McGlothlin v. Hennelly

Amicus brief filed by the Reporters Committee for Freedom of the Press and 15 media organizations

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

Date Filed: Aug. 26, 2020

Update: On July 13, 2021, the U.S. Court of Appeals for the Fourth Circuit affirmed the district court’s ruling in favor of Hennelly, holding that McGlothlin “cannot show … Hennelly acted with common law malice.”

Background: James McGlothlin, a wealthy businessman who owns a coal, oil, and gas exploration company, filed a lawsuit against South Carolina resident Kevin Hennelly, claiming that Hennelly defamed him in a Facebook post and in the comments section of a local online newspaper. McGlothlin specifically took issue with Hennelly’s comments related to an article about the rezoning and redevelopment of Hilton Head National Golf Course, which McGlothlin owns through his business, United Company.

Both parties moved for summary judgment, and a federal district court in South Carolina granted summary judgment to Hennelly. While the court held that McGlothlin was a “private figure,” it found that a reasonable jury could not prove that Hennelly acted recklessly or with disregard for McGlothlin’s rights, a requirement for a private figure to collect damages under South Carolina law. (Hennelly had argued that McGlothlin was a “public figure,” meaning he must satisfy a different and higher burden of proof — “actual malice” — to succeed in his defamation claim.)

McGlothlin then appealed to the U.S. Court of Appeals for the Fourth Circuit.

Our Position: The Fourth Circuit should affirm the district court’s judgment of no defamation liability for Hennelly. But to protect the free flow of information and to properly account for the plaintiff’s wealth and influence, the Fourth Circuit should reverse the district court’s holding that McGlothlin is not a public figure.

• The First Amendment provides heightened protections for criticism not only of government officials and famous people like athletes and entertainers, but also of individuals like McGlothlin who wield extraordinary wealth and influence in the private sector.
• Even if the court rules that McGlothlin is not a general-purpose public figure, he is certainly a limited-purpose public figure because of his influential behind-the-scenes role in the rezoning of Hilton Head National — a matter of public concern.
• Proper application of the actual malice standard is essential to protect public criticism of powerful individuals and institutions

Quote: “Trial courts must take the wealth, power, and influence of defamation plaintiffs into account in determining whether they are public figures subject to the First Amendment’s actual malice standard. Contrary to long-recognized principles, that did not happen in this case.”

Related: In 2018, the Reporters Committee and a coalition of 33 media organizations filed a friend-of-the-court brief with the U.S. Court of Appeals for the Sixth Circuit in another defamation lawsuit brought against the same defendant, Kevin Hennelly.

In April 2020, the Reporters Committee and a coalition of 16 media organizations urged a New York appeals court to rule that “Dr. Luke,” the prominent music producer suing Kesha for defamation, is a public figure. The media coalition argued that a New York trial court’s decision to categorize Dr. Luke as a private figure would chill reporting about alleged abuse. In a blog post about the actual malice standard, the Reporters Committee explained why the trial court’s ruling is a problem for the singer, the #MeToo movement, and the news media.