From Blankenship v. Trump, decided today by Judge John Copenhaver (S.D. W. Va.):
Following an explosion at Upper Big Branch, a West Virginia coal mine, on April 5, 2010, which resulted in the death of twenty-nine miners, the United States government initiated an investigation into the cause of the explosion. While the plaintiff was not charged with the death of the miners or with causing the explosion, the government charged the plaintiff with three felonies, including conspiracy to defraud the federal Mine Safety and Health Administration, and one misdemeanor for conspiracy to violate federal mine safety laws. On December 3, 2015, a federal jury found the plaintiff not guilty of the felony charges but convicted him of the misdemeanor offense. The plaintiff was sentenced to one year in prison, which the plaintiff served and from which he was released in the spring of 2017.
In January 2018, the plaintiff announced his campaign to run as a Republican for a United States Senate seat in West Virginia…. The plaintiff alleges that political and news media figures conspired to defeat his candidacy by referring to the plaintiff as a “felon” or a “convicted felon,” despite the fact that the plaintiff was cleared of the felony charges and was only convicted of the misdemeanor offense. One of these figures was Trump, Jr. On May 3, 2018, after allegedly attending a meeting with members of the National Republican Senatorial Committee (“NRSC”), Trump, Jr. published a series of tweets about the plaintiff from his Twitter handle @DonaldTrumpJr.
The first tweet on May 3, 2018, states:
I hate to lose. So I’m gonna go out on a limb here and ask the people of West Virginia to make a wise decision and reject Blankenship! No more fumbles like Alabama. We need to win in November. #wv #wvpol
In response, the plaintiff issued a press release that afternoon in which he promoted his candidacy. Later on May 3, 2018, Trump, Jr. posted a second tweet (“quote tweet”), in response to a tweet from CNN reporter Dan Merica’s Twitter handle @merica. Merica’s tweet reads:
Trump’s son urges West Virginia Republicans to reject Blankenship, who responds by labeling @DonaldJTrumpJr part of the “establishment.”
Mr. Merica’s tweet includes a link to his CNN news article about Trump, Jr.’s earlier tweet urging West Virginia Republicans to “reject Blankenship.” The first part of the article reads:
President Donald Trump’s son Donald Trump Jr. urged West Virginia Republicans on Thursday to reject Don Blankenship in next week’s primary, comparing the coal baron to failed Alabama Senate candidate Roy Moore.
“I hate to lose. So I’m gonna go out on a limb here and ask the people of West Virginia to make a wise decision and reject Blankenship! No more fumbles like Alabama,” he wrote on Twitter. “We need to win in November.”
The comment from the President’s son is the clearest signal yet that national Republicans are worried that Blankenship’s upstart campaign could upend plans to run either Republican Rep. Evan Jenkins or Attorney General Patrick Morrisey against vulnerable Democratic Sen. Joe Manchin in November. National Republicans were worried when Blankenship jumped into the race, given that the former CEO of Massey Energy had just recently finished serving a yearlong sentence following a misdemeanor conviction for his involvement in the deadliest US mine explosion in four decades …..
Trump, Jr.’s quote tweet includes his own comments, the tweet from Dan Merica, and the link to the CNN news article. Trump, Jr.’s quote tweet comment includes:
Ha, now I’m establishment? No, I’m realistic & I know the first thing Manchin will do is run ads featuring the families of those 29 miners killed due to actions that sent you to prison. Can’t win the general… you should know that & if others in the GOP won’t say it, I will.
Another Twitter user replied to Trump, Jr.’s tweet: “Don’t think Manchin will do that. His ads are usually ab[ou]t him.” Trump, Jr. replied to this tweet on May 3, 2018, with a third tweet (“reply tweet”), which reads:
He’s probably never run against a felon.
The plaintiff argues that Trump, Jr.’s reply tweet refers to him as a felon and is materially false because he has never been convicted of a felony. The plaintiff also alleges that Trump, Jr.’s reply tweet was made in conjunction with reference to the mine explosion from his quote tweet, which had the additional effect of falsely attributing to the plaintiff responsibility for murder….
[P]laintiff asserts Trump, Jr. acted with actual malice, because his reply tweet, in which he called the plaintiff a felon, occurred after he had quote tweeted Mr. Merica’s article which stated the plaintiff was convicted of only a misdemeanor. The plaintiff continues by claiming “[a] jury would inevitably draw multiple legitimate inferences in Plaintiff’s favor from this affirmative evidence.” First, the plaintiff claims a jury would “logically deduce” that Trump Jr. read the article he quote tweeted before posting his reply tweet. Next, he asserts a jury “would obviously conclude” that Trump, Jr. had not forgotten that the plaintiff was convicted of a misdemeanor when he posted his reply tweet. Finally, the plaintiff alleges “a jury would likely extrapolate” that Trump, Jr. knew the exact number of coal miners who died in the mine disaster (as referenced in his quote tweet), only by having read an article hyperlinked (“hyperlinked article”) in Mr. Merica’s article.
The court finds the evidence presented by the plaintiff is wholly insufficient to show Trump, Jr. knew what he tweeted was false or that he had a high degree of awareness of its probable falsity. [Note that public official/public figure plaintiffs have to show this knowledge or recklessness by clear and convincing evidence. -EV] First, Mr. Merica’s article makes no reference to the number of coal miners who died in the mine disaster. Instead, the plaintiff’s claim is that Trump, Jr. must have clicked on a hyperlink that plaintiff says was embedded within Mr. Merica’s article, which then took Trump, Jr. to another CNN article that simply reported a proposed investigation of the death of the twenty-nine miners. There is no record evidence before this court that shows that the “hyperlinked article” was in fact embedded as a hyperlink within Mr. Merica’s article.
Next, there is no evidence before the court which shows Trump, Jr. read Mr. Merica’s article or the supposed hyperlinked article, before he posted his reply tweet. This is despite the plaintiff having had the opportunity to serve written discovery on Trump, Jr., and having taken his deposition. Instead, the plaintiff makes tenuous inferences, that simply do not provide clear and convincing evidence that Trump, Jr. acted with actual malice. While the court is required to view all reasonable inferences in favor of the nonmovant, the Fourth Circuit Court of Appeals has long reasoned “permissible inferences must still be within the range of probability.” The inferences the plaintiff asks this court to accept are speculative and in no way go to show the subjective intent of Trump, Jr.
Indeed, the record evidence in this matter fails to show that Trump, Jr. had knowledge of the falsity of his tweets or that he had a subjective belief that there was a high probability his statements were false. During his deposition on December 6, 2021, Trump, Jr. testified that, at the time of his May 3, 2018, tweets, he was unaware that the plaintiff was convicted of only a misdemeanor. He testified to the following concerning how he concluded the plaintiff was a felon:
Q. Where did you have—what other sources did you see that called Mr. Blankenship a felon?
A. Well, I saw Senators talking about it on television. I saw TV pundits talking about it. I read newspaper articles about it. And so that’s how I came to that conclusion.
Q. I’m sorry. So you said you had other sources. What other sources are you talking about?
A. I just remember numerous. I don’t know which specifically at this point. But it was pretty widespread all over the media that that was the case.
Furthermore, Trump, Jr. remembered “most” of “[t]he big political” broadcast networks had referred to the plaintiff as a felon, including Fox, MSNBC, and CNN, and he had seen the plaintiff be called a felon “pretty much everywhere.” Trump, Jr.’s testimony that there was widespread usage of the term “felon” to describe the plaintiff is supported by the allegations found in the plaintiff’s first amended complaint (the operative complaint) filed in his case against Fox News and 107 other defendants…. [T]he plaintiff in his first amended complaint against Fox News and 107 other defendants claimed in paragraphs 149 to 171 that on at least eleven occasions prior to May 3, 2018, widespread media publication, including multiple publications on each Fox News, CNN, MSNBC, and other media outlets, occurred which referred to the plaintiff as a “felon,” “ex-felon,” or that he was imprisoned for manslaughter. That practice, according to plaintiff in that same complaint, continued unabated down to election day on May 8, 2018, and beyond. In view of this phenomenon, it is not surprising to learn that Trump, Jr. stated that at the time he called the plaintiff a felon—just five days before the primary election—he believed he was accurate.
The plaintiff has failed to rebut any of this evidence, and has provided little evidence, aside from the tenuous inferences the plaintiff asks this court to draw from Trump, Jr.’s quote tweet and Mr. Merica’s article….
Because the plaintiff has failed to produce clear and convincing evidence showing Trump, Jr. acted with actual malice, the court finds Trump, Jr. is entitled to summary judgment on the plaintiff’s defamation claim.
In 2021, the same judge denied Trump, Jr.’s motion to dismiss, concluding that erroneously calling a misdemeanant a felon was potentially defamatory, and concluding that Blankenship had sufficiently alleged that Trump, Jr. knew that the felony allegation was false (or was reckless about it). But here, after discovery, the judge granted Trump, Jr.’s motion for summary judgment, concluding that Blankenship hadn’t supplied sufficient evidence of such knowledge or recklessness.
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