The Virginia Defamation Law Blog

November 22, 2024

Falsity Is Assumed at the Motion to Dismiss Stage

Truth may be a complete defense to a defamation claim, but defending against such a claim on that basis is unlikely to get the case thrown out at the outset. If the plaintiff alleges that a statement harming his reputation is false and defamatory, asserting that the statement was substantially true is not going to result in dismissal of the case (unless it’s obvious from the pleadings that the statements are, in fact, true). Rather, it will be up to the finder of fact to analyze the statement at trial and determine whether the plaintiff has met his burden to prove falsity. At the motion to dismiss stage, courts have to accept all well-pleaded allegations as true and view the complaint in the light most favorable to the plaintiff. In other words, if a plaintiff alleges the statement is false, courts will credit the allegation of falsity until the case goes to trial and evidence is presented.

The case of Kissinger-Stankevitz v. Town of Tappahannock, pending in the Richmond Division of the Eastern District of Virginia, provides an example. The case involves various accusations exchanged between Amy Kissinger-Stankevitz, her husband Christian Stankevitz, and her ex-husband Dr. David Bailey. The conflict began in 2015, when Dr. Bailey was subject to a no-contact order following an incident involving allegations of family abuse. The court order barred him from communicating with Ms. Kissinger-Stankevitz or his son for two years. After it expired, and despite his prior conviction for “secret peeping” in violation of North Carolina law, Dr. Bailey regained unsupervised visitation rights with his son. Subsequently, the plaintiffs alleged that their son began exhibiting sexualized behavior and emotional distress, which they attributed to abuse by Dr. Bailey. They reported these concerns to the police, but no charges were brought against him.

October 11, 2024

Design Distortion Is Not the Same as Design Theft

by Lee E. Berlik

Virginia-based architect Marcus Breitschmid was pretty annoyed when Swiss architect Valerio Olgiati posted on Instagram that Breitschmid had built a house that “distorted” Olgiati’s design. By making this statement to his 190,000 followers, many of whom were familiar with Breitschmid personally and/or professionally, Olgiati had essentially accused him of stealing and thereby caused severe damage to his reputation. At least, that’s what Breitschmid argued. The court did not agree, however, and dismissed the defamation claims Breitschmid had brought against Olgiati. According to the court, the accusation was merely a personal opinion and lacked sufficient defamatory sting to be actionable.

According to the facts of Olgiati v. Breitschmid pending in the Western District of Virginia, the two architects met in 2006 and have collaborated on several projects over the years, including co-publishing books and working on symposia and lectures. They eventually formed plans to work together on a house to be built in Riner, Virginia. Olgiati sent Breitschmid a “rudimentary set of initial design drawings for the house,” but their collaboration ended when the parties had a falling out. Breitschmid proceeded to build a house with a different architecture firm. Olgiati became aware of this and expressed his disapproval on Instagram, writing:

Markus Breitschmid together with local architects executes a distorted version of my design for the Manahoac House in Riner, Virginia that I do not approve. Continue reading

August 4, 2024

Public Concern vs. Private Concern

by Lee E. Berlik

Virginia’s anti-SLAPP statute offers immunity against tort claims based on statements “regarding matters of public concern.” We know generally that matters of public concern are those considered to be subjects of “legitimate news interest” such as those “relating to any matter of political, social, or other concern to the community.” (See City of San Diego, Cal. v. Roe, 543 U.S. 77, 83–84 (2004); Snyder v. Phelps, 562 U.S. 443 (2011)). The boundaries of what, exactly, constitutes “legitimate” public interest in a particular statement are not well defined, however, so I was pleased to see the Virginia Court of Appeals take up the matter and lay out some guidance in the recent case of Rolofson v. Fraser.

Samuel Rolofson and Brittany Fraser are Army officers who dated briefly in 2017 while stationed at Fort Bragg in North Carolina. After their relationship ended, Fraser complained to the military chain of command that Rolofson was harassing her with inappropriate text messages and that he had abused his authority by deleting from a security computer the name of another man he had accused Fraser of having an inappropriate relationship with. Rolofson’s chain of command conducted an investigation, held a hearing, and eventually issued a General Officer Memorandum of Reprimand, finding that Rolofson had “demonstrated a complete lack of judgment and responsibility” and “discredited” himself. He sued Fraser for defamation.

July 17, 2024

The Ecclesiastical Abstention Doctrine

by Lee E. Berlik

The First Amendment mandates that religious organizations possess the exclusive authority to govern matters of ecclesiastical administration, faith, and doctrine, free from state intervention. Consequently, defamation claims arising in a faith-based setting are often dismissed at the outset for lack of subject-matter jurisdiction. Under the “ecclesiastical abstention” doctrine, courts are generally precluded from adjudicating disputes that involve religious law, principles, doctrines, discipline, customs, or internal administration. “[C]ivil courts are not a constitutionally permissible forum for a review of ecclesiastical disputes.” (See Cha v. Korean Presbyterian Church, 262 Va. 604, 610 (2001)). If a court determines that resolving a defamation claim will require it to “become entangled in issues regarding the church’s governance as well as matters of faith and doctrine,” the doctrine mandates that the case be dismissed for lack of jurisdiction. (See Bowie v. Murphy, 271 Va. 127, 134 (2006)). A court may only examine a defamation claim arising out of church-related issues if the court can “evaluate [the allegedly defamatory] statements for their veracity and the impact they had on [the Plaintiff]’s reputation the same as if the statements were made in any other, non-religious context.” (See Bowie, 271 Va. at 135). “The question is simply whether the court can decide the case by reference to neutral principles of law, without reference to issues of faith and doctrine.” (See Reid v. Gholson, 229 Va. 179, 188 (1985)).

The Virginia Court of Appeals published an opinion yesterday in which it examined and applied this doctrine. The Episcopal Diocese of Southern Virginia v. Marshall involved a defamation claim brought by a former Episcopal priest in Chesterfield County against the diocesan bishop who deposed him from the ministry. After overruling the defendants’ plea in bar, the trial court allowed the defendants to take an interlocutory appeal under Virginia Code § 8.01-675.5 to determine whether the claim was barred by the ecclesiastical abstention (a.k.a. the “church autonomy”) doctrine.

June 12, 2024

Continuous Tort Theory Inapplicable to Defamation Claims

by Lee E. Berlik

The Virginia statute of limitations for defamation claims states that “every action for injury resulting from libel, slander, insulting words, or defamation shall be brought within one year after the cause of action accrues.” (See Va. Code § 8.01-247.1). A defamation cause of action “accrues” when the defamatory acts occurred, which is generally the date the defamatory statements were communicated to a third party. Some plaintiffs have tried to file defamation actions after the one-year period has expired (i.e., over a year after the accrual date) by arguing that the statute of limitations should be extended because the defendant engaged in a continuous, ongoing defamation campaign that isn’t really capable of being measured by any particular date. This theory has been successful in getting around statutes of limitations governing breach-of-contract cases against doctors and lawyers, but as a recent federal case confirms, it doesn’t apply to defamation claims.

The theory has been described variously as the “continuous tort rule,” the “continuing wrong doctrine,” the “continuing violation doctrine,” and the “continuous undertaking rule.” Regardless of what you call it, the idea is that a court can consider acts occurring outside the limitations period if there is a “fixed and continuing practice” of unlawful acts both before and during the limitations period. (See Commonwealth ex rel. Fair Hous. Bd. v. Windsor Plaza Condo. Ass’n, Inc., 289 Va. 34, 65 (2014)). Under this rule, “where there is an undertaking which requires a continuation of services, the statute of limitations does not begin to run until the termination of the undertaking.” (Harris v. K & K Ins. Agency, 249 Va. 157, 161 (1995)). The rule postpones the accrual date “with respect to a particular undertaking or transaction” and applies “only when a continuous or recurring course of professional services relating to a particular undertaking is shown to have taken place over a period of time.” (Moonlight Enters., LLC v. Mroz, 293 Va. 224, 230 (2017)).

May 9, 2024

Fees May Be Awarded Under Anti-SLAPP Even if Case Dismissed on Other Grounds

by Lee E. Berlik

Some defamation cases are so lacking in merit that a defendant can pick and choose among multiple grounds for dismissal. Virginia’s anti-SLAPP statute, for example, is designed to provide a remedy for defendants who are sued for exercising their First Amendment rights while speaking on matters of public concern. A demurrer, on the other hand, allows a defendant to challenge the legal sufficiency of the plaintiff’s complaint in situations where the complaint fails to present a valid claim even if one assumes all the plaintiff’s allegations are true. The anti-SLAPP statute authorizes an award of attorney fees to a prevailing defendant; a successful demurrant may succeed in getting the case dismissed but will generally not be entitled to recovery of legal fees. Virginia defense lawyers often struggle with the strategic decision of which dispositive motion to file and argue first to maximize the likelihood of both a dismissal and an award of legal fees. In a decision of the Virginia Court of Appeals released earlier this week, the court offered some guidance, ruling that even if a demurrer is argued first and sustained, a pending anti-SLAPP motion will not become moot and fees may still be awarded if the statement at issue is covered by the statute.

The case is Jamie Allen Harless v. Kenneth E. Nicely and the facts are straightforward: a high school football coach was not pleased with the way his behavior was characterized by four employees of Roanoke County Public Schools who had written various reports and other statements about his conduct during a football game with a competing high school. The school principal had issued a report describing how she investigated an incident and determined that Coach Harless had called a student on the opposing team a “fucking dirty player” and uttered various other profanities. The complaint alleges she added her own commentary to the report, writing for example that “Mr. Harless acted in a racist manner unfit to coach when he intentionally targeted two WBHS players because they were Black.” The complaint also takes issue with various statements accusing him of unsportsmanlike recruiting methods that violate Virginia High School League policies.

April 25, 2024

Not Sure Whether a Particular Word is Defamatory? Check the Dictionary.

by Lee E. Berlik

As noted previously on this blog, if an employer falsely suggests to others that an employee was fired for cause when, in truth, the employee quit the job voluntarily, the employer may be liable for defamation. Similarly, when news outlets report on the separation of public figures from their places of employment, they need to be careful with the words they use. Nobody wants to open a newspaper and encounter a story about how they were forcibly removed from a position they voluntarily quit, leaving readers with the false impression that some sort of misconduct occurred. A recent Virginia case involved a news story reporting that a school superintendent was “ousted.” In examining whether a term like this could support a defamation action, the court relied primarily on dictionary definitions.

In Sroufe v. Scripps Media, Inc., Dr. William D. Sroufe, the former superintendent of Colonial Heights Public Schools, took issue with a news story that aired in February 2023 on WTVR/CBS6. The broadcast allegedly misrepresented the circumstances of his departure from the school system. According to the report, Sroufe was “ousted” due to allegedly covering up misconduct by a softball coach at the school. This narrative, he asserted, was not only damaging to his reputation but also blatantly false.

March 23, 2024

Former Police Chief’s Defamation Claim Reinstated Against Portsmouth Pastor

by Lee E. Berlik

In most cases, it won’t be actionable to call for the resignation of a public official or to question that person’s ethics or professionalism. The First Amendment is intended to protect robust debate over the performance of government officials, and statements like these are generally considered to be non-actionable expressions of opinion. But in situations where criticisms are laden with factual content, such as when they imply the existence of false factual assertions, they may be deemed defamatory and actionable. The Virginia Court of Appeals recently reinstated a previously dismissed defamation claim against a Portsmouth pastor deemed to have crossed this line in his public statements about a local police chief.

The case of Greene v. Portsmouth arises out of the protests surrounding a Confederate statue in Portsmouth, Virginia, in the summer of 2020. A group of protestors had gathered to deface the monument. L. Louise Lucas, a state senator, approached the monument and indicated to the crowd and police that the city manager and mayor had authorized damage to the monument and that no arrests should be made. Lucas allegedly told the crowd, “to hell with City Council, they had three years” and encouraged them to “go cover it” with paint. She assured the crowd they would not be stopped and claimed she had spoken with the city manager, implying that they had permission to act.

March 4, 2024

Falsely Accused of Being “Under Investigation”

by Lee E. Berlik

Competing for customers by telling them a competitor is “under investigation” is surprisingly common. I hear this from prospective clients all the time. Most of the time, the accusation isn’t any more specific than that the client is under investigation for something. No one really knows what exactly, but the implication is that if some authority is investigating the client for something–anything–then the client is probably guilty of doing something improper and should be shunned by customers. I suppose one reason this appears to be a fairly common phenomenon is that many think that if they keep the accusation vague enough, and assert only that a competitor is being investigated and hasn’t (yet) been formally found guilty of any specific conduct, then the statements can’t be defamatory. Most courts would disagree with this logic.

A couple of federal cases brought by Grover Gaming, Inc., provide an example of the majority view. Grover is a provider of electronic pull tabs for charitable gaming, a market regulated by the Virginia Department of Agriculture and Consumer Services’ Office of Charitable and Regulatory Programs. Grover is licensed to manufacture and supply these games. In Grover Gaming v. William J. Rice, Grover alleged that Rice (an employee of Powerhouse Gaming, Inc., a competitor of Grover) had been going around claiming that Grover and its employee, Trish Riley, were under “serious state investigation,” which Grover asserted was false. In a parallel case, Grover Gaming v. Rodger Huffman, Grover sued another Powerhouse Gaming employee for essentially saying the same thing, albeit to different customers. “They are under a very serious State Investigation in Virginia!!!!!” Huffman allegedly said. “Be careful dealing with Trish Riley!!! She’s fully involved!!!” Continue reading

February 14, 2024

Meaning of the Phrase “That Would be Protected Under the First Amendment” in Virginia’s Anti-SLAPP Statute

by Guest Blogger

Virginia Code § 8.01-223.2, informally known as the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, provides immunity in tort for statements on matters of public concern (subject to certain exceptions not relevant here). I recently had an issue arise in a case that prompted the question of what “that would be protected under the First Amendment” really means in the context of how that phrase is used in the statute, which states in pertinent part as follows:

A person shall be immune from tort liability if the tort claim is based solely on statements (i) regarding matters of public concern that would be protected under the First Amendment to the Constitution of the United States made by that person that are communicated to a third party….