The Virginia Defamation Law Blog
The Supreme Court of Virginia issued an opinion today in which it addressed the concept of defamation by implication. Building on its 1954 decision in Carwile v. Richmond Newspapers, the court reiterated that although defamatory meaning can sometimes be implied with literally true statements, the inferred meaning cannot be extended beyond the ordinary and common acceptation of the words used. Innuendo cannot be used to introduce new matter or extend the meaning of the words used by the speaker. In short, “the alleged implication must be reasonably drawn from the words actually used.”
In Webb v. Virginian-Pilot Media Companies, LLC, Phillip D. Webb, an assistant principal at Oscar Smith High School in Chesapeake, sued Virginian-Pilot and reporter Louis Hansen for its handling of a story about the school’s disciplinary process. Webb’s son, a student of a neighboring school where Webb previously coached pole vaulting, had been charged with a felony for assaulting another student’s father but received no punishment from the school. Webb’s lawsuit acknowledged that the reporting of the story was truthful, but claimed that the story implied that Webb abused his position of authority to obtain preferential treatment for his son. Webb argued that when the reporter wrote that the student “did not get preferential treatment because of his dad’s position,” the implied meaning was “exactly the opposite.” The court did not agree.
While acknowledging that the article insinuated that Webb’s son may have benefited from special treatment, the court held that there was nothing in the article to suggest that Webb solicited or otherwise procured such treatment. Therefore, the article was not reasonably capable of the defamatory meaning Webb ascribed to it and 
the jury should never have been permitted to even consider the claim.
The Webb decision was the primary authority relied on by the court in dismissing a defamation claim in the case of Jennifer Moschetti v. Office of the Inspector General. Moschetti worked as an OSIG investigator and had been looking into fraud and abuse allegations within the Virginia Parole Board. She concluded that the Parole Board had violated its own policies and certain laws. After presenting these findings to the Governor’s office, she claimed she was met with skepticism and accused of bias. Out of concerns that the Governor’s office or Attorney General’s office might try to cover up the Parole Board’s wrongdoing, she sent certain documents to the Virginia General Assembly and filed a petition with the court asking to be declared a whistleblower. OSIG put her on leave with pay and seized her laptop and employee access card. These events got some local press coverage, and when asked for comment, here is what OSIG’s Communications Director had to say:
OSIG “models integrity, trust and ethical behavior and demonstrates the highest standards of honesty, respect and accountability. For privacy reasons, OSIG cannot comment on personnel matters.”
Moschetti sued for defamation, arguing that by outlining the positive characteristics of OSIG, the statement implied that Moschetti lacked these characteristics. Relying on Webb, the court noted that although defamation can occur by inference and innuendo, the court may look only to the “ordinary and common” meaning of the words used. Innuendo cannot extend the meaning of the words used. Here, the court found that the statement at issue could not reasonably be interpreted to convey any defamatory message about Moschetti. The statement “merely recited positive characteristics of OSIG,” the court reasoned. As a mere “generalized policy statement” with “no clear connection” to Moschetti, it was similar to the statement at issue in the Webb case. All it really did was repeat the organization’s policies.
Trial courts perform an essential threshold, gatekeeping function when it comes to defamation claims. Their job is to determine, as a matter of law, whether a statement alleged to be defamatory is reasonably capable of the defamatory meaning the plaintiff ascribes to the statement. This function, the court held, is to ensure that “defamation suits proceed only upon statements which actually may defame a plaintiff, rather than those which merely may inflame a jury to an award of damages.” If the inference urged by the plaintiff cannot be reasonably drawn from the actual words used, the trial court should sustain any demurrer filed and dismiss the case.