Blankenship v. Fox News Network, LLC

Decision Date02 February 2022
Docket NumberCivil Action 2:19-cv-00236
PartiesDON BLANKENSHIP, Plaintiff, v. FOX NEWS NETWORK, LLC; CABLE NEWS NETWORK, INC.; MSNBC CABLE, LLC; 35th INC.; WP COMPANY, LLC d/b/a The Washington Post; MEDIAITE, LLC; FISCALNOTE, INC. d/b/a Roll Call; NEWS AND GUTS, LLC; THE CHARLESTON GAZETTE-MAIL; AMERICAN BROADCASTING COMPANIES, INC.; TAMAR AUBER; GRIFFIN CONNOLLY; ELI LEHRER; and DOES 1-50 INCLUSIVE, Defendants.
CourtU.S. District Court — Southern District of West Virginia
MEMORANDUM OPINION AND ORDER

JOHN T. COPENHAVER, JR., SENIOR UNITED STATES DISTRICT JUDGE

Pending are the motions for summary judgment filed by the following defendants on May 24, 2021: News & Guts, LLC (N&G) (ECF 880); MSNBC Cable, LLC (MSNBC) (ECF 882); Cable News Network, Inc. (CNN) (ECF 884); WP Company LLC (the Washington Post) (ECF 886); American Broadcasting Companies, Inc. (ABC) (ECF 888). Also pending are the motions for summary judgment filed by defendants Fox News Network, LLC (Fox News) (ECF 890); Eli Lehrer (ECF 898); Mediaite, LLC (Mediaite) and Tamar Auber (ECF 900); Griffin Connolly and FiscalNote, Inc. (FiscalNote) (ECF 903), all on June 7, 2021 and H.D. Media, LLC (“HD Media”), publisher of the Charleston Gazette-Mail[1], on June 21, 2021 (ECF 945).[2]

I. Background

Mr Blankenship instituted this action on March 14, 2019, in the Circuit Court of Mingo County, asserting defamation and false light invasion of privacy claims against numerous media organizations, reporters, and others. See ECF 1. This action was removed based on diversity jurisdiction. See id.; 28 U.S.C. § 1332. On April 9, 2019 Mr. Blankenship amended his complaint. See ECF 14. The operative amended complaint alleges the following.

A. General Allegations

After an explosion in a West Virginia mine resulted in the death of twenty-nine miners, the United States Government initiated an investigation into the cause of the explosion, focusing on Massey Energy, which operated the mine, and Mr. Blankenship, who was Massey Energy's chief executive officer. See id. ¶¶ 7-8, 136-41. While Mr. Blankenship was not charged with the miners' deaths, the Government later charged him with three felonies, as well as one misdemeanor for conspiracy to violate federal mine safety laws. See id. ¶ 141. On December 3, 2015, a jury acquitted Mr. Blankenship of the felony charges but found him guilty of the misdemeanor offense. See id. ¶ 143. As a result, Mr. Blankenship was sentenced to one year in prison and was released in the spring of 2017. See id. ¶¶ 144-45.

In January 2018, Mr. Blankenship announced his campaign to run as a Republican for a United States Senate seat in West Virginia. See id. ¶ 146. Mr. Blankenship lost his bid for the Republican party's nomination in the primary election on May 8, 2018. See id. ¶ 190. Mr. Blankenship alleges that media coverage was responsible for his loss due to defamatory statements referring to him as a “felon” or “convicted felon, ”[3]despite that he was acquitted of the felony charges and was only convicted of the misdemeanor offense. See id. ¶¶ 152-190. Mr. Blankenship further alleges that there was an organized effort to defeat his campaign, in part through the defamatory media coverage, see id. ¶¶ 150-90, which continued after the primary election. See id. ¶¶ 191-221.

Mr. Blankenship alleges that these defamatory statements injured his reputation, prevented him from pursuing other business opportunities, and caused him to lose in the primary election. See id. ¶¶ 24, 190. In addition, Mr. Blankenship alleges that many of these statements were made in conjunction with reference to the mine disaster and therefore had the additional effect of falsely attributing to him responsibility for murder. See id. ¶¶ 23, 228, 242.

B. News and Guts, LLC

N&G is “a news, media, and production company created by journalism icon Dan Rather.”[4] Id. ¶ 53; see ECF 405 ¶ 53. On May 7, 2018, the day before the Republican primary election, N&G published an article titled Don Blankenship: A Felon, A Racist and A Possible GOP Senate Nominee.” ECF 905-2 at 2 (emphasis added); see also ECF 880-1 ¶ 3. The article generally discusses facets of Mr. Blankenship's campaign prior to the primary election and states that

Blankenship has also done time; his company, Massey Energy, was responsible for the fatal explosion at the Upper Big Branch coal mine that left 29 workers dead. He served one year in prison for the catastrophe.

ECF 905-2 at 2.[5] The byline identifies the author as “News and Guts, ” id., and the parties do not identify any individual who authored it.

C. MSNBC Cable, LLC

MSNBC is a twenty-four-hour cable news network, owned by NBCUniversal Media, which is a subsidiary of Comcast Corporation, a national telecommunications and mass-media conglomerate. See ECF 14 ¶ 35. On April 16, 2018, Chris Hayes, [6]an MSNBC reporter and host of the program All In With Chris Hayes (“All In”), posted the following on his personal Twitter account @chrislhayes: “The GOP may very well nominate a felonious coal baron found responsible for dozens of miners' deaths to [sic] as their senate nominee in WV.” ECF 882-5 at 6 (emphasis added); ECF 14 ¶ 169. The tweet referred to the West Virginia primary and Mr. Blankenship. ECF 883 at 6.

On April 23, 2018, during a live broadcast on his show All In, Mr. Hayes stated the following while discussing Mr. Blankenship's campaign advertisements: “That was a campaign ad in the year of our Lord 2018 for convicted felon Don Blankenship who spent a year in jail for his role in a mine disaster that killed 29 people, calling for Hillary Clinton to be locked up in a campaign ad in 2018.” Id. at 23 (emphasis added); ECF 14 ¶ 170.

On May 4, 2018, Joy Reid, [7] served as the substitute-host for Mr. Hayes on the MSNBC program All In. While discussing Mr. Blankenship's comments on Senator Mitch McConnell, Ms. Reid stated:

Coal baron and convicted felon Don Blankenship who spent a year in federal prison for his role in a 2010 mine explosion that killed 29 people and who's still on probation has been trying to get Republican votes in the West Virginia Senate primary by going after his own party's Senate Leader Mitch McConnell, nicknaming him “Cocaine Mitch” and referring to McConnell's father-in-law as a quote, “China person.”

ECF 882-7 at 53-54 (emphasis added); ECF 14 ¶ 172.

During the May 9, 2019, broadcast of All In, Mr. Hayes discussed Mr. Blankenship's loss in the primary election. ECF 882-5 at 40-41. He began the segment on Mr. Blankenship by stating:

[P]rimary day in America has come and gone, as has the brief and glorious political career of Don Blankenship, at least for now. He is, of course, the former coal company executive who is [sic] released from prison last year after serving a year for mine safety violations connected to an explosion that killed 29 people.

Id. at 40. After discussing Mr. Blankenship's criticisms of

Senator Mitch McConnell during the campaign, Mr. Hayes ended the Blankenship segment by stating “But thus endeth the brief and unsuccessful senate bid of convicted felon Don Blankenship.” Id. at 41 (emphasis added); see also ECF 14 ¶ 191.

D. Cable News Network, Inc.

CNN is a national twenty-four-hour news network. See ECF 14 ¶ 33. On April 29, 2018, CNN host and chief political correspondent Dana Bash, introduced a segment on the program CNN Newsroom regarding the Republican Primary in West Virginia. See ECF 885 at 7. Bash opened the segment by discussing Mr. Blankenship's conviction and explained that Mr. Blankenship “reminds us that his conviction “was just a misdemeanor.” Id.; see also ECF 884-19 at 2. After playing a video clip of an interview with Mr. Blankenship, Ms. Bash introduced two guests:

Alex Isenstadt, a Politico reporter, and Kevin McLaughlin, a Republican Party strategist. See id.; see also ECF 14 ¶ 160. During the live discussion, Mr. McLaughlin made the following comment about Mr. Blankenship: “Well, I mean, pick your poison with this guy, right? He doesn't live in West Virginia, he's a convicted felon.” ECF ¶ 160 (emphasis added); see also ECF 884-19 at 5.

Mr. McLaughlin is not an employee of CNN, nor did he work for CNN “in any capacity” or receive any compensation for his guest appearance. ECF 884-20 ¶ 6; see also ECF 884-21 at 6-7. He was invited onto the program by Ms. Bash “for a live, unscripted discussion.” Id.; see also ECF 884-21 at 7-8.

On May 2, 2018, political commentator Sarah Elizabeth Cupp hosted a round-table discussion about various political topics, including primary elections in multiple states, on the television program S.E. Cupp Unfiltered on CNN's subsidiary network HLN. See ECF 14 ¶ 171; ECF 885 at 9. When discussing the West Virginia primary election, Ms. Cupp mentioned that Mr. Blankenship had “served a year in prison” and then played a clip of Mr. Blankenship speaking at the May 1, 2018, primary debate where he stated the following about the Justice Department:

It was clear from the beginning to the end that it was a fake prosecution. I've had a little personal experience with the Department of Justice; they lie a lot, too. So, you know, it's -- it's one of those things where when you know what really goes on in the Department of Justice, you -- you wonder where --where this country is going. It's really crazy.

ECF 884-27 at 12. Ms. Cupp then responded “You want to talk about the Justice Department, I know something about the Justice Department; that's because you're a convict you're a felon. Oh, my God.” Id. (emphasis added); ECF 14 ¶ 171. Ms. Cupp has never been an employee of CNN. See ECF 884-26 ¶ 2. Instead, her work as a CNN contributor and commentator has been as an independent contractor. Id. at ¶¶ 1, 2. Her reference to Mr. Blankenship as a...

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