Appeals Court Dumps Another Coal Company CEO’s Defamation Suit, Says Mislabeling Convicted CEO Not Actually Libelous

This isn’t about Bob Murray.

I mean, it sure seems like it is. It involves a baseless defamation lawsuit against journalists, a West Virginia coal company CEO, and court losses for a litigious coal boss.

This isn’t about “Eat Shit” Bob Murray, the head of (the now-bankrupted) Murray Energy who sued John Oliver for saying mean (but true!) things about him on his show. Murray was not only the recipient of a court rejection, he was the recipient of one of the more entertaining briefs ever written, in which the ACLU asserted the right of everyday Americans (and imports like John Oliver) to tell Bob Murray to “eat shit.”

No, this is about Don Blankenship. Blankenship is the CEO of Massey Energy Company, a West Virginia-based coal producer. Massey started feeling litigious shortly after “Eat Shit” Bob Murray filed his defamation lawsuit against HBO and John Oliver.

This followed Blankenship’s very strange attempt to run for political office. Most politicians wait until they’re elected to commit crimes. Blankenship, however, was far more proactive.

Following an explosion of one of Massey Energy’s mines (which killed 29 miners), Blankenship was tried and convicted of conspiring to violate federal mine safety laws, a Class A misdemeanor. He served one year in prison with one year of supervised release, along with paying a $250,000 fine. For some reason, Blankenship thought this would be the perfect time to run for office.

This is from the decision [PDF] recently handed down by the Fourth Circuit Appeals Court.

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.

Blankenship decided it wasn’t this confluence of errors that prevented him from making it onto the ballot. Instead (and perhaps prompted by Bob Murray’s lawsuit filed only months earlier), he decided the media defamed him into a loss at the polls.

It turns out the media agencies Blankenship chose to sue were wrong about one fact:

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 Washington Post, ABC, News & Guts, Eli Lehrer, Mediaite, Tamar Auber, Griffin Connolly, FiscalNote, HD Media, NBCUniversal, CNBC, 35th PAC, and the Boston Globe.

So, the journalists were wrong about the nature of his federal conviction. But they weren’t actually wrong about the conviction itself. Blankenship was a convicted criminal. This lawsuit hinges on what kind of convicted criminal Blankenship is.

Some press outlets issued corrections after discovering their error. Some did not. Most were never contacted by Blankenship for corrections. CNN’s anchor offered an apology after interviewing Blankenship and being told his conviction was actually for a misdemeanor. But none of this was enough for Blankenship, who apparently thought he could get richer by dragging journalists into court for their honest mistake.

It didn’t work. The Appeals Court says this was exactly that: an honest mistake by journalists who knew Blankenship was serving time in a federal prison known mainly for housing felons. The lower court ruled the statements, mistaken as they were, likely were defamatory. But Blankenship, as a political candidate, was a public figure. And there was nothing he’d offered — despite engaging in discovery and deposing several journalists — that suggested the erroneous designation of the severity of his crime rose to the level of actual malice.

The Appeals Court says the same thing: an honest mistake is not a false representation of known facts. Here’s just one “for instance” pulled from allegations against several journalists, this one dealing with Fox News’ Neil Cavuto and Steve Doocy.

[E]ven 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, the feds cut Blankenship a break by keeping him from having a felony conviction on his record. And, rather than be grateful, Blankenship chose to sue about it because people assumed his conviction was about 24 hours worse than it actually was.

And so it goes for the rest of the numerous defendants sued by the aggrieved convict: actual malice isn’t just getting something a bit wrong about the criminal justice system, which is far from easily understood by the people who interact with it regularly, much less those who only talk about it when something seems newsworthy.

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.

The defendants are dismissed along with the lawsuit. It appears Blankenship is still able to re-file or rewrite his lawsuit in hopes of proving people being erroneous about the one-day difference between a misdemeanor and felony conviction were acting recklessly when they used the word “felon.” And he may do that. But it’s unlikely any alterations will make this lawsuit viable. Some people got some stuff wrong, but mistakes aren’t necessarily causes of action. Blankenship should just add this to his long list of recent losses and move on. At least he’s still alive.