CHARLESTON – The state Supreme Court says a circuit judge was correct to dismiss a claim by former state Senator Richard Ojeda, who alleged a current state Senator improperly used his name and voice in political campaign ads.
Ojeda, who also later ran for U.S. Senate and president, filed a lawsuit in 2021 in Kanawha Circuit Court alleging Rupert “Rupie” Phillips improperly used his name and voice in political campaign ads. Ojeda claimed Phillips used radio ads including direct references to Ojeda during his 2020 state Senate campaign. The ads also used soundbites of Ojeda, who says Phillips never asked for a release or permission to use Ojeda’s name and voice.
“Defendants’ ads quoted, suggested and implied that the plaintiff, Mr. Ojeda, had wished cancer on candidates with political ideology other than his own,” the complaint states. “Defendant’s radio ads took statements plaintiff made after he was a victim of a violent crime and put those soundbites in his campaign ads without providing context.”
Phillips
| File photo
Ojeda, a Democrat, says Phillips, a Republican, used Ojeda’s name and reputation to advance his own interests and profit from it while defaming Ojeda and injuring his reputation. The complaint says a legally protected interest in privacy is recognized in West Virginia.
Ojeda had accused Phillips of defamation, invasion of privacy, publicity unreasonably placing another in a false light before the public, appropriation of another’s name or likeness, violation of the right of publicity and intentional infliction of emotional distress.
In December 2021, Kanawha Circuit Judge Joanna Tabit granted Phillips’ motion to dismiss the claim, saying his campaign ad was protected by the First Amendment and that Ojeda’s complaint failed to state a claim upon which relief could be granted.
Ojeda appealed to the state Supreme Court, claiming Phillips used some of Ojeda’s comments out of context, made a false light invasion of privacy on Ojeda, used Ojeda’s statements for commercial or other value and intentionally inflicted emotional distress on Ojeda.
In their May 2 memorandum decision, the Justices agreed with Tabit’s ruling.
“We determine, as the circuit court did, that respondent’s (Phillips) conduct cannot reasonably be considered outrageous,” the decision states. “Petitioner (Ojeda) identifies as a public figure. The video included language petitioner admitted was ‘crass’ or ‘extreme,’ and petitioner asked that the video be shared. Petitioner made and posted the Facebook video during an election cycle.
“It cannot be considered outrageous that the language from the video appeared in respondent’s radio ad during that same election cycle.”
Phillips also was a Republican candidate for Congress in 2018, but lost in the primary to Carol Miller. Before 2017, Phillips was a Democrat. He switched parties the same year Gov. Jim Justice did.
Chief Justice Beth Walker, Justice Bill Wooton and Justice Haley Bunn concurred in the memorandum decision. Justice John Hutchison dissented, saying he would have set the case for oral argument to "thoroughly addressed the error alleged in this appeal" and saying a formal opinion of the court was warranted. Justice Tim Armstead was disqualified from the case because of his time in the Legislature.
Ojeda was represented by Teresa Toriseva and Joshua Miller of Toriseva Law in Wheeling. Phillips was represented by Michael Carey and David Pogue of Carey Douglas Kessler & Ruby in Charleston.
West Virginia Supreme Court of Appeals case number 22-0057 (Kanawha Circuit Court case number 21-C-640)