Don Blankenship v. Fox News Network, L.L.C.

USCA4 Appeal: 22-1207 Doc: 113 Filed: 02/22/2023 Pg: 1 of 44
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
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; 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,
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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;
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 ARGENTO; DAVIS RICHARDSON; MARKETWATCH, INC.; 35TH INC.,
Defendants.
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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-cv-00278; 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.
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,
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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. 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.
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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.”
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.
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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 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
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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
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
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.
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wrote that McConnell was “pretty ticked” about 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.”
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
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.
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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 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
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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 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.
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 of manslaughter. That appears to be the statement Napolitano
was referring to when speaking to Cavuto on May 22.
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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 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.11
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On May 10, 2018, one day after Hayes’s second on-air 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 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
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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.
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.
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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 McGraw sent to an internal email distribution list,
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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”) 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
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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 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
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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 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
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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 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
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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 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
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.
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.
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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 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
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“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.
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.
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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 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.
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Although a jury could infer that Cavuto processed Doocy’s remark and committed
the detail to memory, 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 might well permit a finding that a
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).
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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 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
(Continued)
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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 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.
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.
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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 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
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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 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.
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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 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
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.
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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 sentence)—a fact
that very well could lead a non-lawyer 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
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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 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
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.
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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. 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.
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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, 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
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find with convincing clarity that McLaughlin’s statement was a “knowing, calculated
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 view that Blankenship was “crazy” and a “racist,” likely
referring to comments he had made about Secretary Chao’s Chinese heritage. J.A. 1428.
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.
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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 non-lawyers 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 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
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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 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
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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 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.
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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 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]
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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 (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 fact-
check 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,’”
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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 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
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.
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included such references. See Daniels, 992 F.2d at 1334 (concluding it was “impossible”
to find 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 Rule
30(b)(6) corporate representative. Dahl testified that “what happened here was an honest
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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 fact-check 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 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
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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 than confused about how to describe a person who served
a year in prison for a federal offense. 13
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.
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).
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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.
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
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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]”).
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
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