Free Speech

Don Blankenship's Libel Lawsuit Against Donald Trump, Jr. Can Go Forward

Blankenship had been convicted of a misdemeanor related to a deadly disaster at a mine his company owned; Trump, Jr. had erroneously labeled him a "felon"; a judge concluded that there's enough evidence that Trump, Jr. knew the statement was false, or at least likely false.

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Today's decision in Blankenship v. Trump, by Judge John Copenhaver (S.D. W. Va.), deals with Donald Trump, Jr.'s Tweet that called Don Blankenship—who had been running in the Republican primary for a West Virginia Senate seat—a "felon." (Blankenship alleges that the Trump team wanted their own preferred candidate to win the primary.) Blankenship had been convicted of a misdemeanor, but not a felony:

Following an explosion in a West Virginia mine on April 5, 2010, that resulted in the death of twenty-nine (29) miners, the United States government initiated an investigation into the cause of the explosion. While the plaintiff was not charged with the death of the miners or with causing the explosion, the government later charged the plaintiff with three felonies, including conspiracy to defraud the federal Mine Safety and Health Administration, and one misdemeanor for conspiracy to violate federal mine safety laws. On December 3, 2015, a federal jury found the plaintiff not guilty of the felony charges but convicted him of the misdemeanor offense. The plaintiff was sentenced to one year in prison, which the plaintiff served and from which he was released in the spring of 2017.

The court denied Donald Trump, Jr.'s motion to dismiss, concluding that erroneously calling a misdemeanant a felon was potentially defamatory:

On the question of falsity[, "][West Virginia libel law] overlooks minor inaccuracies and concentrates upon substantial truth. Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge be justified. A statement is not considered false unless it would have a different effect on the mind of the reader from that which the pleaded truth would have produced.["] "[I]f something is 'substantially' true in overall effect, minor inaccuracies or falsities will not create falsity." …

Although the exact difference between [a misdemeanor and a felony] may not be as clear to general society, the court agrees with the plaintiff that "society at large" might "view[] a 'felon' far differently than a person who has committed an offense resulting in a misdemeanor conviction." Thus, at the motion-to-dismiss stage, the court concludes that the complaint plausibly alleges that Trump Jr.'s tweet labeling the plaintiff a felon was not a substantial truth or a minor inaccuracy….

And the court concluded that Blankenship had sufficiently plausibly alleged that Trump, Jr. was speaking with "actual malice," which here means knowing that the statement was false or reckless about the possibility of falsehood:

"[P]artisanship, animus toward the subject of a libel, or other 'malicious' motives" are not conclusive evidence of "actual malice" on their own, but a jury may consider them in determining "whether a subjective realization that the statement was false or a subjective realization that the statement was being published recklessly, existed at the time the statement was published." To show reckless disregard for truth or falsity, and therefore actual malice, "a plaintiff must prove that 'the defendant in fact entertained serious doubts as to the truth of his publication.' "To plead actual malice, therefore, [a plaintiff] must plausibly allege that [the defendant] [published] the [material] with a 'high degree of awareness'" that it was "likely" false. Recklessness may be found where there are obvious reasons to doubt the veracity or accuracy of information.

[P]laintiff alleges facts in support of the inference that Trump, Jr. issued the tweet with knowledge of its falsity: (1) Trump, Jr. was involved in high-level discussions about the primary campaign in West Virginia, (2) he made the statements shortly after one such meeting, (3) the comments were made as part of a string of false comments by sophisticated party operatives, (4) the true facts were widely available on the internet and had been widely reported, and (5) he never retracted or corrected the false tweets, despite being informed of their falsity….

The plaintiff's allegations are sufficient at this stage to create a "plausible inference" that Trump, Jr. published his tweet with knowledge of its falsity. In his quote tweet [which forms of the basis of this claim], Trump, Jr. concedes knowledge of the plaintiff's criminal history and association with the mine explosion. The CNN news article linked in the quote tweet reports that the plaintiff "had just recently finished serving a yearlong sentence following a misdemeanor conviction for his involvement in the deadliest US mine explosion in four decades." Based on this article that Trump, Jr. himself cites within his own quote tweet, there is a plausible inference that he had knowledge of the plaintiff's conviction history in association with the mine explosion, and in particular that the conviction was a misdemeanor, not a felony.

Alternatively, the CNN article supports a plausible allegation of reckless disregard for the truth. Trump, Jr. alleges that he had a "reasonable assumption" that the plaintiff was a felon based on numerous news sources that mention the mine explosion and identify the plaintiff as a felon. Trump, Jr. would not have reason to doubt the accuracy of these sources on their own. However, he would have reason to entertain serious doubt about the falsity of his statement based on the CNN article, which unequivocally reports that the plaintiff's conviction in connection with the mine explosion was for a misdemeanor….

NEXT: CNN's Joan Biskupic on Justices Leaking Information To Her: "Don't I wish."

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  1. Well, a trier of fact found a reasonable doubt that he’s a felon. As a result he’s not a convicted felon. Can he be called a felon based on the case laid out in the indictment? Is it defamation to say that the prosecutor was right? The world has many non-convicted felons walking around.

    Trump Jr. doesn’t have to prove Blankenship a felon beyond a reasonable doubt to win a civil case.

    1. At least in my ideolect, “felon” means “person who has been convicted of a felony”, not “person who has engaged in conduct that could constitute a felony”.

      If you have examples of the latter usage, I’d be very interested to see them.

      1. Um, don’t people routinely use the term “convicted felon” for “person who has been convicted of a felony”? Your idiolect would render that term redundant.

        1. I agree, that term is redundant, as are many other commonly-used phrases.

          Do you have examples of “felon” being used to describe someone who hasn’t been convicted of a felony?

            1. By far the most fascinating thing about your post is that it has two URLs and didn’t get blocked. Has Reason finally joined the 21st century?

              1. The Reason people have bumped up the number of permitted URLs in comments on our posts to 3 links. I welcome links, which help us get more supporting evidence into people’s posts; but apparently a large number of links is a strong proxy for spam, they say.

          1. Yes. OJ was widely called “felon” (and murderer, and criminal) AFTER his trial and acquittal. Given the overwhelming evidence against him; such descriptions didn’t raise any eyebrows at the time, as far as I can recall.

            The surviving Goldman family used particularly brutal (and accurate, IMO) language to describe OJ. I think they were hoping OJ would sue them for defamation, which would have given them a chance to depose him during discovery for that would-be trial. (They ended up suing him civilly, of course, and did get to depose him, did get the satisfaction of an “OJ did murder your son.” verdict from a jury, etc.)

          2. Merriam Webster: Felon definition is – one who has committed a felony.

            I’d say conviction isn’t necessary for common usage, if a jury feels you have a reasonable basis to believe they did commit a felony.

            I’m not sure Blankenship will like the result if Trump presents the evidence of why he believes Blankenship is a felon, even if he beat the rap.

            It also seems a little ironic for Blankenship to get his panties all twisted up over this, after his whole ‘Cocaine Mitch’ campaign.

        2. David, aren’t you a lawyer? This decision brings shame to your profession. Charged with 3 felonies, convicted of a misdemeanor in a plea. Let’s spend a $million on legal fees nitpicking the difference.

        3. I agree with Noscitur a sociis.

          I’ve always seen convicted in that context to be an intensifier, not to add substantive content.

      2. IANAL, but I don’t think the fleeing felon doctrine required the person fleeing to have been convicted of a felony.

      3. In a society that will casually toss terms of Nazi and White Supremacist at people specifically to destroy their lives I have a hard time getting worked up over calling someone a felon in a colloquial sense. Legally this may not mean much except to point out how far out of step “actual malice” is with modern society.

      4. “At least in my ideolect, “felon” means “person who has been convicted of a felony”, not “person who has engaged in conduct that could constitute a felony”.”

        Merriam Webster: “1: one who has committed a felony”
        Dictionary.com: “Law. a person who has committed a felony.”

      5. Examples, I don’t have ready to hand, but they are the raw material dictionaries used. I’ve only checked three dictionaries, but their summary of how people use words in practice is always someone who has committed a felony. Getting caught and convicted are not part of the usage-based definitions.
        Poking around further, I did find some definitions that exactly match your usage, a person convicted of a felony.

    2. Aren’t those weighted judgements for the jury?

      Felony, misdemeanor, moving violation

      1. I might agree, if not for the utter meaninglessness of this, and the number of cases that we’ve seen where significantly worse incorrect statements that pretty clearly fall into the “actual malice” category being dismissed not only based on lack of malice, but tortured logic that the word not only were not libel, but COULD NOT be libel. The two cases that come to mind are the laptop case and the Covington kids.

        I do want functional defamation law in this country, but at this point, it seems like “law for me, but not for thee”, to the point that it’s transparently unfair and undermining the rule of law.

  2. I’m not sure how any of this shows that the statement was likely false. It’s certainly possible for somebody to be guilty of a felony if the government can’t prove it beyond a reasonable doubt.

  3. Trump v. Blankenship. In a game like that, decent people root for both to lose.

    Clinger mileage may vary.

    1. If these insanely rich people with access to the best lawyers cannot get proper day in a court of law according to the law as written, what hope is there for the rest of us?

      1. Who has not had a proper day in a court of law in this context?

  4. I’m sure many people would be of the opinion that Blankenship should have been convicted of a felony. If that’s an opinion is it libel?

    1. If I were a juror, looking over Blankenship’s record as a mine owner, I would award him damages of one cent, the lowest coin of the realm.

  5. The judge here is 95. Who really wrote the decision?

    1. I actually had a case in front of Judge Copenhaver. In 1993.

      1. 1988 here. He appeared to me to be of retirement age then.

  6. Maybe Trump meant Blankenship is “a painful abscess of the deep tissues of the palmar surface of the fingertip “

  7. Does anyone seriously think Blankenship’s reputation would suffer any more from being considered a felon than it already is? Some people are libel-proof, you know.

  8. The commonality between this and the Hunter Biden laptop case? Both judges are Democrats.

    1. Seems like the only way these two very fine people could get a fair hearing. Repugs have their internal tribal allegiances/blackmail-networks to respect.

    2. What inclines you to conclude Judge Copenhaver is a Democrat? He was nominated by Gerald Ford and retired from active service — at 93 — enabling former Pres. Trump to nominate a successor.

  9. Imagine how many times the mainstream media has reported falsehoods with actual malice about Trump and others. Nobody could count the number.

    1. Quit whining.

      Or, if you enjoy making me happy, keep whimpering.

    2. Falsehoods? It was mostly things he admitted to and sometimes boasted about.

    3. Weird you didn’t specify a particular example, but instead blew partisan smoke.

  10. What is the differential damages to him between being called a felon (false) and being called a misdemeanant (truth)?

    1. Or what’s the difference in damages between “convicted criminal” (truth) and “felon” (false)?

  11. Maybe this is the right call at the pleading stage, but
    I think Jr will ultimately have the better argument. I mean obviously “felon” sounds worse than “misdemeanant” but you could also could call him a “criminal” or a “convict” or a “conspirator” or a “federal law violator” and they would all be true and all have essentially the same reputational harm as “felon.” Indeed, looking at misdemeanors more broadly you can say someone committed “assault” “domestic violence” “theft” “a DUI” “drug crimes” “animal abuse” “menacing” or “stalking” These all sound real bad but all have misdemeanors levels.
    I don’t think it would make the regular person feel any worse about someone else’s reputation if it were accurately stated “he is a criminal who was convicted of domestic violence and animal abuse” vs an inaccurate but simple “he’s a felon.”

    1. I cannot find specific enumeration of what West Virginia currently considers to be defamation per se, only that it varies by jurisdiction within the state, but I was greatly amused by this bit of a footnote in Mauck v. City of Martinsburg, 280 S.E.2d 216 (1981): “This statute makes such insults as imputating canine ancestry or illegitimacy actionable per se as well.”

      That first part seems to be a gross violation of the First Amendment, but the opinion does not address it further.

      1. “imputating canine ancestry”

        IOW, you can’t call someone an SOB in West Virginia.

  12. Bizarre ruling. Blankenship is doubtless a felon hundreds of times over, in that he has engaged in conduct that is proscribed by felony statutes. That he is not a *convicted* felon does not negate this fact.

    1. Well, not “doubtless” in legal terms, where a reasonable doubt came up.

      WV people do have some a priori assumptions about coal company executives. I will not say they’re wrong to assume the worst.

  13. So Donald Trump Sr. can sue all those people who’ve called him a felon? I’d actually love to see that.

    1. Well, that is clearly different, because reasons. Even for the case of people calling Trump Sr a traitor, which invokes a crime much more clearly and narrowly defined than felon.

  14. Felon: Noun.
    Meaning: Wicked Person.
    Synonyms: Convict, Delinquent, Lawbreaker, Offender, Con, Jailbird, Lifer, LOSER, Malefactor, Outlaw, Yardbird, Ex-Con.

    I agree with Jr. Blankenship is a Felon.

  15. If the defendant had been anyone other than a Trump, this case would have been dismissed on the pleadings.

    1. I don’t think this is of any reasonable doubt. The discrepancy in libel cases seems exceptionally large. Republicans, even anonymous schoolboys, can be openly slandered with impunity, while Democrats have almost complete protection from even standard rudeness.

  16. There’s nothing like having contacts in West Virginia. Colorful place.

    Blankenship and the court system there have a history.
    https://en.wikipedia.org/wiki/Caperton_v._A.T._Massey_Coal_Co.
    He spent three million dollars to put his preferred candidate on the state Supreme Court, who then (though notice I’m not alleging cause and effect) became the swing vote in his favor in a fraud case, after refusing to recuse.

    My opinion of him was not lowered by anything Trump Jr. said.

  17. Call me skeptical, but I have some doubts that the 95-year-old judge whose signature is affixed to this opinion actually wrote it.

    This is one of the thinnest claims of defamation I’ve ever seen, and many more substantial claims than this one have been summarily tossed out of court.

    This stinks of politics, and everyone can see it.

  18. Oh what a surprise, the fascists all come out to defend a Trump pos.

  19. This, and the Biden Laptop shop case, are an excellent example of how today’s defamation laws are problematic: Any judge can make or break a case by arbitrarily deciding what a word “actually” means or what someone “really meant” by it, or equally that “there’s no one anyone could identify that person” or “no one would take that description literally”.

    It’s not any easy problem to solve, but we’ve gone somewhere absurd. Almost anything else would be better than what we have now.

  20. IANAL, so my analysis is necessarily constrained and likely incorrect, but why is it unreasonable for someone to read a news story that a person had been charged with four crimes (of which three are felonies), then another news story some time later saying the person had been convicted, and then say that person is a felon? It isn’t factually true that they’re a felon, of course, but seems within the realm of reasonableness (or, at least, this layman and native English speaker’s understanding of the word).

    1. That, and in the casual use of language, any convicted criminal is referred to as a “felon”. Even if that isn’t accepted, there’s little evidence that it’s anything other than being simply incorrect.

      That’s what makes this so baffling that this wasn’t laughed out of court with attorney’s fees for bad faith.

  21. I smell dirty politics, and yes, Blankenship is a felon based on a dictionary definition.

    Jeez, who will throw out this frivolous lawsuit?

  22. Yeesh. I am no fan of the Trumps, but this borders on total frivolity. Unless there is some aspect of WV law that I do not know, this is silliness. I say it borders on felony, because Trump Jr. did refer to Blankenship as a “convicted felon.”

  23. There is nothing outside of the highest level lie that the Trumps or their cult members believe or carry out. That is what all the resources on earth are defiled from. They are rapists of everything and will destroy everything in their path.

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