West Virginia Supreme Court tosses out defamation case against state Sen. Phillips

Ojeda, who served part of one four-year term in the Senate beginning in 2017, resigned in 2019 to make a short-lived attempt at a run for U.S. president in the 2020 Democratic primary. Ojeda also had a failed run for the Democratic nomination for U.S. Senate in 2020 and an unsuccessful campaign for the former 3rd Congressional District in 2018.

According to the memorandum decision, Ojeda posted a video on Facebook in 2020 expressing dissatisfaction with law enforcement and county prosecutors over the handling of a criminal case where a Logan County man assaulted Ojeda.

Referring to the Logan County prosecuting attorney, Ojeda said, “I wish cancer upon you” and “You’re a bootlicker,” along with several expletives. Ojeda also encouraged his supporters to share the Facebook post.

During the 2020 election for state Senate, Phillips aired a 60-second radio ad taking Ojeda’s comments from the video.

While Ojeda was not a state legislative candidate that year, Phillips used the soundbites as examples of how liberals act, stating that “the liberal left sure has a way of saying things,” and “we can’t afford the liberal left to mar our West Virginia values.”

Ojeda was never mentioned by name in the ad.

Shortly after the Phillips radio ad, Ojeda filed a civil defamation lawsuit against Phillips, accusing Phillips of making it look like Ojeda was wishing cancer on political candidates and those with opposite political ideologies.

Ojeda accused Phillips of taking his comments out of context, using Ojeda’s name, reputation and Facebook post to advance Phillips’ personal interests and injuring Ojeda’s reputation.

Phillips also was accused of invasion of Ojeda’ privacy.

In the 2021 circuit court case, attorneys for Phillips filed a motion to dismiss Ojeda’s lawsuit, attaching Ojeda’s Facebook video along with Phillips’ radio ad. The circuit court granted that motion to dismiss, with Ojeda appealing the decision to the Supreme Court, citing four assignments of error on the circuit court’s ruling.

The Supreme Court, in its unsigned memorandum decision, agreed with the lower court’s ruling. Chief Justice Beth Walker and Justices William Wooton and Haley Bunn concurred. Justice Tim Armstead, a former House Speaker, recused himself.

“(Ojeda) 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,” the Supreme Court wrote.

“Rather, the radio ad expresses (Phillips’) opinion as to how liberals express themselves, and that opinion is protected by the First Amendment,” the memorandum decision continued. “Thus, the complaint fails to demonstrate on its face sufficient facts to support all the elements of (Ojeda’s) defamation claim, and we find no error in the dismissal of this claim.”

Justice John Hutchison wrote a one-paragraph dissent, arguing the Supreme Court should have heard oral arguments instead of issuing a memorandum decision.

“I would have set this case for oral argument to thoroughly address the error alleged in this appeal,” Hutchison wrote. “Having reviewed the parties’ briefs and the issues raised therein, I believe a formal opinion of this Court was warranted — not a memorandum decision. Accordingly, I respectfully dissent.”

Ojeda was represented by Teresa Toriseva and Joshua Miller. Phillips was represented by Michael Cary and David Pogue.