Don Blankenship Lawsuit Goes to Trial

As Ballot Access News reports, Don Blankenship, the leading candidate for the Constitution Party’s 2020 presidential nomination, obtained a procedural victory in his defamation, false light invasion of privacy, and civil conspiracy lawsuit, which now goes to trial.  Blankenship is suing the National Republican Senatorial Committee, multiple media outlets, and individuals that incorrectly labeled him a “felon” during his unsuccessful 2018 run for the Republican Party’s U.S. Senate nomination in West Virginia.  Blankenship was convicted of misdemeanor conspiracy in 2015 for which he served a one-year prison sentence.

Blankenship was CEO of Massey Energy during the 2010 Upper Big Branch Mine disaster that killed 29 people. He blames the disaster on the negligence of officials from the Mine Safety and Health Administration.  The federal investigation in the aftermath led to the prosecution of Blankenship.  At the criminal trial, the jury rejected three felony charges but found Blankenship guilty of conspiring to violate federal mine safety laws, a misdemeanor.  The prosecutors were found to have committed reckless misconduct due to their failure to disclose witness memoranda. Blankenship continues to maintain his innocence and decided to run for U.S. Senate after leaving prison in 2017.

During the three-man 2018 campaign for the Republican nomination, at least 105 media outlets and individuals falsely described Blankenship as a “felon” and/or “convicted felon.”  Blankenship alleges the coverage implied his responsibility for the deaths in the mine disaster.  He argues the coverage cost him the election and destroyed his reputation. He also alleges the National Republican Senatorial Committee participated in a conspiracy to soil his reputation.

In the 80 page opinion, 94 year old Senior Judge John Thomas Copenhaver Jr., a Gerald Ford-nominee to the United States District Court for the Southern District of West Virginia, covers 19 motions to dismiss.  He granted the motions for lack of personal jurisdiction with respect to S.E. Cupp, Joe Lockhart, Josh Dawsey, Jenna Johnson, Dana Milbank, Amber Phillip, Bradley Blakeman, Neil Cavuto, Stephanie Hamill, John Layfield, Elizabeth Macdonald, Andrew Napolitano, Leigh Ann Caldwell, Chris Hayes, Joy Reid, Brian Schwartz, Kevin McLaughlin, The Washington Times, Ben Wolfgang, The Daily Beast, Gideon Resnick, Daily News, Nicole Hensley, The Los Angeles Times, Kathleen Decker, The National Journal, Josh Kraushaar, David Martosko, Breitbart, and Michael Patrick Leahy.

Senior Judge Copenhaver granted, without prejudice, the motions to dismiss for insufficient service of process for CNBC and NBCUniversal.

Senior Judge Copenhaver denied the motions to dismiss for failure to state a claim with respect to CNN, The Washington Post, Eli Lehrer, The Charleston Gazette-Mail, Fox News, MSNBC, News & Guts, National Republican Senatorial Committee, Roll Call, Griffin Connolly, ABC, Mediaite, Tamar Auber, J.W. Williamson, and WataugaWatch.

Those parties, along with 35th Inc., Hayride Media Inc., Jim Heath, Matt Howerton, and Chris Jones remain the 20 defendants as the suit proceeds to trial.

In West Virginia, in order for a public figure or candidate for public office like Blankenship to prevail on a claim of defamation, he must prove:

(1) there was the publication of a defamatory statement of fact or a statement in the form of an opinion that implied the allegation of undisclosed defamatory facts as the basis for the opinion; (2) the stated or implied facts were false; and, (3) the person who uttered the defamatory statement either knew the statement was false or knew that he was publishing the statement in reckless disregard of whether the statement was false.

For false light invasion of privacy, he must show:

(1) the defendant gave publicity to a matter concerning the plaintiff that places the plaintiff before the public in a false light, (2) the publicity was widespread, (3) the matter of the publicity was false, (4) the false light in which the plaintiff was placed would be ‘highly offensive to a reasonable person,’ and (5) the defendant ‘had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the [plaintiff] would be placed’ (i.e., actual malice).

For civil conspiracy he must demonstrate that in a proven underlying tort, such as those above,  the defendants in a “concerted action,” committed “some wrongful act or have committed a lawful act in an unlawful manner to the injury of the plaintiff.”

Blankenship is currently the frontrunner for the Constitution Party’s presidential nomination. As we previously reported, the party will nominate its ticket in an online convention May 1 – 2.

Other candidates for the nomination include Daniel Cummings, Dr. Don Grundmann, Charles Kraut, and Samm Tittle.

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