WASHINGTON – The United States Supreme Court has rejected an appeal from former Massey Energy CEO Don Blankenship, who had asked the court to overturn a lower court ruling in a defamation case.
In doing so October 10, the justices left in place a Fourth Circuit Court of Appeals decision affirming a district court ruling that CNN, Fox News and other media outlets sued by Blankenship did not act with “actual malice” in covering his 2018 U.S. Senate campaign when the major news outlets referred to him as a felon.
Despite the court’s rejection of his appeal, Blankenship said he still feels a sense of victory.
“Although our government and press no doubt feel they won when my (petition for writ of certiorari) was denied, I disagree,” he told The West Virginia Record. “My efforts since 2010 have proven that every branch of our government is corrupt and that the press is no more than a fourth branch of that corrupt government.
“Americans can now see that their government strongly endorses election sabotage. There is no doubt about that. Saving America requires … its government.
Blankenship had asked the court to overturn New York Times v. Sullivan, a landmark 1964 case in which the Supreme Court ruled the First Amendment freedom of speech protections limit the ability of American public officials to sue for defamation, saying the official must prove the statement was made with actual malice and that the defendant knew the statement was false or disregarded whether it might be false.
Last month, Blankenship’s legal team filed a reply to the defendants’ brief opposing his petition for writ of certiorari, which was filed in May. Blankenship wants the justices to review a Fourth Circuit Court of Appeals ruling in the case, which focuses on the 2018 West Virginia Republican primary when Blankenship was a candidate for the U.S. Senate. The petition was docketed May 18.
“Respondents argue that this case is a wrong vehicle to overrule New York Times Co. v. Sullivan,” Blankenship’s reply begins. “This is only true if you are the respondents. What case could offer more proof of the importance of overruling Sullivan than one involving a request by two top officials in the United States government for help from the press to defeat a leading United States Senate candidate?
“There was cogent proof that those in charge of the government got help from the press. What defamation case could be more pertinent to Americans’ present day concerns that democracy is under attack and elections are unfair?”
Justice Clarence Thomas, while agreeing with the court’s rejection of Blankenship’s appeal, repeated his call for the court to overturn New York Times v. Sullivan.
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 high court had previously turned away Blankenship’s appeal of his conviction.
The respondents in the Supreme Court proceeding were 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 was 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.
