Don Blankenship v. NBCUniversal, LLC

60 F.4th 744

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 22, 2023
• Docket: 22-1198
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-1198

DON BLANKENSHIP,

Plaintiff – Appellant,

v.

NBCUNIVERSAL, LLC; CNBC, LLC,

Defendants – Appellees,

and,

DOES 1 - 50, inclusive,

Defendant.

No. 22-1207

FOX NEWS NETWORK, L.L.C.; CABLE NEWS NETWORK, INCORPORATED; MSNBC CABLE LLC; WP COMPANY LLC, d/b/a The Washington Post; DOES 1-50, inclusive; 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, USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 2 of 44

HONORABLE ANDREW NAPOLITANO, (Ret.); NATIONAL REPUBLICAN SENATORIAL COMMITTEE; ASSOCIATED PRESS; BOSTON GLOBE MEDIA PARTNERS, LLC; BREITBART NEWS NETWORK, LLC; CLARITY MEDIA GROUP, INC.; THE WASHINGTON TIMES, LLC; TRIBUNE PUBLISHING COMPANY, LLC; LOS ANGELES TIMES COMMUNICATIONS, LLC; NEIL CAVUTO; CHRIS HAYES; SARAH ELIZABETH CUPP; BRADLEY BLAKEMAN; JOHN LAYFIELD; STEPHANIE HAMILL; KEVIN MCLAUGHLIN; LEIGH ANN CALDWELL; MICHAEL PATRICK LEAHY; JOSH DAWSEY; JENNA JOHNSON; BEN WOLFGANG; MICHAEL WARREN; CATHLEEN DECKER; NBCUNIVERSAL, LLC; CNBC, LLC; DEMOCRATIC SENATORIAL CAMPAIGN COMMITTEE; THE NATIONAL JOURNAL GROUP, LLC; WATAUGA WATCH; DOWN WITH TYRANNY; NATIONAL PUBLIC RADIO, INCORPORATED; THE GUARDIAN NEWS & MEDIA, LLC; DOW JONES & COMPANY, INCORPORATED, d/b/a Market Watch; UNIVISION COMMUNICATIONS, INCORPORATED, d/b/a Splinter News; INTERNATIONAL MEDIA INVESTMENTS FZ, LLC, d/b/a The National; THE DAILY BEAST COMPANY LLC; HEARST MAGAZINE MEDIA, INC, d/b/a Esquire Magazine; HAYRIDE MEDIA, LLC; NOWTHIS MEDIA, INC.; THE UNION LEADER CORPORATION; CAPITOL HILL PUBLISHING, INC, d/b/a The Hill; COMMIE GIRL INDUSTRIES, INC., d/b/a Wonkette; DAILY MAIL AND GENERAL TRUST PLC; VICE MEDIA, LLC; THE 74 MEDIA, INC., d/b/a The 74 Million; BREAKFAST MEDIA, LLC; THE MCCLATCHY COMPANY, d/b/a The Sacramento Bee; OBSERVER MEDIA GROUP, LLC, d/b/a The Observer; GARNETT CO. INC., d/b/a York Daily Record; SALEM MEDIA GROUP, INC., d/b/a Townhall; VERIZON MEDIA, LLC, d/b/a The Huffington Post; JOY ANN LOMENA-REID; ZACK COLMAN; LAUREN PASSALACQUA; BEN RAY; DAVID BERGSTEIN; COURTNEY RICE; JUSTIN LAVOIE; JOHN KRUSHAAR; HOWIE KLEIN; SUSAN DAVIS; BEN JACOBS; DAN RATHER; HOLLY FIGUEROA O’REILLY; JOE LOCKHART; J. W. WILLIAMSON; RACHEL KONING BEALS; CHRIS JONES; JIM HEATH; NICOLE HENSLEY; PAUL BLEST; RASHMEE ROSHAN LALL; GIDEON RESNICK; DANA MILBANK; CHARLES PIERCE; MATT HOWERTON; ELIZABETH MCDONALD; ROB PERSEY; JEN KERNS; DAVID MARTOSKO; MARTIN PENGELLY; MATT TAYLOR; KEVIN MAHNKEN; ANDREW FEINBERG; JOHN RABY; BEN BOYCHUK; AMBER PHILLIPS; BRIAN SCHWARTZ; MICHELANGELO SIGNORILE; BRUCE BIALOSKY; MIKE ARGENTO; DAVIS RICHARDSON; MARKETWATCH, INC.; 35TH INC.,

Defendants.

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No. 22-1326

BOSTON GLOBE MEDIA PARTNERS, LLC; d/b/a The Boston Globe; DOES 1 - 50, inclusive,

Defendants – Appellees.

Appeals from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., Senior District Judge. (2:20-cv-00278; 2:19-cv-00236; 2:19-cv-00589)

Argued: December 7, 2022 Decided: February 22, 2023

Before GREGORY, Chief Judge, NIEMEYER, Circuit Judge, and Patricia Tolliver GILES, District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Niemeyer and Judge Giles joined.

ARGUED: Eric Peter Early, EARLY SULLIVAN WRIGHT GIZER & MCRAE LLP, Los Angeles, California, for Appellant. Kevin Taylor Baine, WILLIAMS & CONNOLLY LLP, Washington, D.C., for Appellee. ON BRIEF: Jeremy J.F. Gray, Lisa M. Zepeda, Padideh Zargari, EARLY SULLIVAN WRIGHT GIZER & MCRAE LLP, Los Angeles, California; Jeffrey S. Simpkins, SIMPKINS LAW, Williamson, West Virginia, for Appellant. Stephen J. Fuzesi, Gloria K. Maier, Matthew D. Heins, Katelyn R. Adams, WILLIAMS & CONNOLLY LLP, Washington, D.C., for Appellees American Broadcasting Companies, Inc.; Cable News Network, Inc.; Fox News Network LLC; MSNBC Cable, LLC; WP Company LLC; CNBC, LLC; and NBCUniversal, LLC. Kelli L. Sager, Los Angeles, California, Eric Feder, DAVIS WRIGHT TREMAINE LLP,

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Washington, D.C., for Appellee American Broadcasting, Inc. Elbert Lin, HUNTON ANDREWS KURTH LLP, Richmond, Virginia, for Appellee Fox News Network LLC. Jared M. Tully, Mary Claire Davis, Charleston, West Virginia, Ryan W. Goellner, Cincinnati, Ohio, Kevin T. Shook, FROST BROWN TODD LLC, Columbus, Ohio, for Appellees MSNBC Cable, LLC; CNBC, LLC; and NBCUniversal, LLC. Lonnie C. Simmons, DIPIERO SIMMONS MCGINLEY & BASTRESS, PLLC, Charleston, West Virginia, for Appellees Mediaite, LLC and Tamar Auber. Robert M. Bastress, III, DIPIERO SIMMONS MCGINLEY & BASTRESS, PLLC, Charleston, West Virginia, for Appellee The Charleston Gazette-Mail. Jennifer S. Jackman, WHITEFORD, TAYLOR & PRESTON, LLP, Washington, D.C., for Appellee Eli Lehrer. Allen M. Gardner, LATHAM & WATKINS LLP, Washington, D.C., for Appellees Fiscal Note, Inc. and Griffin Connolly. Chris Vlahos, Jenna Harris, RITHOLZ LEVY FIELDS, LLP, Nashville, Tennessee; William D. Wilmoth, STEPTOE & JOHNSON, PLC, Wheeling, West Virginia, for Appellee News and Guts, LLC.

ARGUED: Eric Peter Early, EARLY SULLIVAN WRIGHT GIZER & MCRAE LLP, Los Angeles, California, for Appellant. Jonathan M. Albano, MORGAN LEWIS & BOCKIUS, LLP, Boston, Massachusetts, for Appellees. ON BRIEF: Jeremy J.F. Gray, Lisa M. Zepeda, Padideh Zargari, EARLY SULLIVAN WRIGHT GIZER & MCRAE LLP, Los Angeles, California; Jeffrey S. Simpkins, SIMPKINS LAW OFFICE PLLC, Williamson, West Virginia, for Appellant. Andrew M. Buttaro, MORGAN, LEWIS & BOCKIUS LLP, Boston, Massachusetts; David K. Henderson, Barbara A. Samples, HENDRICKSON & LONG, PLLC, Charleston, West Virginia, for Appellees.

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GREGORY, Chief Judge:

Following an unsuccessful campaign for one of West Virginia’s U.S. Senate seats,

Don Blankenship sued numerous media organizations and individual journalists, 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.”

Most of the parties Blankenship initially named as Defendants were dismissed early

in the litigation, and the sixteen Defendants who remained moved for summary judgment

in their respective cases. The district court granted summary judgment to all sixteen

Defendants after concluding they did not make the statements with actual malice. Those

cases are now before us via two appeals: a consolidated appeal from the district court’s

decisions granting summary judgment to fifteen Defendants, and a separate appeal from

the district court’s grant of summary judgment to the Boston Globe. Although we heard

oral argument on the appeals in seriatim, we consolidate the cases into this single opinion.

Finding no error, we affirm.

I.

A.

Don Blankenship previously served as the CEO of Massey Energy Company, a large

coal producer. During his tenure as CEO, a 2010 explosion at one of Massey Energy’s

mines in West Virginia, the Upper Big Branch Mine, killed twenty-nine miners.

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Blankenship was indicted on several federal charges in the wake of the Upper Big Branch

Mine disaster, including multiple felony counts. A jury ultimately convicted him of

conspiracy to violate federal mine safety laws and regulations, a Class A misdemeanor, but

acquitted him of the felony charges. See United States v. Blankenship, 846 F.3d 663, 666–

67 (4th Cir. 2017) (affirming conviction), cert. denied, 138 S. Ct. 315 (2017). Blankenship

was sentenced to one year in federal prison (the statutory maximum), with another year of

supervised release, and was fined $250,000. He served his sentence at the Taft Correctional

Institution in California; of the approximately 2,400 inmates in the prison, Blankenship

maintains he was the only one who was not serving a sentence for a felony conviction.

Blankenship was released from prison in 2017.

In January 2018, while still on supervised release, Blankenship announced his plans to

run for the U.S. Senate in West Virginia. As a candidate in the Republican primary, he

attracted public attention for comments he made about Senator Mitch McConnell and then-

Secretary of Transportation Elaine Chao. Then-President Trump, Senator McConnell, and

other prominent Republicans publicly criticized Blankenship and urged West Virginians

to support another candidate in the May 8 primary election. Blankenship ultimately lost

the primary election, finishing in third place. He later tried to run in the general election

as the Constitution Party candidate but was unable to get on the ballot.

During Blankenship’s Senate campaign, numerous media organizations and

journalists broadcast or published statements that referred to him as a “felon” or “convicted

felon,” even though Blankenship’s conviction was classified as a misdemeanor.

Defendants are sixteen of those organizations and individuals: Fox News, MSNBC, CNN, the

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Washington Post, ABC, News & Guts, Eli Lehrer, Mediaite, Tamar Auber, Griffin Connolly,

FiscalNote, HD Media, NBCUniversal, CNBC, 35th PAC, and the Boston Globe.

Although Defendants’ references to Blankenship’s criminal history closely resemble one

another, we must consider the facts surrounding each individual statement in turn.

1.

Fox News broadcast several statements that referred to Blankenship as a felon or

otherwise misstated his criminal record. First, during an April 25, 2018 appearance on Fox

News’s Outnumbered program, Andrew Napolitano, a Senior Judicial Analyst for the

network, remarked that Blankenship “went to jail for Manslaughter after people died in a

mine accident.” J.A. 3878. 1 Later that day, Blankenship’s campaign contacted Fox News

and demanded a correction because Blankenship had been convicted of conspiracy to

violate federal mine safety laws and regulations, not manslaughter. Upon learning of his

mistake, Napolitano expressed a desire to appear on the network to set the record straight.

On April 30, his producer emailed producers of multiple Fox News programs to ask if

Napolitano could discuss the details of Blankenship’s conviction, including one specific

request to correct the record, but the producers of those shows were interested in different

topics and did not grant his requests.

On May 3, Antonia Ferrier—an aide to Senator McConnell—emailed

Martha MacCallum, the host of Fox News’s The Story with Martha MacCallum. Ferrier

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in the consolidated appeal. Citations to the “G.J.A.” refer to the Joint Appendix filed by the parties in the separate Boston Globe appeal. 7 USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 8 of 44

wrote that McConnell was “pretty ticked” about Blankenship making public comments

attacking Chao, McConnell’s wife. J.A. 3928. On May 4, Fox News contributors

Karl Rove and Tammy Bruce appeared on The Story and criticized Blankenship, but did

not mischaracterize his conviction. The next day, McConnell emailed Rove and thanked

him for his “comments on Martha’s show last night.” J.A. 3806.

On May 6, Fox News Chairman Rupert Murdoch emailed two senior executives at

the network, writing: “Both Trump and McConnell appealing for help to beat unelectable

former mine owner who served time. Anything during day helpful but Sean and Laura

dumping on him hard might save the day.” 2 J.A. 4052. Earlier that day, Murdoch had

received an email stating that “convicted felon” Don Blankenship was “surging in the GOP

primary polling,” J.A. 4050, but Murdoch did not repeat the “convicted felon” language in

his email to the two executives.

On May 7, anchor Neil Cavuto discussed Blankenship during a telecast of his Fox

News show Cavuto Coast to Coast. Returning from a commercial break, Cavuto opened:

“The president warning Republicans, you know what, we’re going to lose West Virginia if

Don Blankenship is allowed to win the primary and he does win the primary. Don Blankenship,

of course, is arguing that he’s the best qualified for this. Of course, he’s a convicted felon.”

J.A. 3466. A couple weeks earlier, on April 25, Fox News correspondent Peter Doocy had

appeared alongside Cavuto on the show Your World with Neil Cavuto and noted that

2 We understand that Murdoch was referring to Sean Hannity and Laura Ingraham, who anchored evening programs on Fox News at the time. Blankenship does not allege that either Hannity or Ingraham ever defamed him. 8 USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 9 of 44

Blankenship “recently served a year in jail on a misdemeanor conviction tied to his role in

a mine collapse that killed 29 people.” J.A. 3861–62. In addition, on May 2, Cavuto had

received a ten-page briefing packet about the 2018 primary elections that described

Blankenship as seeking “vindication for his 2015 conviction on a misdemeanor charge

related to the Upper Big Branch Mine explosion that killed 29 miners.” J.A. 3867.

Between May 7 and May 9, four other Fox commentators also referred to

Blankenship as a “felon” or “convicted felon” on air. During the May 7 broadcast of The

Evening Edit on Fox Business Network, John Layfield described Blankenship as a “felon

who’s got a probation officer, who could end up in Congress.” J.A. 3567. Bradley Blakeman

also called Blankenship a “felon” during that same show. J.A. 3564. On the May 7

broadcast of Fox Business Network’s Making Money, Stephanie Hamill referred to

Blankenship as a “convicted felon.” J.A. 3570. And on May 9, the day after the West

Virginia Senate primary, Elizabeth MacDonald called Blankenship a “felon” on The

Evening Edit. J.A. 3573.

On May 22, two weeks after the primary election, Cavuto interviewed Blankenship

on air during Your World. The interview included the following exchange:

BLANKENSHIP: And it’s very disappointing that the news media and this network as well continues to tell people I’m a felon, which—I’ve never been convicted of a felony. I’m probably less likely to be a felon than anyone, given that I was investigated for four and a half years and they couldn’t find anything.

CAVUTO: So what are you if you’ve served time in jail?

BLANKENSHIP: A misdemeanor [sic]. The only misdemeanor to serve time at a felon prison in California. So I think that should tell us something

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as well when they’re sending misdemeanors to prison so they can’t continue to communicate for a year is—is pretty telling.

CAVUTO: You know, there are those who would disagree with that portrayal, sir. Saying that it’s a little bit bigger than a misdemeanor when 29 people are killed in a mining accident in 2010 for which you—or your company, more to the point, was held accountable for violating safety standards and the rest. You don’t agree with that, and obviously you felt that way afterwards. But that would be a little more than a misdemeanor, right?

J.A. 3552–53, 5671. Immediately after the interview, Napolitano appeared on Your World.

He told Cavuto: “Let me say first that Don Blankenship is correct. I once inadvertently

said on air that he was a convicted felon. 3 He was not. He was acquitted of the charges,

the felony charges against him. The only thing he was convicted of was a misdemeanor.”

J.A. 5669. Cavuto responded, “So, just serving a year in jail doesn’t make you a convicted

felon?” Id. Napolitano replied, “That’s correct.” J.A. 5670.

2.

The record shows that two MSNBC anchors—Joy Reid and Chris Hayes—referred to

Blankenship as a “convicted felon.” Reid made such a statement while she was guest-hosting

the show All In with Chris Hayes on May 4, 2018. For his part, Hayes described Blankenship

as a “convicted felon” during the April 23 and May 9, 2018 broadcasts of All In. Hayes also

posted a tweet to his personal Twitter account on April 16, 2018, that called Blankenship “a

felonious coal baron found responsible for dozens of miners’ deaths.” J.A. 811.

3 There is no evidence that Napolitano ever called Blankenship a “convicted felon” on air. The only misstatement by Napolitano in the record is his April 25 remark that Blankenship was convicted of manslaughter. That appears to be the statement Napolitano was referring to when speaking to Cavuto on May 22. 10 USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 11 of 44

Hayes had some familiarity with Blankenship prior to 2018. He interviewed

Blankenship in 2014, and he exchanged emails about Blankenship with members of the All

In staff in 2015 and 2016. In December 2015, Denis Horgan, All In’s executive producer,

sent Hayes and other staff members a New York Times article that reported on

Blankenship’s conviction. Hayes replied: “He only got nailed on the misdemeanor, tho.

Probably not a day in jail.” J.A. 845. That email exchange predated Blankenship’s

sentencing. Later, in an April 2016 email to Hayes and other All In staff, producer

Brendan O’Melia wrote that “[o]ur old friend Don Blankenship [is] going to the cooler for

a year.” J.A. 903. Hayes also discussed Blankenship during the November 29, 2017

telecast of All In. During that show, All In displayed as on-screen graphics the headlines

of two articles about Blankenship. The bodies of those articles—but not the headlines—

briefly noted that he was convicted of a misdemeanor offense. Hayes apparently did not

mention Blankenship’s criminal record during the November 29 show.

In a recorded off-air conversation on April 23, 2018—hours before Hayes’s first on-

air statement calling Blankenship a felon—Hayes and All In producer Brian Montopoli

discussed plans for a segment of that night’s show. Montopoli suggested discussing “our

old buddy Don Blankenship’s ad,” in which Blankenship made calls to arrest and imprison

Hillary Clinton. J.A. 492. In response, Hayes remarked, “[T]hat is, like, convicted felon

. . . Don Blankenship . . . the man who was found, you know, to have criminally violated

the law in the mine that he owned that killed, you know, all those miners.” Id. Montopoli

replied, “Yeah.” Id.

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On May 10, 2018, one day after Hayes’s second on-air reference to Blankenship as a

“convicted felon,” an MSNBC viewer emailed Hayes and stated: “You mentioned that

Blankenship was a Felon on your [show]. Unfortunately it was a misdemeanor[.] Go figure!”

J.A. 847. Hayes replied, “yes! Caught that after the show, but you’re r[i]ght.” Id. There is no

evidence in the record that Hayes, Reid, or others at MSNBC publicly corrected the “felon”

statements, or that Blankenship ever contacted the network to request a correction.

3.

Blankenship points to four occasions where CNN commentators made similar

statements during television broadcasts. The first occurred during the April 29, 2018

broadcast of CNN Newsroom. While discussing the West Virginia Senate primary, host

Dana Bash told the audience that Blankenship “reminds us [his conviction] was just a

misdemeanor.” J.A. 1383. However, a few minutes later, commentator Kevin McLaughlin

referred to Blankenship as a “convicted felon.” J.A. 1386. Bash did not correct

McLaughlin’s statement on air.

S.E. Cupp, the host of the CNN show S.E. Cupp Unfiltered, called Blankenship a

“felon” on two different occasions. First, on May 2, 2018, Unfiltered played a clip of

Blankenship speaking during a West Virginia debate, which showed him saying, “I’ve had

a little personal experience with the Department of Justice; they lie a lot too.” J.A. 1458.

After the clip played, Cupp reacted by saying, “that’s because you’re a convict, you’re a

felon. Oh my God.” Id. Then, on the May 8 telecast of Unfiltered, Cupp remarked, “In

case you missed it, a former coal baron and convicted felon is running for Senate in West

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Virginia.” J.A. 1469. Lastly, CNN commentator Joe Lockhart referred to Blankenship as

a “convicted felon” during the May 7 broadcast of CNN Tonight. J.A. 1428.

There is no evidence in the record that Blankenship contacted CNN to request

corrections for any of these statements, or that CNN issued a correction.

4.

Blankenship takes issue with statements in two stories published by the Washington

Post. On July 25, 2018, the Washington Post published an online article about Republican

primary candidates, written by reporters Jenna Johnson and Josh Dawsey, which described

Blankenship as “a former coal mine owner and felon.” J.A. 2051. The same article

appeared in the Post’s print edition two days later. The record indicates that Dawsey

neither wrote nor reviewed the part of the article that contained this language.

A couple weeks later, on August 9, the Washington Post published a blog post by

Amber Phillips that identified Blankenship as one of three “convicted felons” who ran for

office in 2018. J.A. 2079. In an earlier story published on May 1, 2018, Phillips had

reported that Blankenship “just finished a year in prison after an explosion at one of his

mines killed 29 people” and that he “was convicted on a misdemeanor for conspiring to

violate mine safety laws.” J.A. 2298. Between May 2 and May 6, Phillips also received

three mass-distribution emails that referred to Blankenship’s conviction as a misdemeanor.

These emails contained detailed updates and commentary on the West Virginia primary

and other political topics, and they made only passing references to Blankenship’s

conviction. One of the three included the transcript for an entire episode of Face the

Nation, a weekly political news program on CBS.

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There is no record evidence that Blankenship ever contacted the Washington Post

to request a correction. The Post issued corrections to both stories after learning of

Blankenship’s lawsuit in 2019.

5.

Blankenship’s claims against ABC revolve around a single story. On July 23, 2018,

ABC published an article by reporter John Verhovek that discussed Blankenship’s

intentions to run for the Senate as a third-party candidate after he lost the Republican

primary. The article referred to Blankenship as “the former coal baron and convicted

felon” and explained that he “was convicted in 2015 for conspiracy to violate mine safety

and health standards in the aftermath of the 2010 Upper Big Branch Mine disaster that

resulted in the death of 29 miners.” J.A. 2576. ABC posted links to the article on Twitter

and Facebook with descriptions that repeated the “convicted felon” language, and it used

the same language in a description of the article in a daily politics email newsletter ABC

distributed on July 24.

Verhovek had reported on or discussed Blankenship’s criminal history on a few

earlier occasions. In a March 29, 2018 email to a colleague, Verhovek similarly referred

to Blankenship as a “convicted felon.” J.A. 2577. However, in early May, Verhovek had

authored or co-authored three articles for ABC which noted that Blankenship was

convicted of a misdemeanor. Also in early May, Verhovek had received multiple emails

from his ABC colleague Meridith McGraw that provided updates on the West Virginia

primary campaign. The emails, which McGraw sent to an internal email distribution list,

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made passing references to Blankenship’s conviction on a misdemeanor offense. The

distribution list received dozens of similar political updates each day.

Blankenship’s campaign contacted McGraw to request a correction almost

immediately after ABC published the July 23 article. In a text to Verhovek, McGraw

explained, “Don Blankenship is not a convicted felon. He was found guilty of a

misdemeanor charge. . . . It’s confusing because he was sent to a federal prison for his

misdemeanor charge. We should correct it!” J.A. 2736. Verhovek responded, “Meridith

can you send me exact language on this? Blankenship was sent to federal prison but he

was not convicted of a felony?” J.A. 2735. Verhovek later apologized to McGraw for the

mistake, writing: “Sorry about Blankenship, I thought I had it right on that or [had] seen it

in an earlier story, that’s my bad.” J.A. 2812.

6.

On appeal, Blankenship devotes almost no attention to the remaining ten Defendants

in the consolidated action: News & Guts, Eli Lehrer, Mediaite, Tamar Auber,

Griffin Connolly, FiscalNote, HD Media, NBCUniversal, CNBC, and 35th PAC. Like the

others, these Defendants published articles during the 2018 Senate campaign cycle that

described Blankenship as a “felon” or “convicted felon.”

7.

Lastly, Blankenship’s claims against the Boston Globe focus on a single published

article. The Globe had an agreement with the Associated Press (“AP”) that allowed it to

republish AP wire stories. On May 21, 2018, the AP distributed a wire story written by

John Raby that discussed Blankenship’s possible third-party candidacy in the general

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election. Raby’s story referred to Blankenship as a “convicted ex-coal baron” and

explained that he “spent a year in federal prison for violating safety regulations in a 2010

mine explosion that killed 29 miners.” G.J.A. 356–59.

The Globe published a condensed version of the AP story on May 22. While editing

the original story, a Globe copy editor named Daniel Coleman changed the phrase

“convicted ex-coal baron” to “convicted felon and former coal baron” and removed the

description of Blankenship’s prison sentence. G.J.A. 346. The Globe had previously

published three articles which correctly reported that Blankenship was convicted of a

misdemeanor but acquitted of felony charges. Those articles are dated December 5, 2015,

April 7, 2016, and May 8, 2018.

After Blankenship filed this lawsuit, the Globe published a correction clarifying that

Blankenship’s conviction was a misdemeanor.

B.

In March 2019, Blankenship brought a diversity action in the federal district court

against more than 100 media organizations, political action committees, and individuals.

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 voluntarily dismissed several

original Defendants. In March 2020, the district court dismissed his claims against many

more Defendants (including most individual journalists and commentators) for lack of

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personal jurisdiction, and dismissed his claims against NBCUniversal and CNBC without

prejudice for insufficient service of process. However, the court denied the remaining

Defendants’ Rule 12(b)(6) motions to dismiss. Shortly thereafter, Blankenship refiled a

separate action against NBCUniversal and CNBC. The district court adjudicated both

cases in tandem.

The parties conducted extensive discovery, during which Blankenship deposed

numerous journalists and other employees affiliated with the organizational Defendants.

Nearly all the journalists who made the challenged statements submitted declarations or

were deposed, and while the precise contours of their testimony varied, all who provided

such testimony asserted that they did not realize their descriptions of Blankenship as a felon

were inaccurate at the time. After discovery concluded, the remaining fifteen Defendants

moved for summary judgment.

In three different opinions issued in February 2022, the district court granted

summary judgment to all fifteen Defendants. As to Blankenship’s defamation claims, it

first concluded that the Defendants’ statements were materially false because they were

“based on a provably false assertion of fact,” and that they constituted defamation per se

because they falsely attributed a felony offense to Blankenship that “carries significantly

greater legal consequences than a misdemeanor.” J.A. 5640 (cleaned up); see J.A. 5689,

5764. But after an extensive analysis of the record, it determined that Blankenship failed

to offer sufficient evidence of actual malice to survive summary judgment.

Because Blankenship’s false light invasion of privacy and civil conspiracy claims

also required him to prove actual malice, the district court granted the Defendants summary

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judgment on those claims as well. Blankenship timely appealed the decisions, which were

consolidated in a single appeal.

Blankenship filed a separate action against the Boston Globe in West Virginia state

court, alleging defamation and false light invasion of privacy (but not civil conspiracy).

The Globe removed the case to the district court based on diversity of citizenship.

Following discovery, the Globe moved for summary judgment. As it did in the related

cases, the district court granted summary judgment to the Globe after concluding

Blankenship failed to show that the Globe acted with actual malice when publishing the

inaccurate statement. Blankenship timely appealed.

II.

This Court reviews de novo a district court’s decision to grant summary judgment.

Ballengee v. CBS Broad., Inc., 968 F.3d 344, 349 (4th Cir. 2020). At the summary

judgment stage, we view all facts and make all reasonable inferences in favor of the

nonmoving party. Id. “Summary judgment is warranted ‘if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “Facts are material when they might affect

the outcome of the case, and a genuine issue exists when the evidence would allow a

reasonable jury to return a verdict for the nonmoving party.” News & Observer Publ’g Co.

v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (internal quotation

marks omitted). A party is entitled to summary judgment when “the nonmoving party has

18 USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 19 of 44

failed to make a sufficient showing on an essential element of [his] case with respect to

which [he] has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

III.

We start with Blankenship’s defamation claims, which, like his other claims, rely

on West Virginia law. To prevail in a defamation action in West Virginia, 4 a public-figure

plaintiff like Blankenship must establish that the statements (1) contain a provably false

assertion of fact and (2) were published with actual malice. Pritt v. Republican Nat’l

Comm., 557 S.E.2d 853, 861–62 (W. Va. 2001). 5 A plaintiff must prove actual malice by

clear and convincing evidence. Id. at 862.

At the outset, Defendants argue that we can affirm the district court’s decisions 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. See Masson v. New Yorker

4 Technically, Blankenship’s claims involving written statements constitute libel claims, but the relevant elements for both actions are identical. See Greenfield v. Schmidt Baking Co., 485 S.E.2d 391, 393–94 (W. Va. 1997). For simplicity, we follow the parties’ approach and use the term “defamation” to refer to all claims. 5 In defamation cases involving plaintiffs who are candidates for public office, West Virginia law appears to additionally require that the defendant intended to injure the plaintiff by publishing the statement. See Pritt, 557 S.E.2d at 861. Defendants argue that Blankenship also failed to present sufficient evidence of an intent to injure. Because we conclude that Blankenship failed to create a jury question that any Defendant acted with actual malice, we do not need to address the intent-to-injure element. 19 USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 20 of 44

Mag., Inc., 501 U.S. 496, 516–17 (1991) (explaining that falsity turns on “the substance,

the gist, the sting” of the words the defendant used). 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.

West Virginia’s actual malice standard comports with First Amendment limitations

on state defamation law, as articulated by the Supreme Court in N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964), and its progeny. See Havalunch, Inc. v. Mazza, 294 S.E.2d 70, 73

(W. Va. 1983). 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.” N.Y. Times, 376 U.S. at 279–80. Reckless disregard exists where “the

defendant in fact entertained serious doubts as to the truth of its publication” but

nonetheless published it. St. Amant v. Thompson, 390 U.S. 727, 731 (1968). In other

words, the defendant must have had at least “a high degree of awareness of . . . probable

falsity.” Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 692 (1989).

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.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 257 (1986). Whether the evidence in the record is sufficient to permit

such a finding is a question of law. Harte-Hanks, 491 U.S. at 685. We have explained that

creating a jury question on actual malice “is no easy task.” Carr v. Forbes, Inc., 259 F.3d

273, 282 (4th Cir. 2001). To survive summary judgment, Blankenship must offer

20 USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 21 of 44

“concrete” and “affirmative evidence” of actual malice, Liberty Lobby, 477 U.S. at 256–

57, and that evidence must produce an “abiding conviction” that actual malice is “highly

probable,” Cannon v. Peck, 36 F.4th 547, 566 (4th Cir. 2022). On appeal, we

independently review the entire record to determine whether Blankenship has made this

showing. Harte-Hanks, 491 U.S. at 688; Carr, 259 F.3d at 283.

Blankenship argues that the district court made a few recurring errors in its summary

judgment decisions. In his view, the court erred by making improper credibility

determinations, drawing inferences in favor of Defendants rather than Blankenship, and failing

to consider the entire record when evaluating his defamation claims. However, after

independently reviewing the full record, we conclude the district court correctly held that

Blankenship has not presented sufficient evidence that any Defendant acted with actual malice.

On appeal, Blankenship devotes the most attention to his defamation claims against

Fox News, so we begin there. As an initial matter, Blankenship no longer challenges

Andrew Napolitano’s statement that Blankenship went to jail for manslaughter. Instead,

Blankenship focuses on the inaccurate on-air statements made by Neil Cavuto and four

other Fox News commentators in the days leading up to the West Virginia primary. We

conclude that the record evidence would not permit a reasonable jury to find, by clear and

convincing evidence, that these commentators or any other Fox News employees made

these statements with actual malice.

21 USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 22 of 44

Cavuto referred to Blankenship as a “convicted felon” once, during the May 7, 2018

broadcast of his show Cavuto Coast to Coast. In a deposition, Cavuto testified that he did

not realize this statement was inaccurate at the time, explaining: “It was incorrect, but it

was inadvertent. I did not know there was a distinction between going to jail over a felony

or going to jail over a misdemeanor, just that he went to jail for a year.” J.A. 3556. At the

summary judgment stage, we do not credit Cavuto’s self-serving testimony about his state

of mind over contrary evidence. See Liberty Lobby, 477 U.S. at 255. At the same time,

though, Blankenship cannot avoid summary judgment “by merely asserting that the jury

might, and legally could, disbelieve the defendant’s denial of . . . legal malice.” Id. at 256.

Rather, the question is whether Blankenship has offered enough concrete evidence to

permit a jury to find, by clear and convincing evidence, that Cavuto acted with actual

malice. He has not.

Blankenship highlights two parts of the record that he claims create a genuine

dispute of fact as to actual malice. 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.” J.A. 3861–62. 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.” J.A. 3867.

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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. St. Amant, 390 U.S. at 731. 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. See Zerangue

v. TSP Newspapers, Inc., 814 F.2d 1066, 1071–72 (5th Cir. 1987) (defendant newspaper

printed a false story a second time, even though the editors responsible for the second story

arguably knew the newspaper had retracted the first one); Golden Bear Distrib. Sys. of Tex.,

Inc. v. Chase Revel, Inc., 708 F.2d 944, 950 (5th Cir. 1983) (author of allegedly defamatory

story had contemporaneous notes that “clearly indicate[d] her awareness” that her story

was false). 6 Doocy’s remark and the briefing packet might well permit a finding that a

6 Blankenship also cites to Palin v. N.Y. Times Co., 940 F.3d 804 (2d Cir. 2019). But that case was decided at the motion-to-dismiss stage and is inapposite here. See id. at 816 (holding only that the plaintiff plausibly alleged that the defendant acted with actual malice).

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reasonable person in Cavuto’s position should have known Blankenship was convicted of

a misdemeanor, but actual malice requires “much more” than mere negligence. Hatfill v.

N.Y. Times Co., 532 F.3d 312, 325 (4th Cir. 2008).

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.” 7

7 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 (Continued) 24 USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 25 of 44

Cavuto’s on-air interview with Blankenship on May 22, 2018, reinforces this

conclusion. When Blankenship emphasized that he had never been convicted of a felony,

Cavuto asked, “So what are you if you’ve served time in jail?” J.A. 3552, 5671. Cavuto

then asked the same question to Napolitano: “So serving a year in jail doesn’t make you a

convicted felon?” J.A. 3554–55. These exchanges, which took place just two weeks after

Cavuto’s May 7 statement, indicate that Cavuto had not understood the inaccuracy of his

remark. See Zerangue, 814 F.2d at 1071 (“The fact that [an editor] had to ask [the plaintiff]

what was inaccurate about the story when [the plaintiff] called to protest tends to indicate

that [the editor] did not know of the inaccuracy.”). This evidence underscores that Cavuto

was confused about Blankenship’s criminal status because of the one-year prison sentence,

and it precludes a finding by clear and convincing evidence that Cavuto seriously doubted

the truth of his May 7 statement.

Less analysis is required for the statements made by the four other Fox

News commentators: John Layfield, Bradley Blakeman, Stephanie Hamill, and

Elizabeth MacDonald. Blankenship points to no direct evidence of knowledge that rebuts

the commentators’ testimony that they believed their statements were accurate at the time.

He cannot avoid summary judgment simply by asserting that the jury could disbelieve their

testimony. Liberty Lobby, 477 U.S. at 256.

was confused about how to refer to his criminal status; in the May 22 interview with Cavuto, he repeatedly called himself a “misdemeanor.” J.A. 5671. 25 USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 26 of 44

In an attempt to create a jury question, Blankenship claims the record contains

sufficient circumstantial evidence of actual malice. “Although courts must be careful not

to place too much reliance on such factors, a plaintiff is entitled to prove the defendant’s

state of mind through circumstantial evidence[.]” Harte-Hanks, 491 U.S. at 668. Here,

Blankenship focuses on (1) the emails from Rupert Murdoch and the McConnell aide that

requested negative coverage of his campaign, and (2) Fox News’s initial failure to retract

Napolitano’s misstatement.

From the two emails, it is safe to conclude that Murdoch and McConnell wished to

damage Blankenship’s Senate candidacy. But “while motive [or animus] can be relevant

to the actual malice inquiry, it is not dispositive standing alone.” Cannon, 36 F.4th at 568

(cleaned up); see Hinerman v. Daily Gazette Co., 423 S.E.2d 560, 573 (W. Va. 1992). As

we have explained, “many publications set out to portray a particular viewpoint or even to

advance a partisan cause. Defamation judgments do not exist to police their objectivity.”

Reuber v. Food Chem. News, Inc., 925 F.2d 703, 716 (4th Cir. 1991) (en banc).

Here, the two emails do not establish actual malice because Blankenship fails to show

a sufficient nexus between those communications and the Fox News commentators’ false

statements. Murdoch’s May 6 email to the two Fox News senior executives read: “Both

Trump and McConnell appealing for help to beat unelectable former mine owner who served

time. Anything during day helpful but Sean and Laura dumping on him hard might save the

day.” J.A. 4052. This does not suggest that Murdoch instructed anchors to falsely call

Blankenship a felon or even implied that they should. The same is true of the McConnell

aide’s May 3 email to Martha MacCallum, which made a tacit request for negative coverage

26 USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 27 of 44

of Blankenship but did not raise the issue of his criminal history. Karl Rove and

Tammy Bruce’s comments on MacCallum’s show the following day were harshly critical of

Blankenship, but they did not mischaracterize his conviction—Blankenship does not allege

that Rove or Bruce defamed him. To be sure, the various Fox News statements calling him

a felon all occurred shortly after these two emails were sent, but that temporal relationship,

without more, is not nearly enough. In defamation cases, “the state of mind required for

actual malice [must] be brought home to the persons in the . . . organization having

responsibility for the publication,” N.Y. Times, 367 U.S. at 287, and Blankenship offers no

concrete evidence connecting the emails to the challenged statements.

Lastly, Blankenship emphasizes that Fox News producers refused to allow

Napolitano to appear on air to correct his misstatement. We have explained that a

publisher’s failure to retract a statement upon request generally “is not probative of [the

speaker’s] state of mind at the time of publication.” Fairfax v. CBS Corp., 2 F.4th 286,

295 (4th Cir. 2021). Even if the network’s reticent response to Napolitano’s requests is

relevant, it is far from clear and convincing evidence that Cavuto and the four other

commentators later made their statements with actual malice. Put simply, Blankenship

offers no non-speculative reason to believe there was any connection between the

producers’ actions and the allegedly defamatory statements.

For these reasons, we conclude that Blankenship’s failure to provide sufficient

evidence of actual malice defeats his defamation claims against Fox News.

27 USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 28 of 44

Next, we proceed to the defamation claims against MSNBC, which focus on

Chris Hayes’s two on-air statements describing Blankenship as a “convicted felon.” 8 In a

deposition, Hayes testified that he believed his comments were accurate when he made

them, asserting: “I knew [Blankenship] had done a year in federal prison, and I just thought

that meant he had been convicted of a felony.” J.A. 515.

In an attempt to create a genuine dispute as to Hayes’s knowledge, Blankenship

highlights two events. The first is the November 29, 2017 broadcast of All In, during which

MSNBC displayed the titles of two news articles about Blankenship as on-screen graphics.

The body of each article accurately identified Blankenship’s conviction as a misdemeanor,

but that detail was not shown on screen or discussed during the November 29 show. Even

viewing the facts in the light most favorable to Blankenship, we cannot infer that Hayes

read the two articles in their entirety, or that another staffer read them and relayed the

information about Blankenship’s conviction to Hayes. While Hayes noted that MSNBC

had relied on the articles as sources, that does not mean he engaged with the specific

8 Blankenship argues in his reply brief that Joy Reid also acted with actual malice when she described him as a convicted felon during a May 4, 2018 telecast. But he failed to make that argument in his opening brief, and “an issue first argued in a reply brief is not properly before a court of appeals.” Cavallo v. Star Enter., 100 F.3d 1150, 1152 n.2 (4th Cir. 1996). In any event, there is no evidence in the record disputing Reid’s testimony that, at the time she made the statement, she believed Blankenship had been convicted of a felony.

In the district court, Blankenship also alleged that Hayes’s April 16, 2018 tweet calling him a “felonious coal baron” was defamatory. The district court held that the tweet “is insufficient to establish MSNBC’s liability inasmuch as it was tweeted from Mr. Hayes’ personal account.” J.A. 5725 n.40. Blankenship does not contest that ruling on appeal, so we do not consider it further. 28 USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 29 of 44

references to Blankenship’s misdemeanor conviction, particularly because the record does

not indicate that Hayes discussed that detail during the November 29 broadcast.

The second event is the December 2015 email exchange between Hayes and All In

staff members, in which Hayes wrote that Blankenship “only got nailed on the

misdemeanor” and “[p]robably [would not spend] a day in jail.” J.A. 845. The email

certainly shows that Hayes knew about the misdemeanor conviction in late 2015, but we

are skeptical that this constitutes clear and convincing proof of his state of mind two and a

half years later. Crucially, Hayes’s 2015 email came before Blankenship was sentenced to

and served a year in prison (and therefore before Hayes learned about the sentence)—a fact

that very well could lead a non-lawyer like Hayes to believe it was accurate to refer to

Blankenship as a felon years later.

In the end, Hayes’s communications around the time of his 2018 statements cast too

much doubt on the notion that he consciously misrepresented Blankenship’s criminal

status. During the off-air conversation with Brian Montopoli hours before the April 23

broadcast, Hayes referred to Blankenship as a “convicted felon,” and Montopoli did not

correct him. This strongly suggests that by April 2018, Hayes had either forgotten about

the misdemeanor classification or did not understand it would be incorrect to describe

Blankenship as a felon. Hayes’s response to the viewer’s May 10 email that pointed out

29 USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 30 of 44

the inaccuracy provides further contemporaneous evidence that he simply made a mistake.

See J.A. 847 (“Caught that after the show, but you’re r[i]ght.”). 9

Nor does Blankenship present any affirmative evidence that Denis Horgan (All In’s

Executive Producer) or any other staff member acted with a reckless disregard for the truth.

The record shows that some of the challenged MSNBC statements were scripted. But the state

of mind required for actual malice must be “brought home” to the persons responsible for

publication, N.Y. Times, 367 U.S. at 287, and the record does not identify which staff members

actually inserted the “felon” language into the scripts. In their deposition testimony, neither

Horgan nor Reid could recall who wrote the scripted language, but Reid testified that she “did

not work with Denis Horgan on the scripts for those shows.” J.A. 862–83.

Blankenship argues that circumstantial evidence of actual malice gets this issue to the

jury. We are unpersuaded. First, Blankenship asks us to find a genuine issue of actual malice

because Hayes and the All In team exhibited animus towards him. The December 2015

emails from staff members to Hayes—sent after Hayes wrote that Blankenship “[p]robably

[would not spend] a day in jail” and before Blankenship’s sentencing—expressed frustration

with the conviction. J.A. 845 (“A slap on the wrist for a dude who killed 29 people . . . .”);

id. (“Very disappointing . . . he’s killed more people than most terrorists ever do[.]”). As

with Fox News, however, this evidence of possible animus carries little weight in the actual

9 Blankenship also contends that the April 2016 email from a staff member to Hayes stating that “our old friend Don Blankenship is going to the cooler for a year” helps his case, but it is hard to see how that supports an inference that Hayes later remembered the conviction was a misdemeanor rather than a felony. If anything, this email helps explain Hayes’s later belief that it was accurate to describe Blankenship as a felon in light of the one-year prison sentence. 30 USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 31 of 44

malice analysis. See Cannon, 36 F.4th at 568. That is particularly true here, where the hostile

comments came two years before the allegedly defamatory statements.

Second, Blankenship makes much of Hayes and Reid’s failure to issue corrections

after learning their statements were inaccurate, but the lack of a retraction has little to no

relevance in the actual malice inquiry. See Fairfax, 2 F.4th at 295; see also Pippen v.

NBCUniversal Media, LLC, 734 F.3d 610, 614 (7th Cir. 2013) (“[A]ctual malice cannot be

inferred from a publisher’s failure to retract a statement once it learns it to be false.”).

Third, and finally, Blankenship suggests that MSNBC’s conduct violated

NBCUniversal’s News Group Policies and Guidelines, which state that MSNBC “stands

for accuracy,” J.A. 5467, and that corrections “should be addressed as soon as reasonably

possible,” J.A. 5480. But “actual malice cannot be established merely by showing a

departure from accepted journalistic or professional practices,” Church of Scientology

International v. Daniels, 992 F.2d 1329, 1334 (4th Cir. 1993), and even an “extreme

departure” from such standards is inadequate. Harte-Hanks, 491 U.S. at 665. A violation

of journalistic standards may be relevant when combined with other proof of actual malice,

but even if we assume that MSNBC violated its policies here, the evidence falls short.

Because the policy Blankenship cites focuses on corrections, this argument essentially

restates his failure-to-correct claim. Once again, a publisher’s failure to retract a statement

has very little probative value, if any.

Based on the summary judgment record, a reasonable jury could not find that Hayes

or any other MSNBC employee made the relevant statements with actual malice.

31 USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 32 of 44

Turning to CNN, Blankenship alleges that three individuals affiliated with the

network made defamatory statements during live broadcasts: Kevin McLaughlin,

S.E. Cupp, and Joe Lockhart. Here, too, the record does not support a finding by clear and

convincing evidence that any of the three made the statements with actual malice.

To start, McLaughlin described Blankenship as a “convicted felon” during an

unscripted portion of CNN Newsroom on April 29, 2018. In a deposition, McLaughlin

explained that he believed the “convicted felon” description was accurate at the time—his

“understanding was, given what happened in the sentence, that it was obviously a very

serious crime.” J.A. 1402. McLaughlin also stated that he had “Googled it” prior to his

appearance on CNN and from that search “was led to believe [Blankenship] was a

convicted felon.” J.A. 1403.

To be sure, McLaughlin made the “convicted felon” comment only a few minutes

after Dana Bash had remarked that Blankenship “served a year in prison” but “reminds us

[his conviction] was just a misdemeanor.” J.A. 1383–86. Bash’s reference to the

misdemeanor conviction is the only evidence that McLaughlin knew it was inaccurate to

describe Blankenship as a convicted felon. But, if anything, the fact that McLaughlin

called Blankenship a felon so soon after Bash’s comment indicates that McLaughlin, a non-

lawyer, simply did not understand the legal distinction between a felony and a

misdemeanor in this case. Without more, we cannot conclude that a reasonable jury could

32 USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 33 of 44

find with convincing clarity that McLaughlin’s statement was a “knowing, calculated

falsehood.” 10 Ryan v. Brooks, 634 F.2d 726, 733 (4th Cir. 1980).

Moving on, there is no evidence that Lockhart or Cupp knew they were likely

making false statements when they called Blankenship a felon. Both testified that they

believed their statements were correct when they made them, and Blankenship presents no

evidence to rebut that testimony. Unfiltered played a short clip from the West Virginia

primary debate during the May 2 telecast, and, at one point in that debate, Blankenship

stated he “beat all three of the felonies” and was “sent . . . to prison for a misdemeanor.”

Opening Br. 51. But the transcript of the May 2 Unfiltered telecast does not include that

portion of the debate, and no facts dispute Cupp’s assertion that she did not recall seeing

it. Blankenship asks us to infer that Cupp saw that part of the debate, but without any

affirmative evidence, that calls for speculation and goes beyond the reasonable inferences

we make in his favor at the summary judgment stage.

Blankenship once again tries to shore up his case with circumstantial evidence. He

contends that CNN demonstrated animus, violated its internal standards, and failed to

investigate his criminal history before broadcasting the statements in question. These facts

do not create a genuine issue of actual malice. When he called Blankenship a felon,

Lockhart also expressed his view that Blankenship was “crazy” and a “racist,” likely

referring to comments he had made about Secretary Chao’s Chinese heritage. J.A. 1428.

10 For her part, Bash’s unrebutted testimony is that McLaughlin’s on-air comment did not “register[] with [her] at the time.” J.A. 1396–97. Regardless, Bash’s failure to correct the record does not establish that she acted with actual malice. 33 USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 34 of 44

But, again, that cannot substitute for the complete lack of direct evidence that Lockhart

knew his statement was false. Next, the internal CNN standards Blankenship cites express

a general commitment to “accurate, fair, and responsible” reporting and explain what

qualifies as defamation. J.A. 1690–91. In essence, Blankenship argues that the statements

violated CNN policies because they were inaccurate. But this is not helpful to the actual

malice inquiry. See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 511 (1984)

(“[T]here is a significant difference between proof of actual malice and mere proof of

falsity.”).

Blankenship’s failure-to-investigate argument also falters. The “failure to

investigate before publishing, even when a reasonably prudent person would have done so,

is not sufficient to establish reckless disregard,” Harte-Hanks, 491 U.S. at 688; such

inaction rises to the level of actual malice only if it amounts to a “purposeful avoidance of

the truth,” id. at 692. This is not such a case. Blankenship’s prison sentence placed him

as close to felony status as possible; for non-lawyers like McLaughlin, Cupp, and Lockhart,

describing Blankenship as a felon was not “inherently improbable,” and there were not

“obvious reasons to doubt the veracity” of such a statement. St. Amant, 390 U.S. at 732.

For these reasons, the cumulative record, viewed in the light most favorable to

Blankenship, does not permit a reasonable jury to find that anyone at CNN acted with

actual malice.

Blankenship’s defamation claim against the Washington Post focuses on two published

statements: a July 25, 2018 article authored by Jenna Johnson and Josh Dawsey that described

34 USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 35 of 44

him as a “felon,” and an August 9, 2018 blog post by Amber Phillips that referred to him as

“one of three convicted felons” running for office in 2018. We conclude that Blankenship has

failed to establish a genuine issue that either was made with actual malice.

Starting with the July 25 article, nothing suggests that Dawsey or Johnson had

serious doubts about the accuracy of the “felon” statement. The uncontested record shows

that Dawsey neither wrote nor reviewed the relevant part of the article, and even if he had,

no evidence suggests that Dawsey knew the statement was incorrect. Nor do any facts

rebut Johnson’s declaration that she did not realize the term “felon” was inaccurate at the

time of publication, that she used the word “because [she] understood [Blankenship] had

been convicted of a serious crime and sent to prison,” and that she “recall[ed] having seen

or heard him referred to as a felon.” J.A. 2057.

Blankenship also cannot establish a genuine issue of actual malice as to Phillips’s

August 9 blog post. In her declaration, Phillips, like all the other journalists thus far, stated

she believed her description of Blankenship as a “convicted felon” was correct at the time.

She noted that she “knew Mr. Blankenship had gone to prison for a serious crime,” and

that her “understanding [was] that the word ‘felon’ could be used to refer to someone who

has been convicted of a crime.” J.A. 2079.

In response, Blankenship points out that (1) one of Phillips’s earlier blog posts,

published on May 1, 2018, referred to Blankenship’s conviction “on a misdemeanor for

conspiring to violate mine safety laws” (and his one-year prison sentence), J.A. 2298, and

(2) Phillips received three mass-distributed emails in early May 2018 that briefly

mentioned the same. But these facts do not make it “highly probable” that Phillips

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demonstrated a reckless disregard for the truth when she wrote the August 9 story. Cannon,

36 F.4th at 573. For starters, we doubt it is reasonable to infer that Phillips even read the

three mass emails in their entirety, let alone that she remembered this particular detail while

writing the August 9 blog post. And it seems tenuous to infer from Phillips’s May 1 story

that she remembered the details of Blankenship’s conviction on August 9, particularly

because she wrote more than 100 stories in the intervening three months. But even if we

drew that inference, a jury could not find with convincing clarity that Phillips was not

simply confused about the meaning of the term “felon.”

As with the prior Defendants, circumstantial evidence does not create a genuine

issue of actual malice here. Blankenship focuses solely on the Washington’s Post’s failure

to fact-check the articles before publication. The Post’s Policies and Standards provide

that “reporters have primary responsibility for reporting, writing, and fact-checking their

stories,” and that stories “are subject to review by one or more editors.” J.A. 2274.

However, as previously discussed, inadequate fact-checking cannot by itself establish that

Johnson or Dawsey published their article with actual malice. See Daniels, 992 F.2d at

1334. Nor does it get Blankenship’s challenge to Phillip’s story over the summary

judgment hurdle. See Dongguk Univ. v. Yale Univ., 734 F.3d 113, 126 (2d Cir. 2013)

(“Even the failure to review one’s own files is inadequate to demonstrate malice by the

party responsible for publishing a statement.”).

Thus, we conclude there is legally insufficient evidence that the Washington Post

published these statements with actual malice.

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Blankenship’s defamation claim against ABC centers on the July 23, 2018 article

by John Verhovek. In the article, Verhovek referred to Blankenship as “the former coal

baron and convicted felon” and stated he “was convicted in 2015 for conspiracy to violate

mine safety and health standards in the aftermath of the 2010 Upper Big Branch Mine

disaster that resulted in the death of 29 miners.” J.A. 2633.

Like the authors of the other Defendants’ statements, Verhovek asserted that he did

not realize the term “convicted felon” was false when he placed it in the article. He explained

that he “had always understood and used the term ‘felony’ to mean ‘serious crime,’ and the

term ‘felon’ to mean ‘someone who committed a serious crime,’” and that he therefore used

the term “convicted felon” to “refer to someone who served significant time in prison after

being convicted of a crime.” J.A. 2576. Verhovek further stated that he was aware

Blankenship “had spent a significant amount of time in federal prison” but “did not know

the details about his criminal case” or that “he was acquitted of some charges.” J.A. 2573.

While we cannot credit Verhovek’s testimony regarding his state of mind over

contrary record facts, contemporaneous evidence indicates that he did not realize the

“convicted felon” language was false. Most relevant is Verhovek’s response when

Meridith McGraw contacted him about the error in the article. After McGraw explained

that Blankenship was convicted of a misdemeanor, Verhovek responded, “Meridith can

you send me exact language on this? Blankenship was sent to federal prison but he was

not convicted of a felony?” J.A. 2735. In a later text to McGraw, Verhovek again admitted

his confusion, writing: “Sorry about Blankenship, I thought I had it right on that or [had]

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seen it in an earlier story, that’s my bad.” J.A. 2812. These exchanges strongly suggest

that Verhovek’s error was a mistake based on his confusion about how to refer to a person

who served a one-year sentence in federal prison. Further, the record shows that Verhovek

had previously described Blankenship as a “convicted felon” in a March 2018 email to an

editor, and that the editor did not flag the description as inaccurate. J.A. 2577.

Blankenship contends there is a genuine dispute as to Verhovek’s knowledge

because (1) he had authored or co-authored three earlier articles for ABC that accurately

called the conviction a misdemeanor; and (2) he had received multiple distribution-list

emails from McGraw in May 2018 that did the same. But this evidence, viewed in the

context of the entire record, does not allow a finding by clear and convincing evidence that

Verhovek “entertained serious doubts as to the truth” of the “convicted felon” language in

his July 23 article. St. Amant, 390 U.S. at 731. In light of the whole record—particularly

Verhovek’s contemporaneous messages to McGraw—Blankenship cannot establish that

the language in the July 23 article was anything more than a careless mistake, caused by

Verhovek’s confusion about the appropriate use of the word “felon.”

Undeterred, Blankenship argues that Verhovek should have consulted his prior

reporting or otherwise fact-checked the July 23 article before publishing it. But, as was

the case for Phillips’s Washington Post story, Verhovek’s or another editor’s failure to fact-

check is not enough to manufacture a genuine issue of actual malice here.

Finally, it is significant that ABC promptly corrected the article after Blankenship’s

campaign contacted McGraw to request a correction. While the failure to issue a correction

cannot establish actual malice, the “readiness to retract tends to negate ‘actual malice,’”

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Zerangue, 814 F.2d at 1071, and Verhovek worked with editors to correct the article and

social media posts within hours of their publication.

In sum, the district court correctly concluded that the facts related to Verhovek’s

July 23 article “fail to tip the scales towards clear and convincing evidence of actual malice

when viewed in connection with the entirety of the evidentiary record.” J.A. 5714.

The district court also correctly held that there is insufficient proof of actual malice

with respect to the ten other Defendants in the consolidated appeal: News & Guts,

Eli Lehrer, Mediaite, Tamar Auber, Griffin Connolly, 11 FiscalNote, HD Media,

NBCUniversal, CNBC, and 35th PAC.

Nothing in the record suggests that any of these Defendants had the required state

of mind when they published statements describing Blankenship as a felon. The authors

of these statements all asserted that they were unaware the term “felon” was incorrect at

the time of publication. While at least two Defendants, HD Media and NBC, had

previously reported that Blankenship’s conviction was a misdemeanor, there is no evidence

that the authors of the allegedly defamatory statements had seen those earlier publications

or any other materials that correctly described Blankenship’s conviction. In fact, several

said they recalled seeing references to Blankenship as a felon in other stories—which is

unsurprising, given that Blankenship initially identified more than 100 publications that

11 The district court granted summary judgment to Griffin Connolly based on the uncontested fact that he was not involved in publishing the statement Blankenship had attributed to him. Blankenship does not contest that decision on appeal and therefore forfeits the issue. 39 USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 40 of 44

included such references. See Daniels, 992 F.2d at 1334 (concluding it was “impossible”

to find actual malice “[g]iven the volume of published commentary” consistent with the

author’s statements).

Nor is there enough circumstantial evidence of actual malice as to these Defendants.

Blankenship repeats his refrain that these Defendants’ animus, violation of journalistic

standards, and failure to correct the statements produce a genuine issue of actual malice.

But his arguments are mostly speculative and do not come close to the quantum of evidence

needed to create a jury question.

Finally, we reach Blankenship’s defamation claim against the Boston Globe. As we

noted above, Blankenship takes issue with a single article, which the Globe repurposed

from an AP wire story and published on May 22, 2018. The original AP story described

Blankenship as a “convicted ex-coal baron” who had “spent a year in federal prison for

violating safety regulations in a 2010 mine explosion that killed 29 miners.” G.J.A. 356–

59. The Globe copy editor who condensed the story, Daniel Coleman, changed the

description to “convicted felon and former coal baron” and removed the reference to

Blankenship’s prison sentence. G.J.A. 346. Here, too, we hold that the record would not

permit a jury to find actual malice by clear and convincing evidence.

There is no evidence that Coleman knew the “convicted felon” language was likely

false. Blankenship did not depose Coleman during discovery. David Dahl, the Globe’s

Deputy Managing Editor for Print and Operations, was deposed as the Globe’s Rule

30(b)(6) corporate representative. Dahl testified that “what happened here was an honest

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mistake by an editor looking at a story about a very serious incident and editing an incorrect

characterization” into the article, and further stated that the Globe “took the mistake

seriously and . . . regret[ted] making the error.” G.J.A. 416. This explanation makes sense;

in the condensed article, Coleman substituted the word “felon” for the longer description

of Blankenship’s prison sentence, which suggests he believed that an offense punishable

by one year in prison could be described as a felony.

Nothing in the record indicates that Coleman’s edit was anything more than a simple

accident. Blankenship calls our attention to three earlier Globe articles that accurately

reported on Blankenship’s misdemeanor conviction. But there is no reason to believe that

Coleman—or any other Globe employee involved in publishing the May 22 article—was

aware of those earlier stories.

Without any evidence of Coleman’s subjective knowledge, Blankenship returns to

a well-trodden path, arguing that the district court’s actual malice analysis did not account

for Coleman’s failure to fact-check before publishing the article. Standing alone, though,

an editor’s “failure to investigate before publishing . . . is not sufficient to establish reckless

disregard.” Harte-Hanks, 491 U.S. at 688. That includes the failure to review news stories

in the newspaper’s own files. See N.Y. Times, 376 U.S. at 287. Blankenship claims that

Coleman also violated journalistic standards, but those standards relate to fact-checking,

so this contention merely duplicates his failure-to-investigate argument.

A copy editor might well be negligent for publishing a story without confirming the

accuracy of certain information in it, but actual malice demands subjective knowledge of

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likely falsity. On these facts, a reasonable jury could not conclude that Coleman acted with

such a state of mind. 12

* * *

Like the district court in its well-reasoned analysis, we reach these conclusions

without crediting Defendants’ denials of actual malice over contrary facts, discounting

certain evidence, or drawing inferences in Defendants’ favor. Rather, the cumulative

record simply does not permit a finding, by clear and convincing evidence, that any

Defendant “in fact entertained serious doubts as to the truth” of the statements it published.

St. Amant, 390 U.S. at 731. Some of the statements may have been the product of

carelessness and substandard journalistic methods. 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. 13

12 Blankenship also complains that the Boston Globe’s later correction to the May 22 article was defamatory because it stated he “was convicted of a misdemeanor for his role in connection with a deadly 2010 mine disaster.” G.J.A. 314 (emphasis added). However, in the district court, he did not bring a defamation claim based on the language in the correction. In any event, it is far from clear that this description of Blankenship’s conviction is even false, and there certainly is no evidence it was published with actual malice. 13 In his briefing, Blankenship separately argues that New York Times v. Sullivan should be overturned. But, of course, this Court “cannot overrule Supreme Court precedents.” In re Grand Jury Subpoena, 870 F.3d 312, 319 n.3 (4th Cir. 2017). 42 USCA4 Appeal: 22-1198 Doc: 94 Filed: 02/22/2023 Pg: 43 of 44

Because there is legally insufficient evidence that any of the Defendants published

a statement with actual malice, the district court correctly granted summary judgment to

Defendants on Blankenship’s defamation claims.

IV.

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.

West Virginia recognizes false light invasion of privacy as an independent cause of

action. Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70, 88 (W. Va. 1983). The

elements of defamation and false light invasion of privacy are not identical, but as with a

defamation claim, a public-figure plaintiff alleging false light must prove that the defendant

made a false statement with actual malice. Taylor v. W. Va. Dep’t of Health & Human

Res., 788 S.E.2d 295, 315–16 (W. Va. 2016). For the reasons we have discussed,

Blankenship has not established a genuine dispute of material fact that any Defendant acted

with actual malice. His false light claims therefore fail.

Blankenship’s civil conspiracy claims meet the same fate. Under West Virginia

law, civil conspiracy is defined as “a combination to commit a tort.” Dunn v. Rockwell,

689 S.E.2d 255, 268 (W. Va. 2009). While West Virginia recognizes a separate cause of

action for civil conspiracy, “[t]he cause of action is not created by the conspiracy but by

the wrongful acts done by the defendants to the injury of the plaintiff.” Id. at 259. A

conspiracy claim enables a plaintiff to recover damages against additional defendants “who

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did not actually commit a tort themselves,” but the claim cannot stand without proof of the

underlying tort. Id. at 269. As the West Virginia Supreme Court explained, “[a] conspiracy

may produce one or more torts. If it does, then every conspirator is liable for that tort,

including a conspirator who promoted but did not commit the tort. A conspiracy is not,

itself, a tort. It is the tort, and each tort, not the conspiracy, that is actionable.” Id. (quoting

Segall v. Hurwitz, 339 N.W.2d 333, 338 (Wis. App. 1983)) (emphasis added). This rule

makes particular sense in defamation cases; to comply with New York Times v. Sullivan, a

public-figure plaintiff must show that some defendant actually published a false statement

with actual malice.

At this stage, Blankenship’s only remaining civil conspiracy claims are against Fox

News. Because he has not offered sufficient evidence of actual malice to support his

defamation or false light claims against Fox News, he cannot establish an underlying tort,

and his conspiracy claims fail as a matter of law. See, e.g., Long v. M&M Transp., LLC,

44 F. Supp. 3d 636, 652 (N.D.W. Va. 2014) (holding civil conspiracy claim failed because

there was “no underlying tort to support [it]”).

For the reasons set forth in this opinion, we affirm the district court’s orders granting

summary judgment to Defendants and dismissing these actions.

AFFIRMED