Defamation by Implication Category Archives — Page 2 of 4 — The Virginia Defamation Law Blog Published by Reston Defamation Attorney — Virginia Slander & Libel Lawyer

May 17, 2019

Defamation By Implication Is an Intentional Tort

Whether a particular tort is deemed intentional, as opposed to merely negligent, can have far-reaching implications. Intentional torts and negligent torts are treated very differently when it comes to things like insurance coverage, sovereign immunity, and recoverable damages. Defamation is one of those torts that cannot be easily categorized, as the degree of intent required to hold someone liable for defamation differs depending on the circumstances. If the plaintiff is a public figure, he will have to prove the defendant intentionally made a false statement, or at least made the statement with a high degree of awareness of its probably falsity. Private-figure plaintiffs, on the other hand, need only demonstrate a level of culpability akin to negligence, a standard that does not require a showing of intent. States differ in their treatment of defamation-by-implication cases, but in Virginia, the speaker must have intended to make a defamatory implication to be held liable.

Some would argue that defamation by implication should only be deemed an intentional tort in those cases where malice is required. Most court opinions involving claims of implied defamation focus solely on whether the statement implies a defamatory meaning to the reasonable listener or reader, without regard to the defendant’s subjective intent in making the statement. According to Section 563 of the Restatement (Second) of Torts, “the meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express.” If the requisite level of intent for defamation liability is mere negligence (the usual standard in cases not involving public figures or officials), it might make sense to hold the speaker liable for a reasonable defamatory inference even if that inference was not the intended meaning. Since the Virginia Supreme Court decided Pendleton v. Newsome, however, it has been clear that plaintiffs seeking to hold defendants liable based on a defamatory implication must demonstrate not only a defamatory inference but that the defendant intended to communicate that inference.

January 5, 2019

To Determine Whether an Insult Is Defamatory, Ask the Human Race

by Lee E. Berlik

When the Virginia Citizens Defense League, a gun-rights organization, sued Katie Couric for defamation back in 2016, the two big issues from a legal perspective were (1) whether the edited video of the VCDL members conveyed a false statement of fact, and (2) if so, whether that false message carried a defamatory meaning sufficient to support a cause of action for defamation. When I first wrote about the case the day after it was filed, I devoted most of my blog post to the issue of whether video and still images can support the falsity element of a defamation claim (they can). Now that the case has completed its journey through the legal system, I thought I would revisit this case, this time focusing more on the second issue: that of defamatory meaning.

At the trial level, the court answered both questions in the negative, finding that the video was “not false” and that, even if it were false, it lacked sufficient defamatory meaning to survive a motion to dismiss. On appeal to the Fourth Circuit, the Court of Appeals held as I predicted it might: it overruled the trial court’s determination that the video was not false, but nevertheless affirmed the dismissal of the case because that falsity did not carry defamatory meaning sufficient to state a claim for defamation under Virginia law. What surprised me about the ruling was not the result but how little was written in the opinion about whether the law should recognize a defamation claim based on a false statement deemed despicable by a large segment of society, but not by the majority of Americans. This seemed to be a good case for the court to grapple with that issue, as the degree to which VCDL members’ reputations suffered among viewers of the documentary likely varied according to viewers’ opinions on gun ownership. Instead, the court held (in a footnote, no less) that defamatory meaning should be measured according to “the common estimation of mankind” without consideration of variations that may exist among smaller segments of the populace.

November 29, 2017

Press Release Held Defamatory By Implication

by Lee E. Berlik

Truth is not always a defense to defamation claims in Virginia. Sometimes a statement that is literally true will nevertheless convey an implied message with defamatory meaning. Virginia thus recognizes claims for defamation by implication in addition to claims for libel and slander made expressly. The latest case to illustrate this principle is Cameron M. Jackson v. Liberty University, currently pending in the Western District of Virginia federal court.

The facts, according to the original complaint, are essentially as follows. Cameron Jackson is a former student and football player at Liberty University, a Christian university in Lynchburg, Virginia. Sarah Browning was on the university’s swim team. Jackson and Browning had been involved in a “casual sexual relationship” for several months. At an off-campus party in August 2015, Browning approached several members of the football team (including Jackson) and performed oral sex on them. Later that night, Jackson and Browning engaged in consensual intercourse in the living room of a friend’s apartment, where others could and did see them.

May 1, 2017

Not Everybody Reads That Story the Way You Do

by Lee E. Berlik

Hypersensitivity is not a desirable personality trait if you are a plaintiff in a defamation case. If you’re the type of person who tends to jump to conclusions about an author’s intent when reading certain statements made about you on social media, you should think twice (and consult with a defamation attorney) before rushing off to sue the writer for libel. This is because when a judge is faced with the task of deciding whether to allow a defamation claim to go forward, one of the preliminary rulings he or she must make is about how a reasonable reader would interpret the words claimed to be defamatory. If most people reading the article or social-media post would not draw the same defamatory conclusions that you are drawing when they read the statement, your case will likely be dismissed at the outset.

When a statement is clear, straightforward and unambiguous, interpretation usually won’t be an issue. But sometimes even the most well-intentioned writer can express thoughts in a manner that implies hidden meaning to at least some readers. Defamation liability can arise out of a statement that is literally true if a defamatory meaning can be reasonably inferred. Key to this principle, however, is that the inferred meaning must be reasonable; it cannot extend beyond the “ordinary and common acceptation of the words used.” A hypersensitive plaintiff who resorts to twisted logic or an overly-technical interpretation to reach a defamatory understanding from non-defamatory words will not be successful in court. Before allowing a case to go to a jury, the judge will examine the circumstances surrounding the making and publication of the statement and decide whether innuendo arising from the statement could cause a reasonable reader to infer a defamatory message.

April 23, 2017

Felon’s Defamation-By-Implication Claim Proceeds to Trial

by Lee E. Berlik

As I have discussed on this blog before on several occasions, a literally true statement can give rise to a defamation claim if a reasonable listener would infer a defamatory message from the words (and images) used, even if the words themselves do not convey that defamatory meaning directly. If innuendo would cause a reasonable listener to “read between the lines” and infer that the speaker is communicating a defamatory statement about another individual despite the use of words that are not themselves false or defamatory, that can be sufficient to state a viable claim. This is the concept of “defamation by implication.” Earlier this month, in a case brought by a convicted felon, Judge Gibney of the Eastern District of Virginia permitted such a case to proceed to trial.

The case arose out of this CBS 6 broadcast in the Richmond area. Watch it carefully. Did you see or hear anything that would likely cause damage to someone’s reputation? Well, someone named Angela Engle Horne thought so, and so she sued the station for defamation, claiming that her reputation had been damaged by the story. Here’s what happened, according to papers filed in the case:

April 10, 2016

Opinions Laden with Factual Content Are Actionable

by Lee E. Berlik

As a general proposition, libel and slander liability requires a defamatory statement of fact; expressions of opinion are not actionable. Distinguishing assertions of fact from expressions of opinion, however, is not always an easy task. Factual statements are generally those that contain—expressly or impliedly—a provably false factual connotation. “Mr. Smith drank ten shots of tequila last night” is a statement of fact; either he drank ten shots or he didn’t. Expressions of opinion, on the other hand, are relative in nature and depend largely upon the speaker’s personal viewpoint. They tend to consist of evaluative statements reflecting the speaker’s own political, moral, or aesthetic views. “I think Mr. Smith drinks more tequila than he really should” would likely be deemed an expression of opinion by most courts. But consider the statement “I think Mr. Smith must be an alcoholic.” Fact or opinion?

Statements that appear at first to be opinions but which could fairly be interpreted as implying the existence of facts not disclosed by the speaker are treated by Virginia courts as opinions “laden with factual content,” which is a sufficient predicate upon which to base a defamation action. (See Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 298 n.8 (1987)). Ultimately, whether a statement of apparent opinion will be deemed sufficiently laden with factual content to support a defamation action will depend on a number of factors that would influence how a reasonable reader or listener would most likely interpret the statement. Considerations include the following:

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October 15, 2015

Doctor’s Defamation Claim Against CVS Goes Forward

by Lee E. Berlik

Redouane Goulmamine, M.D., is physician based in Petersburg, Virginia, who conducts business under the name “The Petersburg Spine Center.” According to a complaint he filed in the Richmond Division of the Eastern District of Virginia federal court, he became aware that several employees of CVS Pharmacy were providing false information about him to patients and refusing to fill prescriptions he had written. CVS eventually made it official, sending him a letter notifying him that the pharmacy would no longer fill his prescriptions and implying its decision was based on its belief that Dr. Goulmamine had been writing pain-pill prescriptions for drug addicts.

Dr. Goulmamine sued CVS for defamation, insulting words, and tortious interference with contract/business expectancy. The complaint recites nearly two-dozen conversations with CVS employees alleged to be defamatory. Some of the statements were clearly statements of opinion (e.g., “he is filling too many prescriptions”), but the court noted that several alleged statements amounted to statements of fact that were claimed to be false. These statements primarily fell into two camps: (1) false factual statements about Dr. Goulmamine himself (e.g., that he was in jail; that he had overprescribed to a pregnant patient; that one of his patients had died from a Xanax overdose; and that someone in his office was producing fraudulent prescriptions); and (2) false or misleading factual statements about Dr. Goulmamine’s standing in relationship to regulatory bodies (e.g., that the DEA, FBI, or Board of Medicine was investigating him or had revoked his license, or that he was being “audited.”)
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July 18, 2015

Must Context Be Apparent from the Face of the Complaint?

by Lee E. Berlik

Last month, the Supreme Court of Virginia held in Pendleton v. Newsome that where defamatory meaning is not apparent from the face of a statement claimed to be defamatory, a plaintiff may introduce evidence to show that the statement was made in a context that would reasonably cause the statement to be interpreted in a defamatory sense. Allegations that the circumstances surrounding the making and publication of the statement were such as would convey a defamatory meaning, together with an explanation of meaning allegedly conveyed, “will suffice to survive demurrer if the court, in the exercise of its gatekeeping function, deems the alleged meaning to be defamatory.”

This language certainly seems to suggest that a court might properly dismiss a defamation claim if the full context of the statement is not pled in the complaint. In Potter v. Associated Press, however, the Eastern District of Virginia denied a motion to dismiss and allowed a defamation claim to go forward after expressly recognizing that the complaint omitted the full context of the statement and that the context was necessary to determine whether the statement could reasonably be interpreted to have defamatory meaning.
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June 6, 2015

The Elements of Defamation in Virginia

by Lee E. Berlik

To successfully maintain an action for libel or slander, a plaintiff’s complaint must allege facts that support each element of the tort. Failure to plead the required elements will lead to an early dismissal, and failure to prove the required elements at trial will result in losing the case. Trying to figure out exactly what those elements are, however, has never been easy in Virginia. Supposedly, the test for a valid defamation claim includes only three elements: (1) publication of (2) an actionable statement with (3) the requisite intent. The problem with applying this seemingly simply test is that element (2) is so complicated that it should really be broken down into several elements of its own. I attempted to do that with this blog post I wrote back in 2013, and I encouraged the Virginia Supreme Court to adopt a more useful seven-element test for defamation the last time I appeared before it, but my suggestion has not caught on with the justices. On June 4, 2015, the court decided Schaecher v. Bouffault, the new definitive case outlining the elements of defamation in Virginia.

Although the court still enumerates only three elements, we now have additional guidance on what it means to allege and prove an “actionable statement.” The two big takeaways from the case are (1) Virginia now follows Fourth Circuit precedent on the definition and scope of defamatory “sting”, and (2) it can be defamatory to call someone a “liar,” but whether such a statement will be actionable will depend on the circumstances surrounding the statement and the context in which it was made, as those considerations will govern whether the statement would be interpreted as a statement of fact (actionable) or opinion (not actionable). The gravity of the lie itself will also be relevant to the determination, as the lie must cause reputation to be adversely affected to a sufficient magnitude before it will be deemed defamatory.
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June 5, 2015

Just Because You Told The Truth Doesn’t Mean You Didn’t Slander Someone

by Lee E. Berlik

Criminal defense attorney Larry L. Archie received a good bit of publicity recently over his slogan, “Just Because You Did It Doesn’t Mean You’re Guilty,” as shown below on a North Carolina billboard. Yesterday, the Virginia Supreme Court issued a ruling that stands for a similarly counterintuitive proposition: despite the widespread notion that “truth is a complete defense” to defamation claims, you can’t always escape liability for slander even if everything you said was literally true. Even where the words, when read out of context, are literally true and defamatory meaning is not immediately apparent, Virginia law permits a plaintiff to maintain an action for defamation where innuendo would lead a reasonable reader to infer a defamatory meaning.

The case of Pendleton v. Newsome involves the heartbreaking story of a seven-year-old child with a severe peanut allergy who ingested a peanut at school and died. According to the allegations in the complaint, the child’s mother, Laura Mary-Beth Pendleton (the plaintiff) had informed the school staff earlier in the school year about her daughter’s severe allergy to peanuts, that she provided the school with specific instructions, signed by the child’s pediatrician, about how to treat her daughter in the event of an emergency, and that she brought in an “EpiPen Jr.” for the school to keep on hand to inject Epinephrine if needed. She alleges she was told by the school’s clinic assistant that they already had all the equipment they needed and didn’t need the EpiPen.
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