The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Misdemeanant / Senate Candidate Don Blankenship Loses Appeal Over News Outlets' Calling Him "Felon"


From Blankenship v. NBCUniversal, LLC (4th Cir.), decided Wednesday by Chief Judge Roger Gregory, Judge Paul Niemeyer, and District Judge Patricia Tolliver Giles (E.D. Va.):

Following an unsuccessful campaign for one of West Virginia's U.S. Senate seats, Don Blankenship sued numerous media organizations and individual journalists [including Fox News, CNN, MSNBC, ABC, the Washington Post, and more], 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." …

At the outset, Defendants argue that we can affirm the district court's decisions [in favor of defendants] 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. 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….

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." Reckless disregard exists where "the defendant in fact entertained serious doubts as to the truth of its publication" but nonetheless published it. In other words, the defendant must have had at least "a high degree of awareness of … probable falsity."

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." [The court concluded Blankeship could not prove this as to any of the defendants. Here's an example:-EV]

Blankenship highlights two parts of the record that he claims create a genuine dispute of fact as to actual malice [as to Fox News]. 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." 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."

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. 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. Doocy's remark and the briefing packet might well permit a finding that a reasonable person in Cavuto's position should have known Blankenship was convicted of a misdemeanor, but actual malice requires "much more" than mere negligence.

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."

{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 was confused about how to refer to his criminal status; in the May 22 interview with Cavuto, he repeatedly called himself a "misdemeanor."} …

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….

Congratulations to Kevin Taylor Baine (Williams & Connolly), who argued on behalf of the defendants.