Whatever Became of Don Blankenship's Defamation Lawsuit? A Tiny History of Coal Baron Hubris

**For this update on some recent political history that got personal for me, I tried out a new A.I. platform named Perplexity, which aggregates sources from the entire Web. Much of the language under "Key Legal Points" belongs to Perplexity. But I added detail, because I was personally involved.

After West Virginia coal baron Don Blankenship's failed 2018 Senate race in West Virginia (which I followed here and here), he sued some 150 writers/broadcasters/media outlets/random political enemies for a grand total of $8 billion for defamation, claiming that all those media influencers (including, incidentally WataugaWatch and yours truly) had maliciously labeled Mr. Blankenship a felon, or had mistakenly said he was convicted of a felony (when in fact it turned out to be a misdemeanor, though he still spent a year in Federal prison). His lawsuit alleged we had individually and collectively damaged his reputation and hurt his chances of beating Senator Joe Manchin for the West Virginia Senate seat.

Oh, the company WataugaWatch was keeping! Some of the others named as defendants: the Washington Times, the Los Angeles Times, the Washington Post, the Daily Beast, Esquire magazine, Wonkette, the Huffington Post, Breitbart News -- the list of defendants ran on for pages. I feel pretty sure that somebody working for Blankenship must have done universal Web searches for every incidence of the words Blankenship and felon (or felony) appearing together in print. If there was a Google search behind this lawsuit, it certainly ensnared me, an otherwise obscure blogger in the backwoods of North Carolina. (My two uses of Blankenship and felon are archived at the links above. My written correction to those posts is here.)

It took months -- years, actually --for the Federal judge in Charleston to dismiss Blankenship's suit for failing to reach the high bar of proving actual malice. 

Key Legal Points Assembled by Perpexity:

Blankenship, former CEO of Massey Energy, served a year in prison for misdemeanor conspiracy related to mine safety violations leading up to the deadly 2010 Upper Big Branch mine explosion that killed 29 miners.

The courts found that defendants' errors were not made with the requisite "actual malice" standard necessary for public figures to prove in defamation cases, particularly given Blankenship's high-profile 2018 Senate campaign.

West Virginia District Court Judge John Thomas Copenhaver Jr. granted summary judgment to all defendants in 2022. That summary judgment was affirmed by the appellate court in 2023. The U.S. Supremes declined to consider Blankenship's final appeal -- allowing the district court ruling to stand.

 

You Can Always Depend on Foxx To Make the Burden Heavier

I had not focused enough on what happens when the coal seam runs thin:

As Appalachian coal deposits have dwindled over recent decades, miners have had to cut through more and more sandstone rock. This has exposed miners to very high levels of respirable silica dust and caused rates of black lung to rise to epidemic levels, with younger miners being particularly afflicted.

With that fact as background, the following fact looks just plain gross and cruel -- cruel for no good reason, except what you might milk from the mining industry because you're a member of the ruling party in Congress. 

On July 29, Congresswoman Virginia Foxx of North Carolina joined six other Republican members of Congress in sending a letter to the Mine Safety & Health Administration (MSHA), asking the agency to develop a new, more industry-friendly rule about acceptable levels of silica dust, and describing the agency’s efforts to curb silica exposure as placing “undue and excessive burdens” and “unwarranted and costly obligations” on mining companies. 

According to AppVoices, "The letter does not acknowledge the epidemic level of black lung in Central Appalachia, or the fact that the disease is affecting younger miners than in previous generations." Because those things, like many other species of human suffering, are of little interest to the congresswoman from the Fifth District of North Carolina. 

A Correction

I thought my readers should know that I've been sued for defamation by Mr. Don Blankenship, former Chairman and CEO of the Massey Energy Company of West Virginia. It appears Mr. Blankenship thinks I had something to do with his loss in the Republican senatorial primary in West Virginia in 2018.

I am one of what were originally 150 defendants. The top first-named defendant is Judge Andrew Napolitano of the Fox News Network (hence the suit is known as Blankenship v. Napolitano et al.). Others named as defendants include the Washington Times, the Los Angeles Times, the Washington Post, the Daily Beast, Esquire magazine, Wonkette, the Huffington Post, Breitbart News -- the list runs to several pages. Some of these have now apparently negotiated their way out of the lawsuit.

On April 5, 2010, a huge underground explosion at Massey's Upper Big Branch Mine in Raleigh County, W.Va., took the lives of 29 miners. As head of the company, Blankenship was subsequently prosecuted by the Federal government for that explosion. In a trial in West Virginia, Blankenship was acquitted by a jury of some charges, found guilty of one charge, and spent approximately a year in Federal prison.

When he left prison, he went into politics and ran for the US Senate in the Republican primary of 2018 with two other candidates who hoped to unseat Democratic Senator Joe Manchin.

According to Blankenship v. Napolitano et al., WataugaWatch referred to Blankenship in a post on April 15, 2018, as a "recent felon … who's notorious in West Virginia without necessarily being electable." On the eve of the primary, May 7, 2018, WataugaWatch again mentioned Blankenship: "Holy crap! Democratic incumbent Joe Manchin has been considered the most endangered Democrat in the US Senate, but the Republican voters in their primary tomorrow may grant him a reprieve … if they choose felon coal baron Don Blankenship to run against him." 

It turns out that although Mr. Blankenship was charged with felonies, he was only convicted of a misdemeanor. By using the word felon, I am blamed for linking to national news sources and for following the language being used at the time in the mainstream press, which some sources later corrected. I was unaware of those corrections, and I was unaware that he had only been convicted of a misdemeanor. I thought my characterization was accurate. Most of the 150 defendants in this lawsuit -- perhaps all of them -- at some point used the word felon or the word felony in the same sentence with the name Don Blankenship, as did I.

   

Correction: My saying that Don Blankenship was a felon instead of his being convicted of one misdemeanor charge of conspiring to violate mine safety and health standards in relation to the Upper Big Branch Mine explosion -- for which his punishment was a year in jail -- was a mistake and unintentional. He was indeed acquitted of the felony charges. I meant no offense.

Blankenship lost the Republican primary on May 8 to Patrick Morrisey by 20,529 votes, coming in third in the primary out of a total of six candidates. The readership of WataugaWatch is primarily located in North Carolina, and principally in Watauga County of North Carolina. I don't know how many West Virginia voters might be reading a local North Carolina blog, but I don't think it's enough to have caused Don Blankenship to lose his primary race by over 20,000 votes.

Footnote

Breaking News: On Wednesday, Jan. 15, 2020 -- yesterday -- a federal judge in West Virginia refused to toss the misdemeanor conviction of Don Blankenship for conspiring to violate mine safety laws.

Here's a Headline

After studying Sutton Lake, Duke University scientists say, “Impact of coal ash in environment far larger than previously thought”

--story by Lisa Sorg

Sutton Lake is on the coast, at Wilmington.

The Little People Don't Appreciate Their Scripted Role

Ohio coal miners say they were forced to attend Romney campaign event under threat of job loss and ended up losing a day's pay.

Rand Paul on Mountaintop Removal: 'No Biggie'

The "purity" of Rand Paul's libertarianism leads him into the blind alley of letting industry and other "property owners" do whatever they damn well please for a profit. The "permit process" for mountaintop coal mining should be made easier. Government shouldn't be taxing the profits from coal extraction. And this tone-deaf gem: "I don't think anybody's going to be missing a hill or two here and there."

The thought process that came up with that summation on the devastation wrought by Big Coal is basically amoral. "I don't care what is destroyed as long as someone's making a profit."

Duke Energy and Economics

Who was it who joked that an accountant is someone who knows the cost of everything and the value of nothing?

Duke Energy's request of coal jobbers to tell them the relative costs of coal derived from deep mines vs. coal taken from the rape of mountaintop-removal mining is being read by some as a hopeful sign, that perhaps Duke Energy is taking steps to rid itself of collusion in the environmental devastation of Central Appalachia.

The cynic in us sez, "Naw. They're just looking for collaboration that indeed strip-mined coal is the cheapest way to go."

Piles of Toxic Coal Ash Near You

Bruce Henderson digs into Duke Energy's dirty legacy of coal ash deposits across North Carolina in today's Charlotte Observer ... which evokes certain memories of the Christmas TVA coal ash spill on the Tennessee River last year.

Coal ash is known to be full of arsenic, mercury, and a dozen other ingredients fit for a witch's brew, and Duke Energy's coal-fired power plants produce tons and tons of it every year. In the NC-5, "Duke had to shut down an old ash landfill at its Belews Creek plant in Stokes County last year after groundwater samples repeatedly broke state safety standards."

Some 2.7 million tons (million tons) of Duke's ash was piled out on the ground between 1992 and 2003 without protective liners that are now required at landfills.

We ain't begun to calculate the true costs vs. benefits of corporatocracy.

And don't even get us started on the fact that much of that coal comes from mountaintop removal mines north of here.

Arsenic and Old Ash

The corporate gift that just keeps on giving! Some 13 coal ash ponds on the Yadkin, the French Broad, and five other North Carolina rivers are leaking arsenic, cadmium, chromium, and lead -- metals known to cause cancer, neurological problems and other serious illnesses -- at levels, in some cases, exceeding 380 times state groundwater standards.

Three of the waste ponds border the Catawba, which supplies drinking water to the greater Charlotte metropolitan kingdom.

But, who cares, really? Don't coal ash ponds signal JOBS, JOBS, JOBS? So what if a few hundred people get weird cancers? Who'll ever prove it was because of the drinking water?

West Virginia Saved from "Scalia Justice"

An important decision regarding the buying of judges was handed down yesterday by the U.S. Supremes in a 5-4 decision. Because the case involved the influence of Big Coal in the state of West Virginia, I've been following it for years and can only applaud the decision and note that Justices Scalia, Roberts, Thomas, and Alito (the minority in the decision) think it's perfectly all right to buy yourself a judge, if you've got the cash, and that the bought judge is perfectly within his rights to rule in your favor when the time comes.

Here's the background: Several small mining companies sued A.T. Massey Coal Company, alleging that Massey's chief executive, Don L. Blankenship, the Boss Hogg of the West Virginia coal industry, had used fraud to drive the small companies out of business. The plaintiffs won a $50 million jury verdict in 2002, which Blankenship appealed to the state's Supreme Court, where he lost in a 3-2 decision. Whereupon Blankenship found himself a lawyer willing to be his candidate in the next election, running against the state's Chief Justice, who cast the deciding vote against him, and spent $3 million in 2004 to defeat the Chief Justice and install his own guy, who promptly supplied the third vote in reversing the previous decision. Got that?

Which developments, ruled the five-judge majority on the U.S. Supremes yesterday, violate the Constitution's due-process clause. They've sent the case back to the West Virginia Supreme Court and ordered the Blankenship-bought chief justice to recuse himself from any further involvement.

Judge Scalia, who himself knows a thing or two about buddying up with Dick Cheney and then ruling in his favor, was particularly outraged that the majority on the court thinks it can "right all wrongs and repair all imperfections through the Constitution." That's the guy who helped appoint our president in 2000.

The Last Crusading Newspaperman?

I met "The Mountain Eagle" owner/publisher Tom Gish and his wife Pat several times, but I didn't really know them personally. Oh I KNEW them, but mainly from the pages of their crusading weekly paper published in Whitesburg, Kentucky. That newspaper had a huge following across all of Appalachia and nationally because it was at the epicenter of so much political ferment in our region, particularly the rising chorus against the national disgrace of strip mining. We returned from our Thanksgiving road trip to discover belatedly that Tom Gish died a little over a week ago in Pikesville. He was 82.

When Tom and Pat bought "The Mountain Eagle" in 1956, the motto on its masthead read "A Friendly Non-Partisan Weekly Newspaper Published Every Thursday." The Gishes changed the motto to "It Screams" and began actually covering the news, like what the elected officials were up to. Apparently, no newspaper reporter had ever attended meetings of the Letcher County Fiscal Court, the approximate equivalent of our County Commission. Those meetings turned out to be secret conclaves of good ole boys who took payoffs from the coal industry, and the Gishes began exposing the corruption. The local Fiscal Court promptly passed a resolution banning "The Mountain Eagle" from its meetings. "The Eagle" went anyway, and in the face of death threats helped push through the first open meetings law in Kentucky history.

The Gishes also investigated the local Whitesburg police force on accusations that they were harassing and even physically abusing teenagers. One result of that investigation was that a police officer paid arsonists to throw a kerosene firebomb through a window at the newspaper, destroying the building. A week later the Gishes published the paper from their front porch with the motto changed to "It Still Screams." Tom Gish said he later learned that coal company money was behind the crime.

Both Tom and Pat were absolutely fearless and determined to tell the truth no matter the cost. They were the enemies of "business as usual," which meant the rule of "a handful of very powerful interests who want to control every single thing in the county, no disagreements, no opposition, no hints of dissent to be tolerated — the old way of doing things — fire the coal miner who wants a union, don't re-hire the teacher who disagrees, take away the food stamps, the free medications, the welfare checks of anyone who dares express a thought of his own," as the Gishes would later characterize what they were up against.

In recent years they supported the political insurgency of reformer Carroll Smith (a Republican, incidentally) who ran for and won the office of Chief Judge Executive, the equivalent (more or less) of our County Commission chair. Smith successfully held that office for a couple of terms and then was defeated on a campaign of outrageous lies in 2006. But he was only defeated because his opponents (Democrats, incidentally) were "swift-boating" him and managed to buy up every newstand copy of "The Mountain Eagle" the week before the election because that edition of the paper printed the truth behind the lies. (Tom & Pat editorialized about that "nasty trick" a week later.)

I served with Tom and Pat on an advisory board that was helping Elizabeth Barret produce a documentary film about the murder of a Canadian filmmaker in Letcher County in 1967, a crime that put Letcher County in an unwelcome international spotlight and which the Gishes tended to see as yet another expression of a closed, corrupt political system.

"The Mountain Eagle" is now being edited by son Ben Gish, who's been at the helm for several years now. The paper, among its many accomplishments as a fearless beacon for journalistic truth, gave a start to many young reporters who went on to regional and national prominence. Several of them came back to Whitesburg to speak at Tom Gish's funeral.

We might not see Tom Gish's like again, at least not in rural Appalachia. We can, of course, always hope -- and pray -- that courageous journalists will rise perennial among our ranks, whether by means of old-fashioned news-print or through the so far unfettered and newfangled InnerTubes.

The Bosses Get a Clue

Last week a film crew from the National Rifle Association showed up at the Consol Blacksville #2 Mine in Monongalia County, West Virginia, and started cornering miners, trying to get some of them to speak out against Barak Obama.

This was not received well by the miners.

"This was a surprise visit," explained United Mine Workers Safety Chairman Eric Greathouse, "and a lot of the miners felt this was a direct slap in the face of the union because they were trying to coerce our people into saying things against Barack Obama."

"Consol doesn't let anybody on their property -- never," said Safety Committee Member Mark Dorsey, "and for them to let the NRA come on the property and solicit our membership was totally uncalled for. We made our endorsement to our political process, and we didn't bother them, and they shouldn't be harassing our membership over this."

Some 440 miners expressed their disapproval by failing to show up for work on Monday of this week, taking what's called a "Memorial Day," instead of going to work.