Media Companies Must Face Coal Executive's $12 Billion Libel Suit

Don Blankenship - Getty - H 2020
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Don Blankenship, the former chief of Massey Energy who unsuccessfully attempted to run for Senate in West Virginia two years ago, has received the green light to proceed in a defamation suit that blames quite a number of individuals and media organizations for his political loss. Although a federal judge has cut more than a dozen journalists from the suit for lack of personal jurisdiction, Blankenship gets to move forward against 20 defendants including ABC, CNN, Fox News, MSNBC, The Washington Post, and even the National Republican Senatorial Committee.

In his complaint, Blankenship explains, "We live in an age of weaponized defamation where lies can be repeated in more ways at more times in more places with more speed than anyone could possibly have imagined even five years ago."

His suit concerns the aftermath of a 2015 trial where he faced charges related a 2010 explosion at one of his company's mines. A jury found him not guilty of the most serious counts, but he was convicted of a misdemeanor for conspiring to violate safety standards. The reason why big media outlets are now defendants largely comes down to references to him as a "felon" or "convicted felon" — a technically imprecise assessment given that he was cleared of the felony charges.

Blankenship and his demand for $2 billion in actual damages and $10 billion in punitive damages has ended up in the courtroom of U.S. District Court Judge John Copenhaver, who is 94 years old and was the last acting judge appointed by Gerald Ford before he took senior status last year. He's nevertheless ruling on a motion to dismiss.

We won't fully go through all 80 pages of the opinion (read in full here), but Judge Copenhaver repeatedly comes to the conclusion that Blankenship can state a viable claim for defamation. He shrugs off the defendants' contention that challenged statements were substantially true, and drawing inferences, accepts that Blankenship can plausibly allege that defendants published statements with actual malice. For example, the judge writes, "The plaintiff’s conviction is a matter of public record, which these political reporters should have been aware to consult."

The opinion also permits Blankenship to pursue another claim — false light invasion of privacy.

To defendants who argued that their statements hardly rose to a "major misrepresentation" that would offend the masses, Copenhaver responds, "Calling the plaintiff a 'felon' could place him in a false light that a reasonable person could consider 'highly offensive.'”

The newest decision may be contrasted with one a few months ago in a libel suit brought by Joe Arpaio. There, a judge ruled that a "mistake in legal nomenclature" wasn't enough to hold CNN liable.

The "lamestream media" finds itself in bed, or rather court, with “swamp” Republicans, led by Senate Majority Leader Mitch McConnell.

Here, the judge rules, "The plaintiff has alleged enough facts to support the plausible existence of a civil conspiracy between the NRSC and other defendants. The plaintiff has alleged a common plan between multiple people as part of the meetings between Senate Republicans and the NRSC. The alleged purpose of the common plan was to defame the plaintiff and place him in a false light, and thereby defeat his candidacy for the West Virginia Senate Republican primary election."