The Virginia Defamation Law Blog

March 28, 2025

Retrospective Application of the “Of and Concerning” Test

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.

November 22, 2024

Falsity Is Assumed at the Motion to Dismiss Stage

by Lee E. Berlik

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.