WASHINGTON – Attorneys for former Massey Energy CEO Don Blankenship have asked the U.S. Supreme Court to review a Fourth Circuit Court opinion in his defamation case against Fox News and other media outlets.
On May 15, Blankenship’s legal team filed a Petition for Writ of Certiorari. The case focuses on the 2018 West Virginia Republican primary when Blankenship was a candidate for the U.S. Senate. The petition was docketed May 18.
“The underlying lawsuit concerned weaponized defamation that derailed Mr. Blankenship’s candidacy,” Blankenship’s legal team said in a press release. “The defamation of Mr. Blankenship began two weeks before the election on April 25, 2018, when Fox News legal expert Judge Andrew Napolitano … falsely reported that Mr. Blankenship ‘went to prison for manslaughter.’
“Mr. Blankenship has never been charged or convicted of manslaughter. Fox News refused numerous requests by Judge Napolitano to timely correct the record before the primary election even after Mr. Blankenship threatened litigation.”
The questions presented in Blankenship’s petition are whether the actual malice standard imposed on public figure plaintiffs in defamation cases should be replaced and whether the framework for summary judgment in public figure defamation cases should be reformed.
According to the petition, Blankenship was a leading candidate for a Senate seat during the lead-up to the pivotal West Virginia Republican primary election on May 8, 2018. However, it says the respondents in the cases derailed his candidacy by falsely saying he was a “convicted felon.”
“Petitioner has never been convicted of a felony,” the petition states. “The damage was irreparable. No person convicted of a felony has ever been elected to the United States Senate.”
Blankenship was convicted on a misdemeanor charge of conspiring to willfully violate mine safety standards. The jury found him not guilty of securities fraud and not guilty of making false statements after the Upper Big Branch Mine disaster in Raleigh County that left 29 miners dead in 2010. Both of those charges were felonies.
The respondents in the Supreme Court proceeding are NBCUniversal, CNBC, Fox News Network, Cable News Network, MSNBC Cable, WP Company, WP Company d/b/a The Washington Post, Mediaite, FiscalNote d/b/a Roll Call, News and Guts, HD Media Company d/b/a The Charleston Gazette-Mail; American Broadcasting Companies; Tamar Auber; Griffin Connolly; Eli Lehrer; and Boston Globe Media Partners d/b/a The Boston Globe.
In February, the Fourth Circuit Court of Appeals affirmed the district court’s dismissal of a claim brought by Blankenship accusing various media outlets of defamation when they mislabeled him a “felon” following his misdemeanor conspiracy conviction. The district court had granted summary judgment to all 16 defendants after ruling they didn’t make the statements with actual malice.
"Some of the statements may have been the product of carelessness and substandard journalistic methods," Chief Judge Roger L. Gregory wrote for the Fourth Circuit. "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.
“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 is being represented by Eric Peter Early of Early Sullivan Wright Gizer & McRae in Los Angeles. In its press release, the firm says the petition gives the Supreme Court an opportunity to promote fair elections and protect democracy.
“The events of January 6 made clear that many Americans are fed up with a lying press, unfair elections and organized attacks on our democracy by political parties and government officials,” the release states. “The First Amendment does not protect false press narratives that defame election candidates and sabotage election results. It is the freedom of the people at stake, not the freedom of the press.”
According to the petition, Fox News broadcast a debate involving Blankenship and two primary opponents on May 1, 2018, during which he “declared that, if elected, he would not vote for Senator Mitch McConnell to remain as Senate Majority Leader.”
Three days later, GOP operative Karl Rove said on Fox News “he had a poll showing that Mr. Blankenship could not win the general election.”
“The poll that Rove referenced was obtained by subpoena,” the law firm release states. “There was no data about Mr. Blankenship in the poll. In fact, no defendant in the underlying case produced a poll indicating that Mr. Blankenship could not beat Democrat Senator Joe Manchin in the general election. Senator McConnell expressed his gratitude to Rove the next day.”
And the firm says McConnell and President Donald Trump appealed to Fox News Chairman Rupert Murdock “for help to beat Mr. Blankenship” less than 36 hours before the election.
“Murdoch told his top executives at Fox News in an email that ‘dumping on (Mr. Blankenship) hard might save the day,” the press release states. “The following day, multiple Fox News telecasters called Mr. Blankenship a ‘felon’ or a ‘convicted felon.’
“More than a dozen Fox News executives, officers, analysts, editors, anchors, hosts and others knew that Mr. Blankenship had never been convicted of a felony but did nothing to stop the defamatory publications.”
The firm says Trump called Blankenship the day after the primary election “to apologize and invited Mr. Blankenship to run again.”
“The actual malice standard poses a clear and present danger to our democracy,” the petition states. “A representative government cannot be sustained unless the electorate receives accurate information about election candidates and retains confidence in election fairness.
“New York Times Co. v. Sullivan … and its progeny grant the press a license to publish defamatory falsehoods that misinform voters, manipulate elections, intensify polarization, and incite unrest. Election disinformation1 undermines our nation’s capacity for genuine self-government. The Sullivan test violates the constitutional principles of equality and security of rights. …
“The framework for summary judgment is problematic as well. The clear and convincing proof requirement is extremely prejudicial to public figure plaintiffs. Moreover, judges are charged with the unworkable task of assessing the sufficiency of the evidence without determining credibility, ascribing weight, or drawing inferences therefrom. The ‘reasonable jury standard’ is in operation a proxy for a judge’s own view of the evidence’s sufficiency.”