Virginia Lawyers Weekly VA Lawyers Weekly
Where a former candidate for the U.S. Senate alleged that multiple media companies defamed him by describing him as a “felon,” although he was convicted and served one year in prison for a federal conspiracy offense that is classified as a misdemeanor, but he failed to show any of the statements were made with “actual malice,” the media companies and individual journalists prevailed on the claims.
Background
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.” After numerous defendants were dismissed early in the litigation, the district court granted summary judgment to all 16 remaining defendants after concluding they did not make the statements with actual malice.
Defamation
To prevail in a defamation action in West Virginia, 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. To prove actual malice, Blankenship must show that defendants made each statement “with knowledge that it was false or with reckless disregard of whether it was false or not.”
With respect to 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, 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.
Turning to MSNBC, Chris Hayes testified that he believed his comments were accurate when he made them. And 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.
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, the record does not support a finding by clear and convincing evidence that any of the three made the statements with actual malice.
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 Aug. 9, 2018, blog post by Amber Phillips that referred to him as “one of three convicted felons” running for office in 2018. This court concludes that Blankenship has failed to establish a genuine issue that either was made with actual malice.
Blankenship’s defamation claim against ABC centers on the July 23, 2018, article by John Verhovek in which Verhovek referred to Blankenship as “the former coal baron and convicted felon.” Contemporaneous evidence indicates that Verhovek did not realize the “convicted felon” language was false.
The district court also correctly held that there is insufficient proof of actual malice with respect to the 10 other defendants in the consolidated appeal. 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.
With respect to the Boston Globe, Blankenship takes issue with a single article, which the Globe repurposed from an AP wire story and published on May 22, 2018. Nothing in the record indicates that the edit was anything more than a simple accident.
Remaining claims
West Virginia recognizes false light invasion of privacy as an independent cause of action. As with a defamation claim, a public-figure plaintiff alleging false light must prove that the defendant made a false statement with actual malice. Because Blankenship has not established a genuine dispute of material fact that any defendant acted with actual malice, his false light claims therefore fail.
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.
Affirmed.
Blankenship v. NBCUniversal LLC, Case Nos. 22-1198, 22-1207, 22-1326, Feb. 22, 2023. 4th Cir. (Gregory), from SDWVA at Charleston (Copenhaver). Eric Peter Early for Appellant. Kevin Taylor Baine and Jonathan M. Albano for Appellees. VLW 023-2-054. 44 pp.
