to
communicate for a year is—is pretty telling.
CAVUTO: You know, there are those who would
disagree with that portrayal, sir. Saying that it’s
a little bit bigger than a misdemeanor when 29
people are killed in a mining accident in 2010 for
which you—or your company, more to the point,
was held accountable for violating safety
standards and the rest. You don’t agree with
that, and obviously you felt that way afterwards.
But that would be a little more than a
misdemeanor, right?
J.A. 3552–53, 5671. Immediately after the interview,
Napolitano appeared on Your World. He told Cavuto:
“Let me say first that Don Blankenship is correct. I
once inadvertently said on air that he was a convicted
felon.3 He was not. He was acquitted of the charges, the
3
There is no evidence that Napolitano ever called Blankenship a
“convicted felon” on air. The only misstatement by Napolitano in
the record is his April 25 remark that Blankenship was convicted
App. 13
felony charges against him. The only thing he was
convicted of was a misdemeanor.” J.A. 5669. Cavuto
responded, “So, just serving a year in jail doesn’t make
you a convicted felon?” Id. Napolitano replied, “That’s
correct.” J.A. 5670.
2.
The record shows that two MSNBC anchors—Joy
Reid and Chris Hayes—referred to Blankenship as a
“convicted felon.” Reid made such a statement while
she was guest-hosting the show All In with Chris
Hayes on May 4, 2018. For his part, Hayes described
Blankenship as a “convicted felon” during the April 23
and May 9, 2018 broadcasts of All In. Hayes also
posted a tweet to his personal Twitter account on
April 16, 2018, that called Blankenship “a felonious
coal baron found responsible for dozens of miners’
deaths.” J.A. 811.
Hayes had some familiarity with Blankenship prior
to 2018. He interviewed Blankenship in 2014, and he
exchanged emails about Blankenship with members of
the All In staff in 2015 and 2016. In December 2015,
Denis Horgan, All In’s executive producer, sent Hayes
and other staff members a New York Times article that
reported on Blankenship’s conviction. Hayes replied:
“He only got nailed on the misdemeanor, tho. Probably
not a day in jail.” J.A. 845. That email exchange
predated Blankenship’s sentencing. Later, in an April
2016 email to Hayes and other All In staff, producer
Brendan O’Melia wrote that “[o]ur old friend Don
of manslaughter. That appears to be the statement Napolitano was
referring to when speaking to Cavuto on May 22.
App. 14
Blankenship [is] going to the cooler for a year.”
J.A. 903. Hayes also discussed Blankenship during the
November 29, 2017 telecast of All In. During that show,
All In displayed as on-screen graphics the headlines of
two articles about Blankenship. The bodies of those
articles—but not the headlines—briefly noted that he
was convicted of a misdemeanor offense. Hayes
apparently did not mention Blankenship’s criminal
record during the November 29 show.
In a recorded off-air conversation on April 23,
2018—hours before Hayes’s first on-air statement
calling Blankenship a felon—Hayes and All In
producer Brian Montopoli discussed plans for a
segment of that night’s show. Montopoli suggested
discussing “our old buddy Don Blankenship’s ad,” in
which Blankenship made calls to arrest and imprison
Hillary Clinton. J.A. 492. In response, Hayes
remarked, “[T]hat is, like, convicted felon . . . Don
Blankenship . . . the man who was found, you know, to
have criminally violated the law in the mine that he
owned that killed, you know, all those miners.” Id.
Montopoli replied, “Yeah.” Id.
On May 10, 2018, one day after Hayes’s second onair reference to Blankenship as a “convicted felon,” an
MSNBC viewer emailed Hayes and stated: “You
mentioned that Blankenship was a Felon on your
[show]. Unfortunately it was a misdemeanor[.] Go
figure!” J.A. 847. Hayes replied, “yes! Caught that after
the show, but you’re r[i]ght.” Id. There is no evidence in
the record that Hayes, Reid, or others at MSNBC
publicly corrected the “felon” statements, or that
App. 15
Blankenship ever contacted the network to request a
correction.
3.
Blankenship points to four occasions where CNN
commentators made similar statements during
television broadcasts. The first occurred during the
April 29, 2018 broadcast of CNN Newsroom. While
discussing the West Virginia Senate primary, host
Dana Bash told the audience that Blankenship
“reminds us [his conviction] was just a misdemeanor.”
J.A. 1383. However, a few minutes later, commentator
Kevin McLaughlin referred to Blankenship as a
“convicted felon.” J.A. 1386. Bash did not correct
McLaughlin’s statement on air.
S.E. Cupp, the host of the CNN show S.E. Cupp
Unfiltered, called Blankenship a “felon” on two
different occasions. First, on May 2, 2018, Unfiltered
played a clip of Blankenship speaking during a West
Virginia debate, which showed him saying, “I’ve had a
little personal experience with the Department of
Justice; they lie a lot too.” J.A. 1458. After the clip
played, Cupp reacted by saying, “that’s because you’re
a convict, you’re a felon. Oh my God.” Id. Then, on the
May 8 telecast of Unfiltered, Cupp remarked, “In case
you missed it, a former coal baron and convicted felon
is running for Senate in West Virginia.” J.A. 1469.
Lastly, CNN commentator Joe Lockhart referred to
Blankenship as a “convicted felon” during the May 7
broadcast of CNN Tonight. J.A. 1428.
App. 16
There is no evidence in the record that Blankenship
contacted CNN to request corrections for any of these
statements, or that CNN issued a correction.
4.
Blankenship takes issue with statements in two
stories published by the Washington Post. On July 25,
2018, the Washington Post published an online article
about Republican primary candidates, written by
reporters Jenna Johnson and Josh Dawsey, which
described Blankenship as “a former coal mine owner
and felon.” J.A. 2051. The same article appeared in the
Post’s print edition two days later. The record indicates
that Dawsey neither wrote nor reviewed the part of the
article that contained this language.
A couple weeks later, on August 9, the Washington
Post published a blog post by Amber Phillips that
identified Blankenship as one of three “convicted
felons” who ran for office in 2018. J.A. 2079. In an
earlier story published on May 1, 2018, Phillips had
reported that Blankenship “just finished a year in
prison after an explosion at one of his mines killed 29
people” and that he “was convicted on a misdemeanor
for conspiring to violate mine safety laws.” J.A. 2298.
Between May 2 and May 6, Phillips also received three
mass-distribution emails that referred to Blankenship’s
conviction as a misdemeanor. These emails contained
detailed updates and commentary on the West Virginia
primary and other political topics, and they made only
passing references to Blankenship’s conviction. One of
the three included the transcript for an entire episode
of Face the Nation, a weekly political news program on
CBS.
App. 17
There is no record evidence that Blankenship ever
contacted the Washington Post to request a correction.
The Post issued corrections to both stories after
learning of Blankenship’s lawsuit in 2019.
5.
Blankenship’s claims against ABC revolve around
a single story. On July 23, 2018, ABC published an
article by reporter John Verhovek that discussed
Blankenship’s intentions to run for the Senate as a
third-party candidate after he lost the Republican
primary. The article referred to Blankenship as “the
former coal baron and convicted felon” and explained
that he “was convicted in 2015 for conspiracy to violate
mine safety and health standards in the aftermath of
the 2010 Upper Big Branch Mine disaster that resulted
in the death of 29 miners.” J.A. 2576. ABC posted links
to the article on Twitter and Facebook with
descriptions that repeated the “convicted felon”
language, and it used the same language in a
description of the article in a daily politics email
newsletter ABC distributed on July 24.
Verhovek had reported on or discussed
Blankenship’s criminal history on a few earlier
occasions. In a March 29, 2018 email to a colleague,
Verhovek similarly referred to Blankenship as a
“convicted felon.” J.A. 2577. However, in early May,
Verhovek had authored or co-authored three articles
for ABC which noted that Blankenship was convicted
of a misdemeanor. Also in early May, Verhovek had
received multiple emails from his ABC colleague
Meridith McGraw that provided updates on the West
Virginia primary campaign. The emails, which
App. 18
McGraw sent to an internal email distribution list,
made passing references to Blankenship’s conviction on
a misdemeanor offense. The distribution list received
dozens of similar political updates each day.
Blankenship’s campaign contacted McGraw to
request a correction almost immediately after ABC
published the July 23 article. In a text to Verhovek,
McGraw explained, “Don Blankenship is not a
convicted felon. He was found guilty of a misdemeanor
charge. . . . It’s confusing because he was sent to a
federal prison for his misdemeanor charge. We should
correct it!” J.A. 2736. Verhovek responded, “Meridith
can you send me exact language on this? Blankenship
was sent to federal prison but he was not convicted of
a felony?” J.A. 2735. Verhovek later apologized to
McGraw for the mistake, writing: “Sorry about
Blankenship, I thought I had it right on that or [had]
seen it in an earlier story, that’s my bad.” J.A. 2812.
6.
On appeal, Blankenship devotes almost no attention
to the remaining ten Defendants in the consolidated
action: News & Guts, Eli Lehrer, Mediaite, Tamar
Auber, Griffin Connolly, FiscalNote, HD Media,
NBCUniversal, CNBC, and 35th PAC. Like the others,
these Defendants published articles during the 2018
Senate campaign cycle that described Blankenship as
a “felon” or “convicted felon.”
7.
Lastly, Blankenship’s claims against the Boston
Globe focus on a single published article. The Globe
had an agreement with the Associated Press (“AP”)
App. 19
that allowed it to republish AP wire stories. On
May 21, 2018, the AP distributed a wire story written
by John Raby that discussed Blankenship’s possible
third-party candidacy in the general election. Raby’s
story referred to Blankenship as a “convicted ex-coal
baron” and explained that he “spent a year in federal
prison for violating safety regulations in a 2010 mine
explosion that killed 29 miners.” G.J.A. 356–59.
The Globe published a condensed version of the AP
story on May 22. While editing the original story, a
Globe copy editor named Daniel Coleman changed the
phrase “convicted ex-coal baron” to “convicted felon and
former coal baron” and removed the description of
Blankenship’s prison sentence. G.J.A. 346. The Globe
had previously published three articles which correctly
reported that Blankenship was convicted of a
misdemeanor but acquitted of felony charges. Those
articles are dated December 5, 2015, April 7, 2016, and
May 8, 2018.
After Blankenship filed this lawsuit, the Globe
published a correction clarifying that Blankenship’s
conviction was a misdemeanor.
B.
1.
In March 2019, Blankenship brought a diversity
action in the federal district court against more than
100 media organizations, political action committees,
and individuals. He alleged claims for defamation, false
light invasion of privacy, and civil conspiracy under
West Virginia law, arguing that Defendants’
descriptions of him as a felon were false, were made
App. 20
with actual malice, and caused him injury by damaging
his reputation and contributing to his defeat in the
2018 primary. Blankenship voluntarily dismissed
several original Defendants. In March 2020, the
district court dismissed his claims against many more
Defendants (including most individual journalists and
commentators) for lack of personal jurisdiction, and
dismissed his claims against NBCUniversal and CNBC
without prejudice for insufficient service of process.
However, the court denied the remaining Defendants’
Rule 12(b)(6) motions to dismiss. Shortly thereafter,
Blankenship refiled a separate action against
NBCUniversal and CNBC. The district court
adjudicated both cases in tandem.
The parties conducted extensive discovery, during
which Blankenship deposed numerous journalists and
other employees affiliated with the organizational
Defendants. Nearly all the journalists who made the
challenged statements submitted declarations or were
deposed, and while the precise contours of their
testimony varied, all who provided such testimony
asserted that they did not realize their descriptions of
Blankenship as a felon were inaccurate at the time.
After discovery concluded, the remaining fifteen
Defendants moved for summary judgment.
In three different opinions issued in February 2022,
the district court granted summary judgment to all
fifteen Defendants. As to Blankenship’s defamation
claims, it first concluded that the Defendants’
statements were materially false because they were
“based on a provably false assertion of fact,” and that
they constituted defamation per se because they falsely
App. 21
attributed a felony offense to Blankenship that “carries
significantly greater legal consequences than a
misdemeanor.” J.A. 5640 (cleaned up); see J.A. 5689,
5764. But after an extensive analysis of the record, it
determined that Blankenship failed to offer sufficient
evidence of actual malice to survive summary
judgment.
Because Blankenship’s false light invasion of
privacy and civil conspiracy claims also required him to
prove actual malice, the district court granted the
Defendants summary judgment on those claims as
well. Blankenship timely appealed the decisions, which
were consolidated in a single appeal.
2.
Blankenship filed a separate action against the
Boston Globe in West Virginia state court, alleging
defamation and false light invasion of privacy (but not
civil conspiracy). The Globe removed the case to the
district court based on diversity of citizenship.
Following discovery, the Globe moved for summary
judgment. As it did in the related cases, the district
court granted summary judgment to the Globe after
concluding Blankenship failed to show that the Globe
acted with actual malice when publishing the
inaccurate statement. Blankenship timely appealed.
II.
This Court reviews de novo a district court’s
decision to grant summary judgment. Ballengee v. CBS
Broad., Inc., 968 F.3d 344, 349 (4th Cir. 2020). At the
summary judgment stage, we view all facts and make
all reasonable inferences in favor of the nonmoving
App. 22
party. Id. “Summary judgment is warranted ‘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.’” Id. (quoting Fed. R. Civ.
P. 56(a)). “Facts are material when they might affect
the outcome of the case, and a genuine issue exists
when the evidence would allow a reasonable jury to
return a verdict for the nonmoving party.” News &
Observer Publ’g Co. v. Raleigh-Durham Airport Auth.,
597 F.3d 570, 576 (4th Cir. 2010) (internal quotation
marks omitted). A party is entitled to summary
judgment when “the nonmoving party has failed to
make a sufficient showing on an essential element of
[his] case with respect to which [he] has the burden of
proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986).
III.
A.
We start with Blankenship’s defamation claims,
which, like his other claims, rely on West Virginia law.
To prevail in a defamation action in West Virginia,4 a
public-figure plaintiff like Blankenship must establish
that the statements (1) contain a provably false
assertion of fact and (2) were published with actual
malice. Pritt v. Republican Nat’l Comm., 557 S.E.2d
4
Technically, Blankenship’s claims involving written statements
constitute libel claims, but the relevant elements for both actions
are identical. See Greenfield v. Schmidt Baking Co., 485 S.E.2d
391, 393–94 (W. Va. 1997). For simplicity, we follow the parties’
approach and use the term “defamation” to refer to all claims.
App. 23
853, 861–62 (W. Va. 2001).5 A plaintiff must prove
actual malice by clear and convincing evidence. Id. at
862.
At the outset, Defendants argue that we can affirm
the district court’s decisions on the alternative ground
that none of the challenged statements were actionably
false. The district court, of course, reached the opposite
conclusion. But Defendants contend that a “felony” is
often understood to refer colloquially to serious crimes,
and that there is no question Blankenship’s conviction
and sentence were serious. See Masson v. New Yorker
Mag., Inc., 501 U.S. 496, 516–17 (1991) (explaining
that falsity turns on “the substance, the gist, the sting”
of the words the defendant used). Here, we will simply
assume that Defendants’ statements satisfy the falsity
element because we can instead resolve Blankenship’s
claims based on the actual malice element.
West Virginia’s actual malice standard comports
with First Amendment limitations on state defamation
law, as articulated by the Supreme Court in N.Y. Times
Co. v. Sullivan, 376 U.S. 254 (1964), and its progeny.
See Havalunch, Inc. v. Mazza, 294 S.E.2d 70, 73
(W. Va. 1983). To prove actual malice, Blankenship
must show that Defendants made each statement “with
5
In defamation cases involving plaintiffs who are candidates for
public office, West Virginia law appears to additionally require
that the defendant intended to injure the plaintiff by publishing
the statement. See Pritt, 557 S.E.2d at 861. Defendants argue that
Blankenship also failed to present sufficient evidence of an intent
to injure. Because we conclude that Blankenship failed to create a
jury question that any Defendant acted with actual malice, we do
not need to address the intent-to-injure element.
App. 24
knowledge that it was false or with reckless disregard
of whether it was false or not.” N.Y. Times, 376 U.S. at
279–80. Reckless disregard exists where “the defendant
in fact entertained serious doubts as to the truth of its
publication” but nonetheless published it. St. Amant v.
Thompson, 390 U.S. 727, 731 (1968). In other words,
the defendant must have had at least “a high degree of
awareness of . . . probable falsity.” Harte-Hanks
Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 692
(1989).
On summary judgment, we must apply the clear
and convincing evidence standard when determining
whether Blankenship has created a genuine issue of
actual malice. To this end, we ask “whether the
evidence presented is such that a reasonable jury
might find that actual malice ha[s] been shown with
convincing clarity.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 257 (1986). Whether the evidence in the
record is sufficient to permit such a finding is a
question of law. Harte-Hanks, 491 U.S. at 685. We have
explained that creating a jury question on actual
malice “is no easy task.” Carr v. Forbes, Inc., 259 F.3d
273, 282 (4th Cir. 2001). To survive summary
judgment, Blankenship must offer “concrete” and
“affirmative evidence” of actual malice, Liberty Lobby,
477 U.S. at 256–57, and that evidence must produce an
“abiding conviction” that actual malice is “highly
probable,” Cannon v. Peck, 36 F.4th 547, 566 (4th Cir.
2022). On appeal, we independently review the entire
record to determine whether Blankenship has made
this showing. Harte-Hanks, 491 U.S. at 688; Carr, 259
F.3d at 283.
App. 25
B.
Blankenship argues that the district court made a
few recurring errors in its summary judgment
decisions. In his view, the court erred by making
improper credibility determinations, drawing
inferences in favor of Defendants rather than
Blankenship, and failing to consider the entire record
when evaluating his defamation claims. However, after
independently reviewing the full record, we conclude
the district court correctly held that Blankenship has
not presented sufficient evidence that any Defendant
acted with actual malice.
1.
On appeal, Blankenship devotes the most attention
to his defamation claims against Fox News, so we begin
there. As an initial matter, Blankenship no longer
challenges Andrew Napolitano’s statement that
Blankenship went to jail for manslaughter. Instead,
Blankenship focuses on the inaccurate on-air
statements made by Neil Cavuto and four other Fox
News commentators in the days leading up to the West
Virginia primary. We conclude that the record evidence
would not permit a reasonable jury to find, by clear and
convincing evidence, that these commentators or any
other Fox News employees made these statements with
actual malice.
a.
Cavuto referred to Blankenship as a “convicted
felon” once, during the May 7, 2018 broadcast of his
show Cavuto Coast to Coast. In a deposition, Cavuto
testified that he did not realize this statement was
App. 26
inaccurate at the time, explaining: “It was incorrect,
but it was inadvertent. I did not know there was a
distinction between going to jail over a felony or going
to jail over a misdemeanor, just that he went to jail for
a year.” J.A. 3556. At the summary judgment stage, we
do not credit Cavuto’s self-serving testimony about his
state of mind over contrary evidence. See Liberty
Lobby, 477 U.S. at 255. At the same time, though,
Blankenship cannot avoid summary judgment “by
merely asserting that the jury might, and legally could,
disbelieve the defendant’s denial of . . . legal malice.”
Id. at 256. Rather, the question is whether
Blankenship has offered enough concrete evidence to
permit a jury to find, by clear and convincing evidence,
that Cavuto acted with actual malice. He has not.
Blankenship highlights two parts of the record that
he claims create a genuine dispute of fact as to actual
malice. The first is the April 25, 2018 episode of Your
World with Neil Cavuto, where Peter Doocy, in
Cavuto’s presence, noted that Blankenship “recently
served a year in jail on a misdemeanor conviction tied
to his role in a mine collapse that killed 29 people.”
J.A. 3861–62. According to Blankenship, this shows
Cavuto knew it was false to use the term “convicted
felon” roughly two weeks later. The second piece of
evidence is the briefing packet Cavuto received on May
2, 2018, which mentioned Blankenship’s “2015
conviction on a misdemeanor charge related to the
Upper Big Branch Mine explosion that killed 29
miners.” J.A. 3867.
Although a jury could infer that Cavuto processed
Doocy’s remark and committed the detail to memory,
App. 27
that inference is somewhat tenuous. Doocy’s reference to
the misdemeanor conviction was a single, brief comment
during an hourlong show that covered several different
political topics. From that one comment, it would be a
stretch to infer that Cavuto, two weeks later, “in fact
entertained serious doubts” that Blankenship was a
felon. St. Amant, 390 U.S. at 731. The note on
Blankenship’s misdemeanor conviction in the May 2
briefing packet—a single, passing reference in ten pages
of material on various 2018 primary campaigns—is even
more tenuous evidence of Cavuto’s knowledge on May 7.
Cavuto testified that he was sure he would have read
the packet, but that does not necessarily support an
inference that he remembered this one specific detail
when speaking on air five days later.
As possible evidence of Cavuto’s state of mind, these
facts are much less convincing than those in cases
where courts have found a genuine issue of actual
malice. See Zerangue v. TSP Newspapers, Inc., 814
F.2d 1066, 1071–72 (5th Cir. 1987) (defendant
newspaper printed a false story a second time, even
though the editors responsible for the second story
arguably knew the newspaper had retracted the first
one); Golden Bear Distrib. Sys. of Tex., Inc. v. Chase
Revel, Inc., 708 F.2d 944, 950 (5th Cir. 1983) (author of
allegedly defamatory story had contemporaneous notes
that “clearly indicate[d] her awareness” that her story
was false).6 Doocy’s remark and the briefing packet
6
Blankenship also cites to Palin v. N.Y. Times Co., 940 F.3d 804 (2d
Cir. 2019). But that case was decided at the motion-to-dismiss stage
and is inapposite here. See id. at 816 (holding only that the plaintiff
plausibly alleged that the defendant acted with actual malice).
App. 28
might well permit a finding that a reasonable person in
Cavuto’s position should have known Blankenship was
convicted of a misdemeanor, but actual malice requires
“much more” than mere negligence. Hatfill v. N.Y.
Times Co., 532 F.3d 312, 325 (4th Cir. 2008).
And even if a reasonable jury can infer that Cavuto
heard and remembered Doocy’s “misdemeanor”
comment, it still could not find with convincing clarity
that Cavuto had serious doubts about the truth of his
May 7 statement. Cavuto knew Blankenship was
charged with and convicted of a federal conspiracy
offense in the wake of a mine disaster that killed
twenty-nine people, and that he was sentenced to one
year in federal prison—exactly one day less than a
felony sentence—and fined a quarter of a million
dollars. Blankenship himself admits this was a highly
unusual sentence for a misdemeanor offense; he notes
that he was the only inmate at his prison who was not
serving a sentence for a felony conviction. In light of
these facts, no reasonable jury could find by clear and
convincing evidence that Cavuto, who is not a lawyer,
understood it was inaccurate to describe Blankenship
as a “convicted felon.” In other words, Blankenship has
not presented sufficient evidence disputing Cavuto’s
belief that it was appropriate to colloquially describe
someone who served a one-year prison sentence as a
“convicted felon.”7
7
At first glance, this discussion might seem to overlap with the
falsity element, but it is a distinct issue. Even assuming that the
“felon” description is not substantially true and therefore satisfies
the falsity element, the fact that some might use the word “felon”
to refer colloquially to any serious crime informs our actual malice
App. 29
Cavuto’s on-air interview with Blankenship on
May 22, 2018, reinforces this conclusion. When
Blankenship emphasized that he had never been
convicted of a felony, Cavuto asked, “So what are you
if you’ve served time in jail?” J.A. 3552, 5671. Cavuto
then asked the same question to Napolitano: “So
serving a year in jail doesn’t make you a convicted
felon?” J.A. 3554–55. These exchanges, which took
place just two weeks after Cavuto’s May 7 statement,
indicate that Cavuto had not understood the inaccuracy
of his remark. See Zerangue, 814 F.2d at 1071 (“The
fact that [an editor] had to ask [the plaintiff] what was
inaccurate about the story when [the plaintiff] called to
protest tends to indicate that [the editor] did not know
of the inaccuracy.”). This evidence underscores that
Cavuto was confused about Blankenship’s criminal
status because of the one-year prison sentence, and it
precludes a finding by clear and convincing evidence
that Cavuto seriously doubted the truth of his May 7
statement.
b.
Less analysis is required for the statements made
by the four other Fox News commentators: John
Layfield, Bradley Blakeman, Stephanie Hamill, and
Elizabeth MacDonald. Blankenship points to no direct
analysis. Specifically, this linguistic issue helps explain why
certain journalists might have believed it was acceptable to refer
to Blankenship as a felon even if they had heard that his
conviction was technically classified as a misdemeanor. Indeed, the
record suggests that even Blankenship was confused about how to
refer to his criminal status; in the May 22 interview with Cavuto,
he repeatedly called himself a “misdemeanor.” J.A. 5671.
App. 30
evidence of knowledge that rebuts the commentators’
testimony that they believed their statements were
accurate at the time. He cannot avoid summary
judgment simply by asserting that the jury could
disbelieve their testimony. Liberty Lobby, 477 U.S. at
256.
In an attempt to create a jury question,
Blankenship claims the record contains sufficient
circumstantial evidence of actual malice. “Although
courts must be careful not to place too much reliance on
such factors, a plaintiff is entitled to prove the
defendant’s state of mind through circumstantial
evidence[.]” Harte-Hanks, 491 U.S. at 668. Here,
Blankenship focuses on (1) the emails from Rupert
Murdoch and the McConnell aide that requested
negative coverage of his campaign, and (2) Fox News’s
initial failure to retract Napolitano’s misstatement.
From the two emails, it is safe to conclude that
Murdoch and McConnell wished to damage
Blankenship’s Senate candidacy. But “while motive [or
animus] can be relevant to the actual malice inquiry, it
is not dispositive standing alone.” Cannon, 36 F.4th at
568 (cleaned up); see Hinerman v. Daily Gazette Co.,
423 S.E.2d 560, 573 (W. Va. 1992). As we have
explained, “many publications set out to portray a
particular viewpoint or even to advance a partisan
cause. Defamation judgments do not exist to police
their objectivity.” Reuber v. Food Chem. News, Inc., 925
F.2d 703, 716 (4th Cir. 1991) (en banc).
Here, the two emails do not establish actual malice
because Blankenship fails to show a sufficient nexus
between those communications and the Fox News
App. 31
commentators’ false statements. Murdoch’s May 6
email to the two Fox News senior executives read:
“Both Trump and McConnell appealing for help to beat
unelectable former mine owner who served time.
Anything during day helpful but Sean and Laura
dumping on him hard might save the day.” J.A. 4052.
This does not suggest that Murdoch instructed anchors
to falsely call Blankenship a felon or even implied that
they should. The same is true of the McConnell aide’s
May 3 email to Martha MacCallum, which made a tacit
request for negative coverage of Blankenship but did
not raise the issue of his criminal history. Karl Rove
and Tammy Bruce’s comments on MacCallum’s show
the following day were harshly critical of Blankenship,
but they did not mischaracterize his conviction—
Blankenship does not allege that Rove or Bruce
defamed him. To be sure, the various Fox News
statements calling him a felon all occurred shortly after
these two emails were sent, but that temporal
relationship, without more, is not nearly enough. In
defamation cases, “the state of mind required for actual
malice [must] be brought home to the persons in the
. . . organization having responsibility for the
publication,” N.Y. Times, 367 U.S. at 287, and
Blankenship offers no concrete evidence connecting the
emails to the challenged statements.
Lastly, Blankenship emphasizes that Fox News
producers refused to allow Napolitano to appear on air
to correct his misstatement. We have explained that a
publisher’s failure to retract a statement upon request
generally “is not probative of [the speaker’s] state of
mind at the time of publication.” Fairfax v. CBS Corp.,
2 F.4th 286, 295 (4th Cir. 2021). Even if the network’s
App. 32
reticent response to Napolitano’s requests is relevant,
it is far from clear and convincing evidence that Cavuto
and the four other commentators later made their
statements with actual malice. Put simply,
Blankenship offers no non-speculative reason to believe
there was any connection between the producers’
actions and the allegedly defamatory statements.
For these reasons, we conclude that Blankenship’s
failure to provide sufficient evidence of actual malice
defeats his defamation claims against Fox News.
2.
Next, we proceed to the defamation claims against
MSNBC, which focus on Chris Hayes’s two on-air
statements describing Blankenship as a “convicted
felon.”8 In a deposition, Hayes testified that he believed
his comments were accurate when he made them,
asserting: “I knew [Blankenship] had done a year in
8
Blankenship argues in his reply brief that Joy Reid also acted
with actual malice when she described him as a convicted felon
during a May 4, 2018 telecast. But he failed to make that
argument in his opening brief, and “an issue first argued in a reply
brief is not properly before a court of appeals.” Cavallo v. Star
Enter., 100 F.3d 1150, 1152 n.2 (4th Cir. 1996). In any event, there
is no evidence in the record disputing Reid’s testimony that, at the
time she made the statement, she believed Blankenship had been
convicted of a felony.
In the district court, Blankenship also alleged that Hayes’s
April 16, 2018 tweet calling him a “felonious coal baron” was
defamatory. The district court held that the tweet “is insufficient
to establish MSNBC’s liability inasmuch as it was tweeted from
Mr. Hayes’ personal account.” J.A. 5725 n.40. Blankenship does
not contest that ruling on appeal, so we do not consider it further.
App. 33
federal prison, and I just thought that meant he had
been convicted of a felony.” J.A. 515.
In an attempt to create a genuine dispute as to
Hayes’s knowledge, Blankenship highlights two events.
The first is the November 29, 2017 broadcast of All In,
during which MSNBC displayed the titles of two news
articles about Blankenship as on-screen graphics. The
body of each article accurately identified Blankenship’s
conviction as a misdemeanor, but that detail was not
shown on screen or discussed during the November 29
show. Even viewing the facts in the light most
favorable to Blankenship, we cannot infer that Hayes
read the two articles in their entirety, or that another
staffer read them and relayed the information about
Blankenship’s conviction to Hayes. While Hayes noted
that MSNBC had relied on the articles as sources, that
does not mean he engaged with the specific references
to Blankenship’s misdemeanor conviction, particularly
because the record does not indicate that Hayes
discussed that detail during the November 29
broadcast.
The second event is the December 2015 email
exchange between Hayes and All In staff members, in
which Hayes wrote that Blankenship “only got nailed
on the misdemeanor” and “[p]robably [would not spend]
a day in jail.” J.A. 845. The email certainly shows that
Hayes knew about the misdemeanor conviction in late
2015, but we are skeptical that this constitutes clear
and convincing proof of his state of mind two and a half
years later. Crucially, Hayes’s 2015 email came before
Blankenship was sentenced to and served a year in
prison (and therefore before Hayes learned about the
App. 34
sentence)—a fact that very well could lead a nonlawyer like Hayes to believe it was accurate to refer to
Blankenship as a felon years later.
In the end, Hayes’s communications around the
time of his 2018 statements cast too much doubt on the
notion that he consciously misrepresented
Blankenship’s criminal status. During the off-air
conversation with Brian Montopoli hours before the
April 23 broadcast, Hayes referred to Blankenship as
a “convicted felon,” and Montopoli did not correct him.
This strongly suggests that by April 2018, Hayes had
either forgotten about the misdemeanor classification
or did not understand it would be incorrect to describe
Blankenship as a felon. Hayes’s response to the
viewer’s May 10 email that pointed out the inaccuracy
provides further contemporaneous evidence that he
simply made a mistake. See J.A. 847 (“Caught that
after the show, but you’re r[i]ght.”).9
Nor does Blankenship present any affirmative
evidence that Denis Horgan (All In’s Executive
Producer) or any other staff member acted with a
reckless disregard for the truth. The record shows that
some of the challenged MSNBC statements were
scripted. But the state of mind required for actual
9
Blankenship also contends that the April 2016 email from a staff
member to Hayes stating that “our old friend Don Blankenship is
going to the cooler for a year” helps his case, but it is hard to see
how that supports an inference that Hayes later remembered the
conviction was a misdemeanor rather than a felony. If anything,
this email helps explain Hayes’s later belief that it was accurate to
describe Blankenship as a felon in light of the one-year prison
sentence.
App. 35
malice must be “brought home” to the persons
responsible for publication, N.Y. Times, 367 U.S. at
287, and the record does not identify which staff
members actually inserted the “felon” language into the
scripts. In their deposition testimony, neither Horgan
nor Reid could recall who wrote the scripted language,
but Reid testified that she “did not work with Denis
Horgan on the scripts for those shows.” J.A. 862–83.
Blankenship argues that circumstantial evidence of
actual malice gets this issue to the jury. We are
unpersuaded. First, Blankenship asks us to find a
genuine issue of actual malice because Hayes and the
All In team exhibited animus towards him. The
December 2015 emails from staff members to
Hayes—sent after Hayes wrote that Blankenship
“[p]robably [would not spend] a day in jail” and before
Blankenship’s sentencing—expressed frustration with
the conviction. J.A. 845 (“A slap on the wrist for a dude
who killed 29 people . . . .”); id. (“Very disappointing . . .
he’s killed more people than most terrorists ever do[.]”).
As with Fox News, however, this evidence of possible
animus carries little weight in the actual malice
analysis. See Cannon, 36 F.4th at 568. That is
particularly true here, where the hostile comments
came two years before the allegedly defamatory
statements.
Second, Blankenship makes much of Hayes and
Reid’s failure to issue corrections after learning their
statements were inaccurate, but the lack of a retraction
has little to no relevance in the actual malice inquiry.
See Fairfax, 2 F.4th at 295; see also Pippen v.
NBCUniversal Media, LLC, 734 F.3d 610, 614 (7th Cir.
App. 36
2013) (“[A]ctual malice cannot be inferred from a
publisher’s failure to retract a statement once it learns
it to be false.”).
Third, and finally, Blankenship suggests that
MSNBC’s conduct violated NBCUniversal’s News
Group Policies and Guidelines, which state that
MSNBC “stands for accuracy,” J.A. 5467, and that
corrections “should be addressed as soon as reasonably
possible,” J.A. 5480. But “actual malice cannot be
established merely by showing a departure from
accepted journalistic or professional practices,” Church
of Scientology International v. Daniels, 992 F.2d 1329,
1334 (4th Cir. 1993), and even an “extreme departure”
from such standards is inadequate. Harte-Hanks, 491
U.S. at 665. A violation of journalistic standards may
be relevant when combined with other proof of actual
malice, but even if we assume that MSNBC violated its
policies here, the evidence falls short. Because the
policy Blankenship cites focuses on corrections, this
argument essentially restates his failure-to-correct
claim. Once again, a publisher’s failure to retract a
statement has very little probative value, if any.
Based on the summary judgment record, a
reasonable jury could not find that Hayes or any other
MSNBC employee made the relevant statements with
actual malice.
3.
Turning to CNN, Blankenship alleges that three
individuals affiliated with the network made
defamatory statements during live broadcasts: Kevin
McLaughlin, S.E. Cupp, and Joe Lockhart. Here, too,
App. 37
the record does not support a finding by clear and
convincing evidence that any of the three made the
statements with actual malice.
To start, McLaughlin described Blankenship as a
“convicted felon” during an unscripted portion of CNN
Newsroom on April 29, 2018. In a deposition,
McLaughlin explained that he believed the “convicted
felon” description was accurate at the time—his
“understanding was, given what happened in the
sentence, that it was obviously a very serious crime.”
J.A. 1402. McLaughlin also stated that he had “Googled
it” prior to his appearance on CNN and from that
search “was led to believe [Blankenship] was a
convicted felon.” J.A. 1403.
To be sure, McLaughlin made the “convicted felon”
comment only a few minutes after Dana Bash had
remarked that Blankenship “served a year in prison”
but “reminds us [his conviction] was just a
misdemeanor.” J.A. 1383–86. Bash’s reference to the
misdemeanor conviction is the only evidence that
McLaughlin knew it was inaccurate to describe
Blankenship as a convicted felon. But, if anything, the
fact that McLaughlin called Blankenship a felon so
soon after Bash’s comment indicates that McLaughlin,
a non-lawyer, simply did not understand the legal
distinction between a felony and a misdemeanor in this
case. Without more, we cannot conclude that a
reasonable jury could find with convincing clarity that
McLaughlin’s statement was a “knowing, calculated
App. 38
falsehood.”10 Ryan v. Brooks, 634 F.2d 726, 733 (4th
Cir. 1980).
Moving on, there is no evidence that Lockhart or
Cupp knew they were likely making false statements
when they called Blankenship a felon. Both testified
that they believed their statements were correct when
they made them, and Blankenship presents no
evidence to rebut that testimony. Unfiltered played a
short clip from the West Virginia primary debate
during the May 2 telecast, and, at one point in that
debate, Blankenship stated he “beat all three of the
felonies” and was “sent . . . to prison for a
misdemeanor.” Opening Br. 51. But the transcript of
the May 2 Unfiltered telecast does not include that
portion of the debate, and no facts dispute Cupp’s
assertion that she did not recall seeing it. Blankenship
asks us to infer that Cupp saw that part of the debate,
but without any affirmative evidence, that calls for
speculation and goes beyond the reasonable inferences
we make in his favor at the summary judgment stage.
Blankenship once again tries to shore up his case
with circumstantial evidence. He contends that CNN
demonstrated animus, violated its internal standards,
and failed to investigate his criminal history before
broadcasting the statements in question. These facts do
not create a genuine issue of actual malice. When he
called Blankenship a felon, Lockhart also expressed his
10
For her part, Bash’s unrebutted testimony is that McLaughlin’s
on-air comment did not “register[] with [her] at the time.”
J.A. 1396–97. Regardless, Bash’s failure to correct the record does
not establish that she acted with actual malice.
App. 39
view that Blankenship was “crazy” and a “racist,” likely
referring to comments he had made about Secretary
Chao’s Chinese heritage. J.A. 1428. But, again, that
cannot substitute for the complete lack of direct
evidence that Lockhart knew his statement was false.
Next, the internal CNN standards Blankenship cites
express a general commitment to “accurate, fair, and
responsible” reporting and explain what qualifies as
defamation. J.A. 1690–91. In essence, Blankenship
argues that the statements violated CNN policies
because they were inaccurate. But this is not helpful to
the actual malice inquiry. See Bose Corp. v. Consumers
Union of U.S., Inc., 466 U.S. 485, 511 (1984) (“[T]here
is a significant difference between proof of actual
malice and mere proof of falsity.”).
Blankenship’s failure-to-investigate argument also
falters. The “failure to investigate before publishing,
even when a reasonably prudent person would have
done so, is not sufficient to establish reckless
disregard,” Harte-Hanks, 491 U.S. at 688; such inaction
rises to the level of actual malice only if it amounts to
a “purposeful avoidance of the truth,” id. at 692. This
is not such a case. Blankenship’s prison sentence
placed him as close to felony status as possible; for nonlawyers like McLaughlin, Cupp, and Lockhart,
describing Blankenship as a felon was not “inherently
improbable,” and there were not “obvious reasons to
doubt the veracity” of such a statement. St. Amant, 390
U.S. at 732.
For these reasons, the cumulative record, viewed in
the light most favorable to Blankenship, does not
App. 40
permit a reasonable jury to find that anyone at CNN
acted with actual malice.
4.
Blankenship’s defamation claim against the
Washington Post focuses on two published statements:
a July 25, 2018 article authored by Jenna Johnson and
Josh Dawsey that described him as a “felon,” and an
August 9, 2018 blog post by Amber Phillips that
referred to him as “one of three convicted felons”
running for office in 2018. We conclude that
Blankenship has failed to establish a genuine issue
that either was made with actual malice.
Starting with the July 25 article, nothing suggests
that Dawsey or Johnson had serious doubts about the
accuracy of the “felon” statement. The uncontested
record shows that Dawsey neither wrote nor reviewed
the relevant part of the article, and even if he had, no
evidence suggests that Dawsey knew the statement
was incorrect. Nor do any facts rebut Johnson’s
declaration that she did not realize the term “felon”
was inaccurate at the time of publication, that she used
the word “because [she] understood [Blankenship] had
been convicted of a serious crime and sent to prison,”
and that she “recall[ed] having seen or heard him
referred to as a felon.” J.A. 2057.
Blankenship also cannot establish a genuine issue
of actual malice as to Phillips’s August 9 blog post. In
her declaration, Phillips, like all the other journalists
thus far, stated she believed her description of
Blankenship as a “convicted felon” was correct at the
time. She noted that she “knew Mr. Blankenship had
App. 41
gone to prison for a serious crime,” and that her
“understanding [was] that the word ‘felon’ could be
used to refer to someone who has been convicted of a
crime.” J.A. 2079.
In response, Blankenship points out that (1) one of
Phillips’s earlier blog posts, published on May 1, 2018,
referred to Blankenship’s conviction “on a
misdemeanor for conspiring to violate mine safety
laws” (and his one-year prison sentence), J.A. 2298, and
(2) Phillips received three mass-distributed emails in
early May 2018 that briefly mentioned the same. But
these facts do not make it “highly probable” that
Phillips demonstrated a reckless disregard for the
truth when she wrote the August 9 story. Cannon, 36
F.4th at 573. For starters, we doubt it is reasonable to
infer that Phillips even read the three mass emails in
their entirety, let alone that she remembered this
particular detail while writing the August 9 blog post.
And it seems tenuous to infer from Phillips’s May 1
story that she remembered the details of Blankenship’s
conviction on August 9, particularly because she wrote
more than 100 stories in the intervening three months.
But even if we drew that inference, a jury could not
find with convincing clarity that Phillips was not
simply confused about the meaning of the term “felon.”
As with the prior Defendants, circumstantial
evidence does not create a genuine issue of actual
malice here. Blankenship focuses solely on the
Washington’s Post’s failure to fact-check the articles
before publication. The Post’s Policies and Standards
provide that “reporters have primary responsibility for
reporting, writing, and fact-checking their stories,” and
App. 42
that stories “are subject to review by one or more
editors.” J.A. 2274. However, as previously discussed,
inadequate fact-checking cannot by itself establish that
Johnson or Dawsey published their article with actual
malice. See Daniels, 992 F.2d at 1334. Nor does it get
Blankenship’s challenge to Phillip’s story over the
summary judgment hurdle. See Dongguk Univ. v. Yale
Univ., 734 F.3d 113, 126 (2d Cir. 2013) (“Even the
failure to review one’s own files is inadequate to
demonstrate malice by the party responsible for
publishing a statement.”).
Thus, we conclude there is legally insufficient
evidence that the Washington Post published these
statements with actual malice.
5.
Blankenship’s defamation claim against ABC
centers on the July 23, 2018 article by John Verhovek.
In the article, Verhovek referred to Blankenship as
“the former coal baron and convicted felon” and stated
he “was convicted in 2015 for conspiracy to violate mine
safety and health standards in the aftermath of the
2010 Upper Big Branch Mine disaster that resulted in
the death of 29 miners.” J.A. 2633.
Like the authors of the other Defendants’
statements, Verhovek asserted that he did not realize
the term “convicted felon” was false when he placed it
in the article. He explained that he “had always
understood and used the term ‘felony’ to mean ‘serious
crime,’ and the term ‘felon’ to mean ‘someone who
committed a serious crime,’” and that he therefore used
the term “convicted felon” to “refer to someone who
App. 43
served significant time in prison after being convicted
of a crime.” J.A. 2576. Verhovek further stated that he
was aware Blankenship “had spent a significant
amount of time in federal prison” but “did not know the
details about his criminal case” or that “he was
acquitted of some charges.” J.A. 2573.
While we cannot credit Verhovek’s testimony
regarding his state of mind over contrary record facts,
contemporaneous evidence indicates that he did not
realize the “convicted felon” language was false. Most
relevant is Verhovek’s response when Meridith
McGraw contacted him about the error in the article.
After McGraw explained that Blankenship was
convicted of a misdemeanor, Verhovek responded,
“Meridith can you send me exact language on this?
Blankenship was sent to federal prison but he was not
convicted of a felony?” J.A. 2735. In a later text to
McGraw, Verhovek again admitted his confusion,
writing: “Sorry about Blankenship, I thought I had it
right on that or [had] seen it in an earlier story, that’s
my bad.” J.A. 2812. These exchanges strongly suggest
that Verhovek’s error was a mistake based on his
confusion about how to refer to a person who served a
one-year sentence in federal prison. Further, the record
shows that Verhovek had previously described
Blankenship as a “convicted felon” in a March 2018
email to an editor, and that the editor did not flag the
description as inaccurate. J.A. 2577.
Blankenship contends there is a genuine dispute as
to Verhovek’s knowledge because (1) he had authored
or co-authored three earlier articles for ABC that
accurately called the conviction a misdemeanor; and
App. 44
(2) he had received multiple distribution-list emails
from McGraw in May 2018 that did the same. But this
evidence, viewed in the context of the entire record,
does not allow a finding by clear and convincing
evidence that Verhovek “entertained serious doubts as
to the truth” of the “convicted felon” language in his
July 23 article. St. Amant, 390 U.S. at 731. In light of
the whole record—particularly Verhovek’s
contemporaneous messages to McGraw—Blankenship
cannot establish that the language in the July 23
article was anything more than a careless mistake,
caused by Verhovek’s confusion about the appropriate
use of the word “felon.”
Undeterred, Blankenship argues that Verhovek
should have consulted his prior reporting or otherwise
fact-checked the July 23 article before publishing it.
But, as was the case for Phillips’s Washington Post
story, Verhovek’s or another editor’s failure to factcheck is not enough to manufacture a genuine issue of
actual malice here.
Finally, it is significant that ABC promptly
corrected the article after Blankenship’s campaign
contacted McGraw to request a correction. While the
failure to issue a correction cannot establish actual
malice, the “readiness to retract tends to negate ‘actual
malice,’” Zerangue, 814 F.2d at 1071, and Verhovek
worked with editors to correct the article and social
media posts within hours of their publication.
In sum, the district court correctly concluded that
the facts related to Verhovek’s July 23 article “fail to
tip the scales towards clear and convincing evidence of
App. 45
actual malice when viewed in connection with the
entirety of the evidentiary record.” J.A. 5714.
6.
The district court also correctly held that there is
insufficient proof of actual malice with respect to the
ten other Defendants in the consolidated appeal: News
& Guts, Eli Lehrer, Mediaite, Tamar Auber, Griffin
Connolly,11 FiscalNote, HD Media, NBCUniversal,
CNBC, and 35th PAC.
Nothing in the record suggests that any of these
Defendants had the required state of mind when they
published statements describing Blankenship as a
felon. The authors of these statements all asserted that
they were unaware the term “felon” was incorrect at
the time of publication. While at least two Defendants,
HD Media and NBC, had previously reported that
Blankenship’s conviction was a misdemeanor, there is
no evidence that the authors of the allegedly
defamatory statements had seen those earlier
publications or any other materials that correctly
described Blankenship’s conviction. In fact, several said
they recalled seeing references to Blankenship as a
felon in other stories—which is unsurprising, given
that Blankenship initially identified more than 100
publications that included such references. See Daniels,
992 F.2d at 1334 (concluding it was “impossible” to find
11
The district court granted summary judgment to Griffin
Connolly based on the uncontested fact that he was not involved
in publishing the statement Blankenship had attributed to him.
Blankenship does not contest that decision on appeal and therefore
forfeits the issue.
App. 46
actual malice “[g]iven the volume of published
commentary” consistent with the author’s statements).
Nor is there enough circumstantial evidence of
actual malice as to these Defendants. Blankenship
repeats his refrain that these Defendants’ animus,
violation of journalistic standards, and failure to
correct the statements produce a genuine issue of
actual malice. But his arguments are mostly
speculative and do not come close to the quantum of
evidence needed to create a jury question.
7.
Finally, we reach Blankenship’s defamation claim
against the Boston Globe. As we noted above,
Blankenship takes issue with a single article, which
the Globe repurposed from an AP wire story and
published on May 22, 2018. The original AP story
described Blankenship as a “convicted ex-coal baron”
who had “spent a year in federal prison for violating
safety regulations in a 2010 mine explosion that killed
29 miners.” G.J.A. 356–59. The Globe copy editor who
condensed the story, Daniel Coleman, changed the
description to “convicted felon and former coal baron”
and removed the reference to Blankenship’s prison
sentence. G.J.A. 346. Here, too, we hold that the record
would not permit a jury to find actual malice by clear
and convincing evidence.
There is no evidence that Coleman knew the
“convicted felon” language was likely false.
Blankenship did not depose Coleman during discovery.
David Dahl, the Globe’s Deputy Managing Editor for
Print and Operations, was deposed as the Globe’s
App. 47
Rule 30(b)(6) corporate representative. Dahl testified
that “what happened here was an honest mistake by an
editor looking at a story about a very serious incident
and editing an incorrect characterization” into the
article, and further stated that the Globe “took the
mistake seriously and . . . regret[ted] making the
error.” G.J.A. 416. This explanation makes sense; in
the condensed article, Coleman substituted the word
“felon” for the longer description of Blankenship’s
prison sentence, which suggests he believed that an
offense punishable by one year in prison could be
described as a felony.
Nothing in the record indicates that Coleman’s edit
was anything more than a simple accident.
Blankenship calls our attention to three earlier Globe
articles that accurately reported on Blankenship’s
misdemeanor conviction. But there is no reason to
believe that Coleman—or any other Globe employee
involved in publishing the May 22 article—was aware
of those earlier stories.
Without any evidence of Coleman’s subjective
knowledge, Blankenship returns to a well-trodden
path, arguing that the district court’s actual malice
analysis did not account for Coleman’s failure to factcheck before publishing the article. Standing alone,
though, an editor’s “failure to investigate before
publishing . . . is not sufficient to establish reckless
disregard.” Harte-Hanks, 491 U.S. at 688. That
includes the failure to review news stories in the
newspaper’s own files. See N.Y. Times, 376 U.S. at 287.
Blankenship claims that Coleman also violated
journalistic standards, but those standards relate to
App. 48
fact-checking, so this contention merely duplicates his
failure-to-investigate argument.
A copy editor might well be negligent for publishing
a story without confirming the accuracy of certain
information in it, but actual malice demands subjective
knowledge of likely falsity. On these facts, a reasonable
jury could not conclude that Coleman acted with such
a state of mind.12
***
Like the district court in its well-reasoned analysis,
we reach these conclusions without crediting
Defendants’ denials of actual malice over contrary
facts, discounting certain evidence, or drawing
inferences in Defendants’ favor. Rather, the cumulative
record simply does not permit a finding, by clear and
convincing evidence, that any Defendant “in fact
entertained serious doubts as to the truth” of the
statements it published. St. Amant, 390 U.S. at 731.
Some of the statements may have been the product of
carelessness and substandard journalistic methods.
But at the end of the day, the record does not contain
evidence that the commentators and journalists
responsible for the statements were anything more
12
Blankenship also complains that the Boston Globe’s later
correction to the May 22 article was defamatory because it stated
he “was convicted of a misdemeanor for his role in connection with
a deadly 2010 mine disaster.” G.J.A. 314 (emphasis added).
However, in the district court, he did not bring a defamation claim
based on the language in the correction. In any event, it is far from
clear that this description of Blankenship’s conviction is even false,
and there certainly is no evidence it was published with actual
malice.
App. 49
than confused about how to describe a person who
served a year in prison for a federal offense.13
Because there is legally insufficient evidence that
any of the Defendants published a statement with
actual malice, the district court correctly granted
summary judgment to Defendants on Blankenship’s
defamation claims.
IV.
For the same reasons, the district court also did not
err in granting summary judgment to Defendants on
Blankenship’s false light invasion of privacy and civil
conspiracy claims.
West Virginia recognizes false light invasion of
privacy as an independent cause of action. Crump v.
Beckley Newspapers, Inc., 320 S.E.2d 70, 88 (W. Va.
1983). The elements of defamation and false light
invasion of privacy are not identical, but as with a
defamation claim, a public-figure plaintiff alleging false
light must prove that the defendant made a false
statement with actual malice. Taylor v. W. Va. Dep’t of
Health & Human Res., 788 S.E.2d 295, 315–16 (W. Va.
2016). For the reasons we have discussed, Blankenship
has not established a genuine dispute of material fact
that any Defendant acted with actual malice. His false
light claims therefore fail.
13
In his briefing, Blankenship separately argues that New York
Times v. Sullivan should be overturned. But, of course, this Court
“cannot overrule Supreme Court precedents.” In re Grand Jury
Subpoena, 870 F.3d 312, 319 n.3 (4th Cir. 2017).
App. 50
Blankenship’s civil conspiracy claims meet the same
fate. Under West Virginia law, civil conspiracy is
defined as “a combination to commit a tort.” Dunn v.
Rockwell, 689 S.E.2d 255, 268 (W. Va. 2009). While
West Virginia recognizes a separate cause of action for
civil conspiracy, “[t]he cause of action is not created by
the conspiracy but by the wrongful acts done by the
defendants to the injury of the plaintiff.” Id. at 259. A
conspiracy claim enables a plaintiff to recover damages
against additional defendants “who did not actually
commit a tort themselves,” but the claim cannot stand
without proof of the underlying tort. Id. at 269. As the
West Virginia Supreme Court explained, “[a]
conspiracy may produce one or more torts. If it does,
then every conspirator is liable for that tort, including
a conspirator who promoted but did not commit the
tort. A conspiracy is not, itself, a tort. It is the tort, and
each tort, not the conspiracy, that is actionable.” Id.
(quoting Segall v. Hurwitz, 339 N.W.2d 333, 338 (Wis.
App. 1983)) (emphasis added). This rule makes
particular sense in defamation cases; to comply with
New York Times v. Sullivan, a public-figure plaintiff
must show that some defendant actually published a
false statement with actual malice.
At this stage, Blankenship’s only remaining civil
conspiracy claims are against Fox News. Because he
has not offered sufficient evidence of actual malice to
support his defamation or false light claims against Fox
News, he cannot establish an underlying tort, and his
conspiracy claims fail as a matter of law. See, e.g., Long
v. M&M Transp., LLC, 44 F. Supp. 3d 636, 652 (N.D.W.
Va. 2014) (holding civil conspiracy claim failed because
there was “no underlying tort to support [it]”).
App. 51
V.
For the reasons set forth in this opinion, we affirm
the district court’s orders granting summary judgment
to Defendants and dismissing these actions.
AFFIRMED
App. 52
APPENDIX B
THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
Civil Action No. 2:20-cv-000278
[Filed February 2, 2022]
____________________________________
DON BLANKENSHIP,
)
Plaintiff,
)
)
v.
)
)
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
App. 53
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 to violate federal mine safety laws. See id.,
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.
App. 54
¶ 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., ¶¶ 4243.
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
App. 55
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
App. 56
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 nonmoving 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
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
App. 57
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
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
‘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. 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.
App. 58
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 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
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
App. 59
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.
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
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.”).
App. 60
convincing evidence. See Chafin, 578 S.E.2d at 366-67;
Pritt, 557 S.E.2d at 862; Hinerman, 423 S.E.2d at 57273.
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
5
The moving defendants also contend that Mr. Blankenship has
failed to produce evidence of causation or compensable damages.
App. 61
the 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);
App. 62
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
App. 63
“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.
App. 64
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
App. 65
convicted of a misdemeanor.6 Additionally, Mr.
Blankenship asserts that the 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 120 n.9. He
goes on to cite numerous cases in which courts have
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 Mr.
Blankenship has not provided a copy of this unidentified April 6,
2016, article into evidence.
App. 66
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 publicfigure 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
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.
App. 67
witnesses as to this 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 favored,9 but “because of the difficulty a
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).
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
App. 68
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 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
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.
App. 69
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
App. 70
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 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
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.
App. 71
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
App. 72
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
App. 73
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 a plaintiff
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.
App. 74
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
App. 75
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.
App. 76
ENTER: February 2, 2022
/s/ John T. Copenhaver, Jr.
John T. Copenhaver, Jr.
Senior United States District Judge
App. 77
APPENDIX C
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
Civil Action No. 2:20-cv-000278
[Filed February 2, 2022]
____________________________________
DON BLANKENSHIP,
)
Plaintiff,
)
)
v.
)
)
NBCUNIVERSAL, LLC, CNBC,
)
LLC, and DOES 1-50 INCLUSIVE,
)
Defendants.
)
___________________________________ )
JUDGMENT ORDER
In accordance with the companion Memorandum
Opinion and Order entered this same date, it is
ORDERED that judgment be, and hereby is, entered in
favor of Defendants NBCUniversal, LLC, and CNBC,
LLC, and against Plaintiff Don Blankenship. It is
further ORDERED that this civil action is DISMISSED
and STRICKEN from the docket.
The Clerk is directed to transmit copies of this
Order to all counsel of record and to any unrepresented
parties.
App. 78
ENTER: February 2, 2022
/s/ John T. Copenhaver, Jr.
John T. Copenhaver, Jr.
Senior United States District Judge
App. 79
APPENDIX D
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
Civil Action No. 2:19-cv-00236
[Filed February 2, 2022]
________________________________________________
DON BLANKENSHIP,
)
Plaintiff,
)
)
v.
)
)
FOX NEWS NETWORK, LLC; CABLE NEWS
)
NETWORK, INC.; MSNBC CABLE, LLC; 35th
)
INC.; WP COMPANY, LLC d/b/a The Washington )
Post; MEDIAITE, LLC; FISCALNOTE, INC. d/b/a )
Roll Call; NEWS AND GUTS, LLC; THE
)
CHARLESTON GAZETTE-MAIL; AMERICAN
)
BROADCASTING COMPANIES, INC.; TAMAR
)
AUBER; GRIFFIN CONNOLLY; ELI LEHRER;
)
and DOES 1-50 INCLUSIVE,
)
Defendants.
)
_______________________________________________ )
App. 80
MEMORANDUM OPINION AND ORDER
Pending are the motion for summary judgment filed
by defendant 35th Inc (“35th PAC”1) on May 24, 2021
(ECF No. 892), and the motion to strike some of 35th
PAC’s evidentiary submission filed by the plaintiff on
June 11, 2021 (ECF No. 929).
I. Background
The plaintiff initiated this action on March 14,
2019, in Mingo County Circuit Court, asserting claims
of defamation and false light invasion of privacy
against numerous media organizations, reporters, and
others. See ECF No. 1. The action was removed to this
court based on diversity jurisdiction. See id.; 28 U.S.C.
§ 1332.
The operative amended complaint alleges the
following. After an explosion in a West Virginia mine
resulted in the death 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 the plaintiff, who was
Massey Energy’s chief executive officer. See ECF
No. 14 ¶¶ 7-8, 136-41. While the plaintiff was not
1
In the caption of the operative complaint, the plaintiff identifies
the defendant as “35th Inc” but refers to the defendant as “35th
PAC” throughout the body of the complaint. ECF No. 14 at 1, 15,
35, 55. In its summary-judgment briefing, the defendant explains
that it was originally organized as “35th Inc.” but later changed its
name to “35th PAC” via a Federal Elections Commission filing.
ECF No. 893 at 2 & n.1. Both parties refer to the defendant as
“35th PAC” in their summary-judgment briefing, see ECF No. 893;
ECF No. 916, and the court does the same herein.
App. 81
charged with the deaths of the miners, the Government
later charged him with three felonies as well as one
misdemeanor for conspiracy to violate federal mine
safety laws. See id. ¶ 141. On December 3, 2015, a jury
acquitted the plaintiff of the felony charges but found
him guilty of the misdemeanor offense. See id. ¶ 143.
The plaintiff was convicted and sentenced to one year
in prison, and he was released in the spring of 2017.
See id. ¶¶ 144-45.
In January 2018, the plaintiff announced his
campaign to run as a Republican for a United States
Senate seat in West Virginia. See id. ¶ 146. The
plaintiff lost his bid for the Republican party’s
nomination in the primary election on May 8, 2018. See
id. ¶ 190. The plaintiff alleges that media coverage was
responsible for his loss due to defamatory statements
about the plaintiff that referred to him as a “felon” or
a “convicted felon,”2 despite the fact that he was cleared
of the felony charges and was only convicted of the
misdemeanor offense. See id. ¶¶ 152-190. The plaintiff
further alleges that there was an organized effort to
defeat his campaign, in part through the defamatory
media coverage, see id. ¶¶ 150-90, which continued
after the primary election, see id. ¶¶ 191-221.
The plaintiff alleges that these defamatory
statements injured his reputation, prevented him from
pursuing other business opportunities, and caused him
to lose in the primary election. See id. ¶¶ 24, 190. In
addition, the plaintiff alleges that many of these
statements were made in conjunction with reference to
2
The exact reference varies among the defendants.
App. 82
the mine disaster and therefore had the additional
effect of falsely attributing to him responsibility for
murder. See id. ¶¶ 23, 228, 242.
As for 35th PAC in particular, there is no dispute
that it is an “independent expenditure-only political
committee” formed in 2017 for the purpose of using
independent expenditures to support West Virginia
Attorney General Patrick Morrissey’s candidacy for the
Republican nomination for the same Senate seat that
the plaintiff sought in 2018. ECF No. 892-2 at 1; see
ECF No. 14 ¶ 37; ECF No. 893 at 2-3; ECF No. 916 at
2. There is also no dispute that, on April 10, 2018, in
response to a Tweet authored by the plaintiff, 35th
PAC – through its Executive Director, David James
Eckert – published a Tweet stating:
You are a convicted felon hurting West Virginia
families. That’s why @realDonald Trump
administration won’t help you #wvsen
https://www.wvgazettemail.com/news/trump-dojurges-court-to-not-hear-blankenship-appeal/
article_ee34035c-568a-508f-a2b8-a1f4a1865fa5.
html.
ECF No. 892-2 ¶¶ 5, 11; see ECF No. 916 at 2.
The URL3 provided at the end of the Tweet was to
an August 25, 2017 article published on the Charleston
Gazette-Mail’s website regarding the government’s
3
A URL, shorthand for “Uniform Resource Locator,” is an Internet
address of a resource, such as a document or a website. See URL,
Miriam-Webster Dictionary, https://www.merriamwebster.com/
dictionary/URL (last visited August 16, 2021).
App. 83
request that the Supreme Court deny the plaintiff’s
petition for certiorari to appeal his criminal conviction.
See ECF No. 929-4 at 2-3. The article discusses the
plaintiff’s conviction and sentence but does not discuss
whether the plaintiff’s conviction was for a felony
offense. See id. In his motion to strike briefing, the
plaintiff asserts that the August 25, 2017 article
contains a hyperlink to another Charleston GazetteMail article that correctly reports that the plaintiff was
convicted of a misdemeanor. See ECF No. 929 at 3.
However, the plaintiff does not provide a copy of this
second article or any additional information that would
allow the court to locate it. See id. (citing ECF No. 9295); ECF No. 929-5 (containing no article).4
In his complaint, the plaintiff alleges that 35th
PAC’s Tweet is false in that it refers to him as a
convicted felon when he is not a convicted felon. See
ECF No. 14 ¶ 6, 153. He alleges that 35th PAC knew at
4
Notably, 35th PAC has not provided the court a copy of the
August 25, 2017 article and instead refers the court to the URL
address where the article is purportedly found. See ECF No. 893
at 5 n.1. However, the article is no longer found at that URL
address. The plaintiff does provide a copy of the August 25, 2017
article, albeit as part of his briefing on the motion to strike rather
than his summary-judgment briefing. See ECF No. 929-4. As noted
above, however, the plaintiff has not provided the court with a copy
of the other article to which the August 25, 2017 article
purportedly links or any additional information that might allow
the court to locate it. And, notably, although the copy of the
August 25, 2017 article he provides includes numerous underlined
words and phrases, suggesting hyperlinks to other sources, the
copy itself is in a format that contains no actual hyperlinks. See id.
Herein lie several lessons concerning the submission of exhibits to
the court.
App. 84
the time the Tweet was published that it was false and
that 35th PAC nonetheless chose to publish the Tweet
out of malice toward the plaintiff. See id. ¶ 153. He also
alleges that, although he later informed 35th PAC that
the Tweet was false, 35th PAC never issued a
correction. See id.
The plaintiff further alleges, on information and
belief, that 35th PAC, the National Republican
Senatorial Committee (“NRSC”),5 Kevin McLaughlin,6
whom the complaint identifies as the current director
of NRSC and “a longtime Republican Party operative,”
5
The plaintiff’s complaint named NRSC as a defendant. See ECF
No. 14. By a December 17, 2020 order, the court dismissed NRSC
following the plaintiff’s and NRSC’s submission of a stipulation of
dismissal. See ECF No. 692; ECF No. 694.
6
The plaintiff’s complaint named Mr. McLaughlin as a defendant
as well. See ECF No. 14. In a March 31, 2020 memorandum
opinion and order, the court dismissed Mr. McLaughlin as a
defendant on personal-jurisdiction grounds. See ECF No. 398 at
52, 78. On April 17, 2020, the plaintiff filed a complaint against
Mr. McLaughlin in the Eastern District of Virginia, asserting
substantially the same allegations and claims that had been
asserted against Mr. McLaughlin in this case. See Compl.,
Blankenship v. McLaughlin, No. 1:20-cv-00429-LMB-IDD (E.D.
Va.), ECF No. 1. As has been noted in other filings in this case, on
November 13, 2020, Mr. McLaughlin notified the plaintiff that he
intended to seek Fed. R. Civ. P. 11 sanctions against the plaintiff,
on the ground that the plaintiff’s interrogatory responses
demonstrated the plaintiff had no factual basis for pursuing his
claims against Mr. McLaughlin, unless the plaintiff agreed to
dismiss the claims. See ECF No. 802-1 (sealed). On December 11,
2020, the plaintiff and Mr. McLaughlin stipulated to dismissal of
the claims against Mr. McLaughlin pending in the Eastern District
of Virginia with prejudice. See McLaughlin, ECF No. 91.
App. 85
as well as other unidentified conspirators shared a
common plan to defeat the plaintiff’s candidacy. Id.
¶ 82; see id. ¶¶ 233-34, 246-47. He also alleges that
35th PAC, NRSC, Mr. McLaughlin, and the other
conspirators shared a common plan to defame him and
to cast him in a false light and agreed to publish or
cause others to publish claims that he was a convicted
felon, despite knowing the claims were false. See id.
¶¶ 234, 247.
Based on these allegations, the plaintiff asserts four
causes of action against 35th PAC, though the
complaint (somewhat confusingly) lists them in two
counts. See id. ¶¶ 222-50. In all, the plaintiff asserts
causes of action for (1) defamation, (2) conspiracy to
defame, (3) false light invasion of privacy, and
(4) conspiracy to commit false light invasion of privacy.
See id.
Following discovery, 35th PAC filed its motion for
summary judgment. See ECF No. 892. It argues that it
is entitled to summary judgment on all four causes of
action asserted against it. See ECF No. 893 at 9-20
(arguing expressly for summary judgment on claims of
defamation, conspiracy to defame, false light invasion
of privacy, and conspiracy to commit false light
invasion of privacy). In response,7 the plaintiff argues
7
The plaintiff filed a one-page response to 35th PAC’s motion for
summary judgment and attached thereto an exhibit. See ECF
No. 913; ECF No. 913-1. On the same day, he filed a five-page
memorandum in opposition to the motion for summary judgment.
See ECF No. 916. Although the plaintiff’s multiple filings are not
in keeping with the Local Rules regarding motions practice, see LR
Civ P 7.1(a), the court has considered all the plaintiff’s filings.
App. 86
that the court should deny the motion for summary
judgment “as to defamation and false light invasion of
privacy contained in Counts One and Three of the
Amended Complaint.”8 ECF No. 916 at 5-6. Thus, it
appears that the plaintiff concedes that 35th PAC is
entitled to summary judgment with respect to the two
conspiracy causes of action.9
After submitting his response to 35th PAC’s motion
for summary judgment, the plaintiff filed his motion to
strike portions of 35th PAC’s evidentiary submission.
See ECF No. 929. Specifically, the plaintiff challenges
four statements made by Mr. Eckert – 35th PAC’s
director and the author of the Tweet at issue – in the
affidavit Mr. Eckert submitted in support of 35th PAC’s
motion for summary judgment. See id.; see also ECF
No. 892-2.
Briefing on 35th PAC’s motion for summary
judgment and on the plaintiff’s motion to strike have
completed, and the motions are ripe for disposition.
8
As noted earlier herein, the plaintiff’s amended complaint
contains only two counts, labeled “Count I” and “Count II.”
9
This view is confirmed by the fact that the plaintiff, although
apparently recognizing that there are more than two causes of
action asserted in his complaint, note 8, supra, expressly opposes
summary judgment as to only two causes of action. The view is
further confirmed by the fact that the plaintiff’s barebones
summary-judgment briefing contains no discussion whatsoever of
the facts or law related to the two conspiracy causes of action.
App. 87
II. Discussion
The court first addresses the plaintiff’s motion to
strike before turning to 35th PAC’s motion for
summary judgment.
A. Motion to Strike
1. Legal Standard
“When, at the summary-judgment stage, a party
asserts that materials cited by an opposing party to
[support] a fact[] . . . would not be admissible at trial,
‘a motion to strike is no longer the favored (or
authorized) method of challenging the inadmissible
nature of the evidentiary submission.’” Hall v.
Gestamp, W. Va., LLC, No. 2:20-cv-00146, 2021 WL
1240635, at *8 (S.D.W. Va. Apr. 2, 2021) (brackets
omitted) (quoting Propst v. HWS Co., Inc., 148 F. Supp.
3d 506, 511 (W.D.N.C. 2015); see also 11 James Wm.
Moore et al., Moore’s Federal Practice § 56.91[4] (2021).
“Rather, since the 2010 amendments to [Fed. R. Civ.
P.] 56, the proper way to raise such a challenge is to
‘object that the material cited to support . . . a fact
cannot be presented in a form that would be admissible
in evidence.’” Courtland Co., Inc. v. Union Carbide
Corp., No. 2:18-cv-01230, 2021 WL 2110876, at *2
(S.D.W. Va. May 25, 2021) (emphasis in Courtland)
(quoting Fed. R. Civ. P. 56(c)(2); see also Fed. R. Civ.
P. 56 advisory committee’s note to 2010 amendments
(explaining that “[t]here is no need to make a separate
motion to strike” and that “[t]he objection functions
much as an objection at trial, adjusted for the pretrial
setting”). “[T]o merit the court’s consideration,
objections, at a minimum, must specify the material
App. 88
being challenged and state the basis for the objection
with sufficient particularity and explanation to permit
the court to rule.” Courtland, 2021 WL 2110876, at *3;
see id. (collecting cases).
Upon a proper objection, under Rule 56(c)(2), “the
court may consider . . . the content or substance of [the]
otherwise inadmissible materials where . . . ‘the party
submitting the evidence shows that it will be possible
to put the information into an admissible form.’”
Humphreys & Partners Architects, L.P. v. Lessard
Design, Inc., 790 F.3d 532, 538 (4th Cir. 2015) (internal
brackets and ellipsis omitted) (quoting 11 James Wm.
Moore et al., Moore’s Federal Practice § 56.91[2] (3d ed.
2015)). “If [a party] objects to the court’s consideration
of ‘material cited to support . . . a fact,’ the [proponent]
has the burden ‘to . . . explain the admissible form that
is anticipated.’” Id. at 538-39 (internal citations
omitted) (quoting Fed. R. Civ. P. 56(c)(2) and advisory
committee’s note to 2010 amendments).
2. Procedural Challenges
35th PAC raises several procedural challenges to
the plaintiff’s motion to strike. Among other things,
35th PAC argues that the motion is untimely because
it should have been filed in conjunction with the
applicable summary judgment motion deadline; that
the plaintiff waived any challenges to Mr. Eckert’s
affidavit by citing to it to support his summary
judgment arguments; and that, under Rule 56(c)(2), the
motion is an improper method of challenging 35th
PAC’s evidentiary submission in support of summary
judgment. See ECF No. 942 at 5-7.
App. 89
Except in one respect, the court declines to dispose
of the motion to strike based on the procedural
challenges raised by 35th PAC. As explained in
Courtland, the Rules Committee “has left courts and
litigants in the lurch” because, although it “made clear
in the 2010 amendments to Rule 56 that objecting,
rather than filing a motion to strike, is the correct way
to challenge the admissibility of submitted materials’
content at the summary judgment stage, it did not
specify any procedural method for raising such
objections,” and “[t]his court has not, by Local Rule or
otherwise, selected a method for litigants to raise
Rule 56(c)(2) objections.” Courtland, 2021 WL 2110876,
at *3 (citing 11 Moore, supra, § 56.91[5]-[6]). Because
of the uncertainty as to the proper method for raising
Rule 56(c)(2) objections, the court cannot say that the
objections advanced in the plaintiff’s motion would be
untimely or waived for the reasons offered by 35th
PAC.
The court agrees with 35th PAC, however, that the
plaintiff’s motion to strike is subject to denial on the
ground that it is an improper vehicle for challenging
the admissibility of 35th PAC’s evidentiary submission.
See Hall, 2021 WL 1240635, at *8 (“As an initial
matter, . . . the . . . motion to strike . . . must be denied
because striking evidence is no longer the authorized
method for addressing challenges to an evidentiary
submission based on inadmissibility.” (citing
Humphreys, 790 F.3d at 538-39; Propst, 148 F. Supp.
3d at 511)). The changes wrought by the 2010
amendments have been in effect for over a decade now,
and, regardless of any uncertainty as to the proper
method of raising objections, it is clear that the kind of
App. 90
challenges raised by the plaintiff here must be raised
through objections, not through a motion to strike. It is
incumbent on litigants to bring their challenges
through objections, and it is appropriate for courts to
deny such challenges brought in motions to strike for
the simple reason that they do not conform to the
requirements of Rule 56(c).
Although the procedural deficiency identified in the
preceding paragraph is sufficient to deny the plaintiff’s
motion, the court also concludes, as explained further
herein, that the motion should be denied on the merits.
3. Merits
The plaintiff challenges four statements in Mr.
Eckert’s affidavit. The court addresses each of these
challenges separately.
a. Paragraph 9
The plaintiff first challenges ¶ 9 of Mr. Eckert’s
affidavit, which states:
9)
I recall reading news articles describing
[the plaintiff] as having been a felon as a
result of his criminal conviction. I do not
expressly recall which particular articles
I read, but they were the types of articles
in newspapers and other media sources
that I would have found in a Google
search or that would have been shared by
others across social media.
ECF No. 892-2 ¶ 9. The plaintiff challenges this
paragraph on the ground that it contradicts the
App. 91
Charleston Gazette-Mail’s August 25, 2017 article
referenced in 35th PAC’s Tweet along with other
unspecified evidence. See ECF No. 929 ¶ 12; ECF
No. 957 ¶ 14.
The plaintiff fails to explain how Mr. Eckert’s
averment that he recollects reading news articles
describing the plaintiff as a felon is (or even can be)
contradicted by the August 25, 2017 article describing
the government’s arguments against the granting of
certiorari in the plaintiff’s criminal case. Nor does he
explain what other evidence contradicts the averment.
At best, the plaintiff appears to be relying on his own
affidavit, in which he avers that, upon information and
belief, there were no news articles describing him as a
convicted felon prior to 35th PAC’s April 10, 2018
Tweet. See ECF No. 929 ¶ 16; ECF No. 929-1 ¶ 15. As
35th PAC points out, however, the plaintiff expressly
admitted in his response to 35th PAC’s interrogatories
“that he was falsely referred to as a ‘felon’ on multiple
occasions . . . before . . . [35th PAC]’s Tweet on April 10,
2018,” ECF No. 942-1 at 4, and the plaintiff’s own
complaint identifies three articles or social media posts
describing him as a felon on or before April 10, 2018,
see ECF No. 14 ¶¶ 149, 152, 154.
Beyond being only half-developed and inconsistent
with his own pleadings and discovery responses, the
court is not persuaded that the plaintiff’s challenge is
a proper objection to the admissibility of ¶ 9 that
merits the court’s consideration. The gist of the
plaintiff’s argument appears to be that the court should
not consider Mr. Eckert’s averment in ¶ 9 because it is
inconsistent with other evidence (though, it does not
App. 92
appear to be so). But, at the summary judgment stage,
the court does not make credibility determinations and
generally will not reject an otherwise proper affidavit
on the ground that the averments therein are not
sufficiently corroborated or are inconsistent with other
evidence, unless perhaps the averments are too
incredible to be accepted by reasonable minds. See
Nnadozie v. Genesis HealthCare Corp., 730 F. App’x
151, 160 (4th Cir. 2018); Horton v. Dobbs, No. 1:09-cv00114, 2011 WL 1899760, at *3 (N.D.W. Va. May 19,
2011). Here, the plaintiff has not shown that Mr.
Eckert’s averment in ¶ 9 is so incredible that
reasonable minds could not accept it, and thus the
plaintiff’s challenge to its admissibility appears
meritless.
Even if Mr. Eckert’s averment in ¶ 9 were
susceptible to challenge, the court concludes that 35th
PAC has met its burden to show that it will be possible
to put the information contained therein into an
admissible form at trial. At trial, Mr. Eckert would be
able to testify regarding his own recollections, and the
plaintiff would be able to attempt impeaching him if he
so chooses. Accordingly, the court overrules the
objection to ¶ 9.
b. Paragraph 13
The plaintiff next challenges ¶ 13 of Mr. Eckert’s
affidavit, which states:
13)
The reference to [the plaintiff] as a “felon”
was based on what we believed to have
been [his] criminal status following [his]
conviction in federal court, and was based
App. 93
on our team’s research into [his]
biography and his criminal conviction.
This Tweet and the link to the Charleston
Gazette-Mail article was an attempt to
accurately highlight [the plaintiff]’s legal
status based on how we understood it as
of April 10, 2018, as it pertained to [his]
qualifications to serve as a U.S. Senator
from West Virginia.
ECF No. 892-2 ¶ 13. The plaintiff challenges this
paragraph on the ground that it is not based on Mr.
Eckert’s personal knowledge. See ECF No. 929 at 2-3;
ECF No. 957 at 4-5. He argues that Mr. Eckert has not
laid a sufficient foundation to make averments
regarding what others of 35th PAC’s “team” “believed,”
“researched,” or “understood” regarding the nature of
the plaintiff’s conviction. See ECF No. 929 at 2-3; ECF
No. 957 at 4-5. The plaintiff also argues that the
averment in ¶ 13 is contradicted by the Charleston
Gazette-Mail’s August 25, 2017 article. See ECF
No. 929 at 3-4.
The court again is not persuaded that the plaintiff’s
challenges amount to proper objections. First, as 35th
PAC notes, Mr. Eckert states in his affidavit that he
served as 35th PAC’s executive director; that, in that
capacity, he “was responsible for the day-to-day
operations of . . . 35th [PAC], including operating [its]
social media accounts, including its Twitter account”;
and that it was 35th PAC’s “usual practice and
procedure” to have “all of its communications . . . vetted
by legal counsel prior to being disseminated.” ECF
No. 892-2 ¶¶ 2, 5-6, 15. In the court’s view, Mr. Eckert’s
App. 94
averments regarding his duties in relation to vetting
35th PAC’s communications prior to dissemination
provide sufficient foundation for him to testify
regarding the status of his “team[’s]” research,
understanding, and belief prior to publishing the Tweet
at issue.
Second, the court again fails to see how the GazetteMail’s August 25, 2017 article contradicts Mr. Eckert’s
averment in ¶ 13. More importantly, to the extent the
article might be at odds with the averment, it merely
calls into question Mr. Eckert’s credibility, and,
because his averment is not so incredible that it could
not reasonably be accepted, the plaintiff’s challenge to
¶ 13 based on its purported inconsistency with the
August 25, 2017 article is meritless. See Nnadozie, 730
F. App’x at 160; Horton, 2011 WL 1899760, at *3.
Even if the plaintiff’s challenges to ¶ 13 were proper
objections, 35th PAC has met its burden to show that
it will be possible to put the information contained in
¶ 13 into an admissible form at trial. Mr. Eckert will be
able to testify at trial as to the foundation for his
testimony regarding his team’s research,
understanding, and belief, and thus he will also be able
to testify as to what his team’s research,
understanding, and belief as to the nature of the
plaintiff’s conviction was, which testimony the plaintiff
may attempt to impeach. Accordingly, the court
overrules the plaintiff’s objection to ¶ 13.
c. Paragraph 14
The plaintiff next challenges ¶ 14 of Mr. Eckert’s
affidavit, which states:
App. 95
14)
I had no knowledge that [the plaintiff]’s
criminal conviction may not have
classified [him] as a “felon” for purposes
of how that term is defined under federal
and West Virginia law.
ECF No. 892-2 ¶ 14. As with ¶ 9, the plaintiff
challenges Mr. Eckert’s averment in ¶ 14 on the ground
that it is inconsistent with the Charleston GazetteMail’s August 25, 2017 article. See ECF No. 929 at 3-4.
He also argues that the averment is “incongruous” with
another Charleston Gazette-Mail article correctly
identifying him as a misdemeanant, to which he claims
the August 25, 2017 article provides a hyperlink. See
id. at 4.
The court again concludes that the plaintiff has not
advanced a proper objection. On its face, Mr. Eckert’s
averment in ¶ 14 regarding his knowledge of the
nature of the plaintiff’s conviction is not inconsistent
with the August 25, 2017 article. Nor is his averment
incongruous with the possibility that another
Charleston Gazette-Mail article – which is not in the
record – identified the plaintiff as a misdemeanant. No
evidence in the record suggests that Mr. Eckert
reviewed this phantom article or was even aware of it.
At most, the article might provide a basis for
challenging Mr. Eckert’s credibility regarding his
knowledge of the nature of the plaintiff’s conviction.
But, even acknowledging this potential challenge, Mr.
Eckert’s averment in ¶ 14 is not so incredible that it
could not be accepted by reasonable minds, and thus
the plaintiff’s challenge to ¶ 14 is meritless. See
App. 96
Nnadozie, 730 F. App’x at 160; Horton, 2011 WL
1899760, at *3.
Even assuming the plaintiff’s challenge to ¶ 14 were
a proper objection, 35th PAC has shown that it will be
possible to put the information contained therein into
an admissible form at trial. Mr. Eckert would be able
to testify at trial as to his own knowledge, and the
plaintiff would be able to attempt to impeach him.
Accordingly, the court overrules the plaintiff’s objection
to ¶ 14.
d. Paragraph 16
Lastly, the plaintiff challenges ¶ 16 of Mr. Eckert’s
affidavit, which states:
16)
The communication did not knowingly
incorrectly refer to [the plaintiff] as a
felon, as it is my practice as an
experienced communication professional
to always seek to make accurate
statements in my organization’s
communications.
ECF No. 892-2 ¶ 16. The plaintiff challenges this
paragraph on the ground that portions of it are not
based on Mr. Eckert’s personal knowledge. See ECF
No. 929 at 2-3. He argues that Mr. Eckert has not laid
a sufficient foundation to make averments regarding
statements in “communications” made by his
“organization[].” See id. The plaintiff further argues
that Mr. Eckert’s averment that the Tweet did not
knowingly incorrectly refer to the plaintiff as a felon is
“irreconcilable” with the Charleston Gazette-Mail’s
August 25, 2017 article as well as the other,
App. 97
hyperlinked Charleston Gazette-Mail article. See id. at
4.
Yet again, the court is not persuaded that the
plaintiff’s challenge advances a proper objection. With
respect to Mr. Eckert’s personal knowledge, the court
concludes, as it has with regard to the averment in
¶ 13, that Mr. Eckert’s averments as to his duties in
relation to vetting 35th PAC’s communications prior to
dissemination provide sufficient foundation for him to
testify regarding statements made in 35th PAC’s
communications. See ECF No. 892-2 ¶¶ 2, 5-6, 15. With
respect to the two Charleston Gazette-Mail articles, the
court concludes, as it has previously, that Mr. Eckert’s
averment that the Tweet was not knowingly incorrect
regarding the nature of the plaintiff’s conviction is not
irreconcilable with either article and that, to the extent
Mr. Eckert’s credibility regarding his knowledge might
be challenged based on the articles, his averment is not
so incredible that it could not be accepted by reasonable
minds. See Nnadozie, 730 F. App’x at 160; Horton, 2011
WL 1899760, at *3. Thus, the court concludes that the
plaintiff’s challenge to ¶ 16 is meritless.
Even if Mr. Eckert’s averment in ¶ 16 were
susceptible to an objection, the court concludes that
35th PAC has shown that it will be possible to put the
information contained in ¶ 16 into an admissible form
at trial. Mr. Eckert will be able to testify at trial as to
the foundation for his testimony regarding statements
made in 35th PAC’s communications. He thus will also
be able to testify as to 35th PAC’s knowledge at the
time the Tweet was published. Accordingly, the court
overrules the plaintiff’s objection to ¶ 16.
App. 98
B. Motion for Summary Judgment
1. Legal 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 nonmoving party. See Tolan v. Cotton, 572 U.S. 650, 651,
657 (2014) (per curiam).
2. Conspiracy claims
As explained earlier, the plaintiff’s complaint
asserts two conspiracy claims against 35th PAC. Under
West Virginia law, “[a] civil conspiracy is a combination
of two or more persons by concerted action to
accomplish an unlawful purpose or to accomplish some
purpose, not in itself unlawful, by unlawful means.”
Syl. pt. 8, Dunn v. Rockwell, 689 S.E.2d 255, 259
(W. Va. 2009). “A civil conspiracy is not a per se, standalone cause of action; it is instead a legal doctrine
under which liability for a tort may be imposed on
people who did not actually commit a tort themselves
but who shared a common plan for its commission with
the actual perpetrator(s).” Syl. pt. 9, Dunn, 689 S.E.2d
at 259.
App. 99
In its summary judgment briefing, 35th PAC argues
that it is entitled to summary judgment on the
conspiracy claims because the plaintiff has adduced no
evidence that it conspired or even interacted with Mr.
McLaughlin, NRSC, or any other person or entity
regarding the events giving rise to this lawsuit. 35th
PAC further points to evidence that it did not engage in
the alleged conspiracy, including its discovery
responses stating that it has no records or knowledge
of any communications between 35th PAC and NRSC
or Mr. McLaughlin, see ECF No. 892-4 at 9-10, as well
as affidavits from Mr. Eckert and 35th PAC treasurer
Charles Gantt, averring that they did not engage in the
alleged conspiracy and that they know of no one else
connected with 35th PAC who did so, see ECF No. 8921 ¶¶ 5-6; ECF No. 892-2 ¶¶ 18-19. The plaintiff does
not respond to these arguments and points to no
evidence of a conspiracy.
The court concludes that 35th PAC has met its
initial burden of demonstrating the absence of a
genuine issue of material fact with respect to the
conspiracy claims and has shifted the burden to the
plaintiff and that the plaintiff has failed to meet his
burden to demonstrate the existence of a genuine
dispute regarding the claims. See Celotex Corp v.
Catrett, 477 U.S. 317, 323 (1986) (describing burdens
in summary judgment context). Accordingly, 35th PAC
is entitled to summary judgment on the conspiracy
claim in Counts I and II of the amended complaint.
3. Defamation
Defamation is “[a] false written or oral statement
that damages another’s reputation.” Pritt v. Republican
App. 100
Nat. Comm., 557 S.E.2d 853, 861 n.12 (W. Va. 2001)
(quoting Black’s Law Dictionary 427 (7th ed. 1999)).
Defamation published in written form constitutes libel.
Syl. Pt. 8, Greenfield v. Schmidt Baking Co., 485 S.E.2d
391, 394 (W. Va. 1997).
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). 35th PAC
asserts that the plaintiff in this case qualifies as a
candidate for public office and may qualify as a public
figure, and the plaintiff does not contest these
designations.10 See ECF 916 at 4; see also, ECF 953 at
14. Inasmuch as the statements at issue herein
occurred prior to the primary election, it is clear that
Mr. Blankenship qualifies as a candidate for public
office.
10
Indeed, based on the allegations in the complaint, the court
previously determined, by its order of March 31, 2020, that the
plaintiff 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 ECF No. 398 at 17 (citing State ex
rel. Suriano v. Gaughan, 480 S.E.2d 548, 556 (W. Va. 1996))
App. 101
Moreover, 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
evidenced by this 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 “allpurpose 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 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
App. 102
an opinion that implied the allegation of
undisclosed defamatory facts as the basis for the
opinion;11 (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.
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
11
In its March 31, 2020, memorandum opinion and order, 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 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 herein and concludes that
the challenged statement is not only capable of defamatory
meaning but constitutes 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 remains 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.”)
App. 103
limited purpose public figure). Further, the Supreme
Court of Appeals of West Virginia 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.
Of particular note here, 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 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 West Viriginia Supreme
Court of Appeals, “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
App. 104
malice standard, are at their “strongest” when the
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).
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.”).
Here, 35th PAC argues that the plaintiff has not
adduced evidence from which a jury could reasonably
find actual malice under a clear and convincing
evidence standard. Specifically, 35th PAC argues that
the plaintiff has not adduced evidence that Mr. Eckert,
App. 105
or any other 35th PAC employee, knew at the time Mr.
Eckert published his Tweet that its reference to the
plaintiff as a felon was false or misleading. Nor, 35th
PAC asserts, has the plaintiff adduced sufficient
evidence to permit the conclusion that Mr. Eckert or
any other 35th PAC employee in fact entertained
serious doubts as to the Tweet’s truth. See St. Amant
v. Thompson, 390 U.S. 727, 731 (1968) (discussing
reckless-disregard definition); see also Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485, 511 n.30
(1984) (defining “reckless disregard” as when the
defendant “subjectively entertained serious doubt as to
the truth of his statement”); CACI, 536 F.3d at 300
(explaining that reckless disregard requires “sufficient
evidence to permit the conclusion that the defamatory
statement was ‘made with a high degree of awareness
of its probable falsity” (brackets omitted) (quoting
Garrison v. Louisiana, 379 U.S. 64, 74 (1964))).
35th PAC points to evidence that Mr. Eckert did not
know that the Tweet was false when he published it
and that he did not publish the Tweet with reckless
disregard for its potential falsity. 35th PAC notes that,
in his affidavit, Mr. Eckert avers that he had no
knowledge that the plaintiff’s conviction might not be
classified as a felony;
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