The Virginia Defamation Law Blog

October 16, 2025

Legislative Immunity Only Protects Legislative Acts

Among the types of statements protected from defamation claims by an absolute privilege are statements made in connection with the proceedings of bodies creating legislation. Earlier today, the Supreme Court of Virginia issued an opinion in Brooks-Buck v. Wahlstrom in which it offered some clarification regarding the scope of this legislative immunity. At issue was whether a school board member’s written statement was protected by common-law legislative immunity when made during internal disciplinary proceedings targeting another board member. The statement claimed that the plaintiff, Deborah Wahlstrom, had committed perjury in an earlier FOIA action.

The Court held that while initiating disciplinary proceedings against fellow board members is a protected legislative function, legislative immunity does not extend to statements about third parties when those statements are not integral to the legislative act itself. In affirming the lower court’s denial of immunity at the demurrer stage, the Court emphasized that the shield of legislative immunity does not protect defamatory statements that stray from the core purposes of legislative activity. (The Court did note, by the way, that the immunity argument should have been raised by a plea in bar, not a demurrer, since legislative immunity is an affirmative defense.)

September 10, 2025

Reporting on Allegations Doesn’t Necessarily Imply They’re True

by Lee E. Berlik

When an individual is publicly accused of misconduct, reporting on the existence of such allegations—without more—does not necessarily give rise to a claim for defamation. This principle is not just a matter of common sense; it is a well-established rule in Virginia defamation law, where courts require that allegedly defamatory implications be tied to the actual words used by the speaker or writer and reasonably drawn from those words. The Court of Appeals of Virginia reaffirmed this principle in Alexander v. The Martin Agency, decided September 9, 2025. In a decision affirming the dismissal of a defamation claim, the court made clear that merely referring to the fact that allegations were made—without asserting or implying their truth—is not actionable as defamation.

The opinion describes the facts of the case as follows. Joe Alexander is the former Chief Creative Officer at The Martin Agency. He resigned in late 2017 after the company received multiple sexual harassment complaints against him. These events were widely covered in the media, with various reports describing the nature of the allegations and linking his departure to the resulting scandal. In the wake of Alexander’s resignation, The Martin Agency hired Kristen Cavallo as CEO, a move broadly celebrated as a turning point for the company’s culture and public image. In 2019, the agency reposted on its website three articles that praised Cavallo’s leadership and discussed the broader cultural shift following Alexander’s departure. The articles referenced the prior sexual harassment allegations and described them as part of the backdrop to Cavallo’s hiring and leadership. One article referred to Alexander as having “behaved badly,” and another quoted Cavallo as saying, “Don’t waste a good crisis,” in reference to the company’s transformation.

July 24, 2025

Privileged Statements to the Police

by Lee E. Berlik

In Virginia, citizens enjoy a qualified privilege to report suspected crimes to law enforcement. But what happens when such a report turns out to be wrong—or even wildly untrue? Can the accused sue for defamation? The answer, as highlighted by two recent decisions from the Virginia Court of Appeals, depends not on whether the statement was ultimately false, but on whether it was made in good faith. Two opinions issued just months apart reached starkly different conclusions on the viability of defamation claims stemming from reports to police. In Massie v. Ulta Beauty, Inc. (decided July 1, 2025), the court affirmed the trial court’s decision to throw the case out on demurrer. By contrast, in Kidd v. Bazazan (decided May 13, 2025), the court affirmed a jury verdict awarding $150,000 in damages. Both cases involved statements made to the police. The distinguishing factor was the existence or absence of malice.

As discussed earlier on this blog, Virginia law recognizes a qualified privilege for statements made to law enforcement about suspected crimes. That means a speaker is generally shielded from defamation liability for such statements unless the plaintiff can show by “clear and convincing” evidence that the privilege has been lost or abused. This could happen if, for example, (1) the statements were made with knowledge that they were false or with reckless disregard for their truth; (2) the statements were communicated to third parties who have no duty or interest in the subject matter; (3) the statements were motivated by personal spite or ill will; (4) the statements included strong or violent language disproportionate to the occasion; or (5) the statements were not made in good faith.

June 20, 2025

Virginia’s “Exact Words” Requirement: Don’t Sue If You Don’t Know What Was Said

by Lee E. Berlik

Virginia state courts have made it abundantly clear: if you’re going to sue someone for defamation, you’d better know exactly what they said—and be able to plead those words with precision at the outset of the case, without the benefit of the discovery process. In Bennett v. Lundh, a June 2025 opinion from the Court of Appeals of Virginia, the court reinforced this long-standing doctrine in emphatic terms. The opinion doesn’t just affirm the dismissal of a defamation claim with prejudice—it offers a primer on why the “in haec verba” (i.e., verbatim) pleading standard exists, how it works, and what happens when a plaintiff ignores it.

The basic facts of the case go like this: Ian Wesley Bennett and Katerina Lundh were coworkers working under a federal government contract. In August 2022, the two attended a business trip to San Francisco. According to the complaint, an incident occurred after dinner one evening in which Lundh—allegedly intoxicated—bumped into Bennett. He claims to have playfully nudged her, after which she slapped him across the face. Later, he made a comment about her personal history, prompting a second slap. Hours later, at a bar with colleagues, a coworker confronted Bennett, accusing him of grabbing Lundh and threatening to report him. That same accusation was apparently referenced in subsequent disciplinary action and ultimately contributed to Bennett’s removal from the government contract.

June 5, 2025

Juries May Base Verdicts on Defamatory Statements Whether Expressed or Implied

by Lee E. Berlik

Defamation liability isn’t limited to false statements made in direct and unequivocal terms; liability may also arise out of statements made by inference, implication, or insinuation. If a jury verdict is based on a statement of opinion (which might happen if the trial court erroneously overrules a demurrer), the verdict should be set aside or reversed because statements of opinion are protected by the First Amendment and are not actionable. Upholding the verdict, however, doesn’t necessarily require that the verdict be based on a factual assertion that is false on its face. If the words at issue are reasonably capable of a defamatory interpretation through inference or innuendo, that will be sufficient to uphold the verdict. A statement may be actionable if the words carry a provably false factual connotation, even if not expressed directly.

Earlier this week, the Virginia Court of Appeals decided Brown v. Grundy, Record No. 1467-23-4, which involved a challenge to a defamation verdict of $2 million (reduced by trial court to $1.85 million). The case centered on a letter sent by Charles H. Brown, III, D.D.S., to patients of his dental practice, explaining the supposed reasons for the termination of his associate, Dr. Richard B. Grundy. On December 4, 2018—two days before officially terminating Dr. Grundy’s employment—Dr. Brown sent a letter to patients in which he offered an explanation that included the following:

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May 1, 2025

Willful and Malicious Defamation Is Not Dischargeable in Bankruptcy

by Lee E. Berlik

One of the main goals of the Bankruptcy Code is to give honest debtors a chance to start over financially. But to strike a fair balance between helping debtors and protecting creditors’ rights to collect what they’re owed, the Code makes clear that some debts can’t be wiped out—especially when public policy calls for it. That includes debts tied to a debtor’s misconduct. For instance, bankruptcy courts have long held that someone who commits fraud shouldn’t be able to use bankruptcy as a shield. When it comes to defamation claims, the relevant Code section is 11 U.S.C. § 523(a)(6), which blocks the discharge of debts that stem from a debtor’s willful and malicious actions. Is defamation a willful and malicious action? Well, that depends.

Defamation judgments are notoriously difficult to categorize as dischargeable or nondischargeable because the tort of defamation doesn’t fit neatly into a single category, as the level of intent needed to hold someone liable can vary depending on who’s involved. If the person suing is a public figure, for example, they have to show that the defendant either knowingly made a false statement or did so with serious doubts about its truth. If the plaintiff is a private figure, on the other hand, the bar is lower—they just need to show the defendant was careless or negligent, without needing to prove any intent to harm. So bankruptcy courts will normally want to hear some evidence before they will rule on whether a particular defamation judgment is dischargeable.

March 28, 2025

Retrospective Application of the “Of and Concerning” Test

by Lee E. Berlik

To be actionable in Virginia, statements alleged to be defamatory must satisfy the “of and concerning” test: the statement at issue must expressly or impliedly refer to the plaintiff, in a manner clear enough to communicate that reference to others who know the plaintiff and understand the context of the statement. A case crossed my desk this week involving an unusual fact pattern. At the time an allegedly defamatory statement was uttered, the speaker did not actually know of whom he was speaking; he was commenting on an anonymous report. He was essentially saying that whoever wrote the report was a liar. He didn’t know who wrote the report at the time he made those comments and clearly didn’t intend to direct his accusation against any particular individual. But the report’s author (the subject of his criticism) became known at a later date. It therefore became apparent to readers at that later time whom his statements were about. So would the court apply the “of and concerning” test retrospectively or dimiss the case due to the lack of a specific target at the time the statements were made? In the case of Blake v. Frederick County Fire and Rescue Dept., the court didn’t hestitate to conclude the of-and-concerning test had been satisfied, reasoning that “extrinsic facts may make it clear that a statement refers to a particular individual although the language used appears to defame nobody.”

The dispute began with Casey Blake, an administrative assistant at the Frederick County Fire and Rescue Department (FCFRD). In March 2022, her son Nick, then a recruit firefighter, experienced a serious medical emergency during a physically demanding training session. According to the complaint, instructors ignored his repeated warnings about physical distress, mocked him, and forced him to continue exercising until an ambulance was required. Blake reported the incident to Fire Chief Steven Majchrzak, but he quickly dismissed the concern as a misunderstanding. Over a year later, in July 2023, another recruit named Ian Strickler died under similar circumstances. Troubled by the department’s internal response and believing it was trying to avoid liability, Blake anonymously wrote a letter to Strickler’s family. The letter described the department’s past failures — including her son’s near-death incident — and urged the family to investigate and consult a lawyer. Blake mailed the letter anonymously, hoping it would reach the state safety investigator handling the case.

March 10, 2025

Not All Crimes Involve Moral Turpitude

by Lee E. Berlik

As a plaintiff in a defamation action, you’ll usually want to frame your claim as one involving defamation per se, a classification that would obviate the need to prove the specifc amount of damages you suffered that were directly attributable to being defamed. The Virginia Supreme Court has held that false accusations may be considered defamatory per se if they “impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished.” (See Tronfeld v. Nationwide Mut. Ins. Co., 272 Va. 709, 713 (2006)). Notice that the Virginia Supreme Court did not hold that all false accusations of criminal conduct are considered defamatory per se. Only crimes involving moral turpitude qualify for the heightened level of defamation. A crime involving moral turpitude is one that involves an element of baseness, vileness, or depravity in private or social duties. Crimes that lack an inherent element of dishonesty, deceit, or moral depravity include things like traffic offenses, technical tax offenses, HOA violations, and regulatory infractions. The Virginia Court of Appeals recently affirmed a trial judge’s decision to strike a $300,000 plaintiff’s verdict for defamation per se on the ground that the defamation at issue was not really of the “per se” variety.

Let’s take a look at the case of Stephanie Ann Wadnola v. City of Norfolk. Ms. Wadnola filed a defamation claim against the City of Norfolk after Assistant City Attorney Katherine Taylor told Wadnola’s business associates that Wadnola “had been operating her business illegally.” Wadnola had opened Jhane’s Sweet Lounge at 731 Granby Street in April 2017, operating it through her solely-owned corporation, Jhanesis, LLC. In December 2019, Wadnola sold the business to Suite 1200, LLC, and the premises were leased to Suite 1200 starting February 2020. Although Wadnola’s conditional use permit allowed temporary operation by a successor, Suite 1200 never obtained its own permit. The City revoked Wadnola’s conditional use permit for failing to update the manager’s list as required by city ordinance and Suite 1200 ceased operations shortly thereafter. At a court hearing relating to the violation, Taylor allegedly remarked to the new business owners, privately, that Wadnola “had been operating illegally.”

January 21, 2025

Public Official Fails to Sufficiently Allege CNN Published Story with Actual Malice

by Lee E. Berlik

On January 21, 2025, the Virginia Court of Appeals affirmed the dismissal of a defamation case brought by Kashyap Patel, a former official in the Trump administration, against CNN. The case is Patel v. Cable News Network, Inc. (Va. Ct. App. Jan. 21, 2025) and it provides a compelling exploration of defamation law and, more specifically, the stringent “actual malice” standard applied to defamation claims brought by public figures. The opinion highlights the challenges public officials face in pursuing defamation claims and underscores the robust protections granted to free speech under both the United States and Virginia constitutions.

Patel’s claims focused on two articles (available here and here) published in late 2020. The articles suggested that Patel was involved in efforts to spread conspiracy theories about then-candidate Joe Biden and to coerce Ukrainian officials into announcing an investigation into Biden and his son, Hunter. Patel claimed the statements were false, defamatory, and published with actual malice, driven by CNN’s bias and ill will toward him. The Fairfax County Circuit Court dismissed his case on demurrer, ruling that Patel, as a public figure, had failed to sufficiently plead that CNN acted with actual malice. The Court of Appeals affirmed this ruling, providing a detailed analysis of what constitutes actual malice and why Patel’s complaint fell short.

January 10, 2025

Negative Comments About a Person’s Debt

by Lee E. Berlik

Defamation typically involves blatantly false statements portraying someone as criminal or morally corrupt. Yet I often encounter prospective plaintiffs who want to sue over statements that do not so clearly impugn the person’s character. Remember that not all false statements will qualify as defamatory in nature; a sufficient level of defamatory sting is required. Take, for example, a false statement claiming that someone owes money on a debt. Whether a statement like this can support a defamation action will depend on exactly what was said and the context in which the statement was made. Commenting negatively on someone’s indebtedness may constitute defamation under Virginia law if the comments suggest dishonesty or bad faith by the indebted person. Absent such aspersions on the alleged debtor’s character, the statements are unlikely to be sufficient to create a cause of action.

The issue came up this week in the case of Ackerman v. Maximus Education LLC from the Eastern District of Virginia, which wasn’t even a defamation case. The facts (according to the opinion) go something like this: The plaintiff, Ms. Ackerman, had multiple federal student loans serviced by the defendant, Maximus Education. After Ms. Ackerman sought a disability discharge in early 2023, these loans were transferred away from Maximus to another servicer. Despite the transfer, Maximus allegedly continued to report Ms. Ackerman’s loans as carrying outstanding balances, which she claimed was both inaccurate and harmful to her credit profile. Upset that her credit reports still showed around $25,000 of student loan debt owed to Maximus, Ms. Ackerman filed disputes with credit reporting agencies and ultimately sued Maximus under the Fair Credit Reporting Act.