James W. McGlothlin v. Kevin N. Hennelly

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1537
JAMES W. MCGLOTHLIN,
Plaintiff - Appellant,
v.
KEVIN N. HENNELLY,
Defendant - Appellee
---------------------------------------------
FIRST AMENDMENT SCHOLARS; REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS AND 15 MEDIA ORGANIZATIONS,
Amici Supporting Appellee.
Appeal from the United States District Court for the District of South Carolina, at Beaufort.
David C. Norton, District Judge. (9:18-cv-00246-DCN)
Submitted: June 17, 2021 Decided: July 13, 2021
Before WILKINSON, FLOYD, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
R. Andrew Hutchinson, Brent B. Young, BAKER, DONELSON, BEARMAN,
CALDWELL & BERKOWITZ, P.C., Johnson City, Tennessee, for Appellant. Robert H.

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Jordan, Robert C. Osborne III, PARKER POE ADAMS & BERNSTEIN LLP, Charleston,
South Carolina; Nicole Jean Ligon, Sarah Ludington, First Amendment Clinic, DUKE
UNIVERSITY LAW SCHOOL, Durham, North Carolina, for Appellee. Kathleen E.
Farley, Robert D. Balin, DAVIS WRIGHT TREMAINE LLP, New York, New York;
Bruce D. Brown, Katie Townsend, Caitlin Vogus, Lin Weeks, REPORTERS
COMMITTEE FOR FREEDOM OF THE PRESS, Washington, D.C., for Amici Curiae.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In 2016, the owner of Hilton Head National Golf Course, Scratch Golf, LLC
(“Scratch Golf”), roiled residents of Beaufort County, South Carolina, by filing a rezoning
application aimed at converting the golf course into a sprawling residential and commercial
development. The application eventually fell through, but not before one Beaufort resident,
Kevin N. Hennelly, made his displeasure known. After reading a local newspaper’s
coverage of the controversy, Hennelly took to the article’s online comment section to voice
his concerns about some of the people involved in the move to repurpose the property.
Among his targets was James W. McGlothlin, the owner of United Company, which in
turn owned Scratch Golf. According to Hennelly, McGlothlin paid Maureen McDonnell—
wife of then-Governor of Virginia Robert McDonnell—$36,000 for a “‘no show’ job.”
(J.A.1 31). And in remarks posted on Facebook on the day after the rezoning application
was denied, Hennelly criticized the local newspaper for “refus[ing] to print the documented
corruption of the owners of United Company.” (J.A. 36). He went on to allege that “James
McGlothlin w[as] up to [his] eyeballs in the recent scandals in Virginia with the Governor
and his wife. McGlothlin gave the Governor[’]s wife a no show job . . . .” (J.A. 36).
McGlothlin thereafter commenced the instant defamation suit against Hennelly.
Though McGlothlin complained of several allegedly defamatory statements, the district
court granted Hennelly’s motion to dismiss as to all but two remarks: the allegation of
“documented corruption” and the assertion that Maureen McDonnell received a “‘no show’
1 Citations to “J.A.” refer to the joint appendix filed in this appeal.

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job.” Following discovery, the district court granted summary judgment to Hennelly,
finding that McGlothlin failed to establish that Hennelly acted with common law malice.
For the reasons that follow, we affirm.
“We review de novo a district court’s grant or denial of a motion for summary
judgment, construing all facts and reasonable inferences therefrom in favor of the
nonmoving party.” CTB, Inc. v. Hog Slat, Inc., 954 F.3d 647, 658 (4th Cir. 2020).
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).
In South Carolina, a plaintiff alleging defamation “must show (1) a false and
defamatory statement was made; (2) the unprivileged publication was made to a third party;
(3) the publisher was at fault; and (4) either actionability of the statement irrespective of
special harm or the existence of special harm caused by the publication.” Erickson v. Jones
St. Publishers, LLC, 629 S.E.2d 653, 664 (S.C. 2006). Where a private plaintiff is involved,
a defamatory statement is actionable only if the defendant acted with common law malice,
id., which “means the defendant acted with ill will toward the plaintiff, or acted recklessly
or wantonly, i.e., with conscious indifference of the plaintiff’s rights,” id. at 665.
Generally, if the contested statement “tend[s] to degrade . . . , to disgrace . . . , or to
render [the plaintiff] odious, contemptible, or ridiculous,” then the statement is actionable
per se, and common law malice is presumed to exist. Id. at 664 (internal quotation marks
omitted). However, “[i]t is well established that tort liability under state law, even in the
context of litigation between private parties, is circumscribed by the First Amendment.”

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Snyder v. Phelps, 580 F.3d 206, 217 (4th Cir. 2009); see Holtzscheiter v. Thomson
Newspapers, Inc., 506 S.E.2d 497, 503 (S.C. 1998) (“At common law, defamation was a
‘strict liability’ tort, but where the constitution is involved, the common law rules are
altered.”). “Thus, regardless of the specific tort being employed, the First Amendment
applies when a plaintiff seeks damages for reputational, mental, or emotional injury
allegedly resulting from the defendant’s speech.” Snyder, 580 F.3d at 218.
In light of this constitutional gloss, the Supreme Court of South Carolina has
recognized that, in some situations, common law presumptions must give way to First
Amendment protections. Erickson, 629 S.E.2d at 665. For example, “in a case involving
an issue of public controversy or concern where the libelous statement is published by a
media defendant,” a private plaintiff must prove common law malice. Id. (emphasis
added). Though Erickson drew a distinction between media and nonmedia defendants, id.,
we have since held that “the status of [a defendant] as media or nonmedia is immaterial,”
Snyder, 580 F.3d at 219 n.13.2
2 In the proceedings below, Hennelly argued—and the district court agreed—that
Snyder and Erickson combined to eliminate the common law presumption of common law
malice where, as here, a private defamation plaintiff sues a nonmedia defendant for
statements involving a matter of public concern. For the first time on appeal, McGlothlin
attempts to distinguish Snyder in an effort to reinstate the common law presumption.
Because McGlothlin neglected to present these arguments to the district court, we decline
to consider them now. See In re Under Seal, 749 F.3d 276, 285 (4th Cir. 2014) (“[A]bsent
exceptional circumstances, we do not consider issues raised for the first time on appeal.”
(ellipsis and internal quotation marks omitted)). Thus, for purposes of this appeal, we
assume that the district court correctly determined that the presumption of common law
malice did not apply.

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At his deposition, Hennelly explained that he actively researched the people
involved in the rezoning application, including McGlothlin. His research led him to a
Washington Post article reporting that United Company paid Maureen McDonnell
“$36,000 . . . to attend a handful of meetings as a consultant.” (J.A. 37). Critically, the
article insinuated that Governor McDonnell purposefully misidentified the position as a
paid trusteeship so that he would not have to disclose his wife’s salary. To Hennelly, this
was an ethical violation, in which McGlothlin played a critical role.
On appeal, McGlothlin claims that Hennelly doubted—or had reason to doubt—the
veracity of the offending statements. In support, he cites Hennelly’s concession that, to his
knowledge, McGlothlin had never committed or been convicted of a crime. Thus,
according to McGlothlin, Hennelly knew his statements were unfounded, yet he decided
to publish them anyway, thereby demonstrating a conscious indifference to McGlothlin’s
rights.
We cannot agree. Neither statement at issue accused McGlothlin of criminal
activity, so the fact that Hennelly found no evidence that McGlothlin committed a crime is
irrelevant.3 And regarding the allegations of “documented corruption” and a “‘no show’
job,” Hennelly’s testimony reflected his earnest belief that McGlothlin was involved in
Governor McDonnell’s ethical violation relating to his wife’s position with Union
3 Hennelly also claimed that Maureen McDonnell’s position with Union Company
was “at the heart of the [un]ethical and criminal activity.” (J.A. 36). However, the
reference to “[un]ethical and criminal activity” did not survive Hennelly’s motion to
dismiss, and McGlothlin does not challenge this ruling on appeal.

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Company. Though McGlothlin might dispute that he engaged in any impropriety, we
discern no evidence that Hennelly harbored serious doubts about the accuracy of his
statements. Consequently, McGlothlin cannot show that, in publishing his comments,
Hennelly acted with common law malice.
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED

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