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Blankenship v. Blakeman

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  1. Libel and Privacy

Court: U.S. Court of Appeals for the Fourth Circuit

Date Filed: Oct. 13, 2020

Background: Earlier this year, Don Blankenship, the former chairman and CEO of Massey Energy, filed a defamation lawsuit against Fox News contributor Bradley Blakeman. Blankenship alleged that Blakeman had defamed him by incorrectly calling him a “felon” on air the evening before Blankenship lost a primary bid for the U.S. Senate in 2018. In 2015, Blankenship was acquitted of several felony charges and convicted of a misdemeanor.

Blakeman filed a motion to dismiss the lawsuit under the Virginia anti-SLAPP statute. However, the district court denied the motion to dismiss, leading Blakeman to appeal to the U.S. Court of Appeals for the Fourth Circuit.

Strategic lawsuits against public participation, or SLAPPs, are meritless legal claims that chill the exercise of First Amendment rights. SLAPPs frequently target journalists and news organizations who are reporting on matters of public concern and subject them to expensive and disruptive litigation.

Anti-SLAPP laws help protect SLAPP defendants by permitting dismissal of these lawsuits at the earliest stages of the lawsuit. Aside from providing a mechanism for early dismissal, these laws also shield defendants from the financial burdens associated with litigation. Virginia, like 29 other states and the District of Columbia, has an anti-SLAPP statute that grants SLAPP defendants immunity from suit altogether.

Our Position: The court should hold that Virginia’s anti-SLAPP law provides immunity from suit and not merely immunity from liability, as Blankenship argues. Therefore, the district court’s denial of Blakeman’s motion to dismiss is appealable.

  • Powerful plaintiffs use SLAPPs to punish and chill protected First Amendment speech, and anti-SLAPP laws provide a meaningful remedy to these meritless suits. By imposing significant time and financial burdens on defendants who often have fewer resources, SLAPPs can negatively impact the dissemination of information to the public.
  • The history and purpose of Section 8.01–223.2 of Virginia’s anti-SLAPP law demonstrate that it provides immunity from suit. This statutory immunity defangs the typical SLAPP suit by allowing for an immediate appeal of a motion to dismiss.

Attorneys and students from the First Amendment Clinic at the University of Virginia Law School represented the media coalition on this brief.

Quote: “Robust anti-SLAPP statutes are essential for news organizations and journalists, who regularly engage in speech on matters of public interest and concern. Strong anti-SLAPP laws allow news organizations to do so without fear of being subjected to the expense and disruption of meritless, retaliatory litigation, and media defendants frequently look to anti-SLAPP statutes to obtain the swift dismissal of baseless lawsuits.”

Related: This is not the first time that the Reporters Committee has filed a friend-of-the-court brief in a case involving Blankenship. In 2015, the Reporters Committee and 29 media and free speech organizations urged the U.S. Court of Appeals for the Fourth Circuit to overturn a gag order and sealing order entered in connection with Blankenship’s criminal trial, which stemmed from a mine explosion that killed 29 people in 2010. The Fourth Circuit later invalidated these orders.

The Reporters Committee monitors the state of anti-SLAPP laws and related court cases across the country. To learn more about our work in this area and see what SLAPP protections look like in your state, check out our Anti-SLAPP Legal Guide.