A Way Of Saying Things

The West Virginia Supreme Court of Appeals affirmed a decision dismissing several alleged causes of action premised on these facts

Petitioner was a West Virginia Senator from 2016 to 2019, and in 2020, petitioner was an unsuccessful candidate for both President of the United States and the United States Senate. On September 9, 2020, petitioner posted a twenty-three-minute video to his Facebook page in which he expressed his disappointment with the manner in which Logan County authorities handled the criminal case against a man who physically assaulted him in 2016. In the video, petitioner directed the statements “I wish cancer upon you!” and “You’re a bootlicker!” to the Logan County prosecuting attorney. Throughout the video, petitioner used numerous expletives and repeatedly asked that the video be shared.

During the 2020 election cycle, in support of his campaign for the West Virginia Senate, respondent ran a sixty-second radio ad using soundbites from petitioner’s video. After the radio ad stated, “The liberal left sure has a way of saying things,” the ad played the audio from petitioner’s Facebook video of petitioner exclaiming, “You’re a bootlicker!” The radio ad then stated that liberals “have a way of expressing their feelings,” after which the ad played audio from petitioner’s Facebook video of petitioner exclaiming, “I wish cancer upon you!” The ad then suggested, “We can’t afford the liberal left to mar our West Virginia values.” The radio ad did not mention petitioner by name, nor did it indicate the individual upon whom petitioner wished cancer.

Defamation claim

Petitioner cannot establish that the alleged defamatory statements were false, misleading, or published in reckless disregard of the truth. We find, as the circuit court did, that the radio ad did not contain a provably false assertion of fact, i.e., a “statement [that] can[] be objectively characterized as either true or false.” Maynard, 191 W. Va. at 605, 447 S.E.2d at 297. To the extent petitioner avers that the ad implied he wished cancer upon those politically different from himself, we find that this position is not supported by a reasonable review of the radio ad. Rather, the radio ad expresses respondent’s opinion as to how liberals express themselves, and that opinion is protected by the First Amendment. Thus, the complaint fails to demonstrate on its face sufficient facts to support all the elements of petitioner’s defamation claim, and we find no error in the dismissal of this claim.

Various invasion of privacy counts were also properly dismissed and 

We determine, as the circuit court did, that respondent’s conduct cannot reasonably be considered outrageous. Petitioner identifies as a public figure. The video included language petitioner admitted was “crass” or “extreme,” and petitioner asked that the video be shared. Petitioner made and posted the Facebook video during an election cycle. It cannot be considered outrageous that language from the video appeared in respondent’s radio ad during that same election cycle. Consequently, the first element of petitioner’s claim of intentional infliction of emotional distress cannot be satisfied, and the claim fails. The circuit court did not err in dismissing the claim.

(Mike Frisch)