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.
The chief of police at the time was Angela M. Greene. When she arrived on the scene and was told that city officials had supposedly authorized the vandalism, she attempted to verify the information by calling the city manager, Lydia Patton. Patton denied having given Lucas (or anyone else) permission to deface, destroy, or cover the monument. Upon hearing this, Greene proceeded to place barricades around the area and instructed the police officers at the scene not to allow any damage to the monument. She and Lucas gave conflicting statements to the crowd about whether they were allowed on the property, creating confusion.
One vocal critic of Greene’s handling of the situation was Milton Blount, a local pastor and president of the Martin Luther King, Jr. Leadership Steering Committee. Blount appeared at a press conference that had been scheduled to call for Greene’s termination and made statements implying that, under Greene’s leadership, the police had impugned Lucas’s character and made her “look like [she] committed a crime.” Blount later sent a public letter to city council on behalf of the MLK Committee in which he:
- alleged that Greene had “ignored a conflict of interest”;
- disregarded “the advice of legal counsel and the law and decided to have her department police themselves”;
- “displayed a dereliction of duty” during the monument’s destruction, thereby thrusting the city “into an embarrassing light across the nation and the globe”;
- “falsified information” about VSP investigations; and
- “withheld critical information” from city authorities “[i]n an attempt…to cover up her neglect and dereliction of duty,” which “left the city in a vulnerable and embarrassing position.”
Greene sued Blount for defamation per se. (She filed a number of other claims as well, several of which led to a discussion of sovereign immunity principles. Those issues are beyond the scope of this blog entry). The trial court initially dismissed the claim but the Court of Appeals reversed and reinstated it, primarily on the ground that Blount’s statements, taken as a whole, conveyed factual assertions about Greene that disparaged her fitness to hold public office. In particular, the court found that Greene could conceivably offer evidence at trial demonstrating the falsity of the assertions that she:
- “decided to have her department police themselves,”
- “displayed a complete and utterly [sic] dereliction of duty,”
- “demonstrated that she didn’t know her role or responsibility,”
- “falsely responded that the State Police had completed their investigation,” and that she
- “chose not to share with the city manager, the mayor, nor city council the crucial and vital actions that would have long-term negative impact on the city, its image and its economy.”
“For example,” the court reasoned, “testimony from a VSP official could prove that appellant responded truthfully when informing the media on the status of the VSP’s investigation into the monument incident.”
As a public official (i.e., a government employee holding a position of public trust with substantial responsibility for governmental affairs), Greene was required to plead actual malice by showing clear and convincing allegations that the statements made about her were done so with knowledge of their falsity or with reckless disregard for the truth. The court found that she had done that, noting that a defendant’s state of mind can be proven through circumstantial evidence. And because Greene had sufficiently alleged malice, Blount was not entitled to statutory immunity under Virginia’s anti-SLAPP statute.