Defamation Per Se Category Archives — Page 3 of 4 — The Virginia Defamation Law Blog Published by Reston Defamation Attorney — Virginia Slander & Libel Lawyer

August 11, 2014

Familiar Rhetorical Devices May Not Carry Defamatory Meaning

Extortion is a crime. Statements that falsely accuse another of committing a crime often constitute defamation per se in Virginia, particularly where the crime is one involving “moral turpitude.” Does it follow, then, that false accusations of extortion will automatically qualify as defamation per se? The answer, which will undoubtedly surprise many of you, is no. The reason lies in the importance of context in defamation actions.

A good illustration comes from the Tenth Circuit, which issued its decision in Hogan v. Winder a few days ago. Chris Hogan worked as a consultant for the Utah Telecommunications Open Infrastructure Agency (“UTOPIA”), a state agency charged with upgrading high-speed Internet access. In the spring of 2011, Hogan began to suspect that UTOPIA’s executive director unfairly favored a bid for a contract from the company where the director’s brother worked, and he expressed his suspicions to UTOPIA’s plant manager. He was terminated shortly thereafter. Believing that his termination was retaliatory, he hired a lawyer and sent UTOPIA a draft complaint along with certain settlement demands, pointing out that the public scrutiny that would result from filing the lawsuit would essentially destroy the company. In a response, UTOPIA’s attorney characterized Hogan’s demands as “extortion” and “blackmail.”
Continue reading

July 29, 2014

Virginia Lawyer Says TV Report of Criminal Conviction Defamatory

by Lee E. Berlik

According to The Virginian-Pilot, Portsmouth attorney Sterling H. Weaver was “convicted in Portsmouth General District Court of assault” in June 2006. A new lawsuit filed by that attorney alleges that a WAVY-TV report, broadcast in February 2014, reported similarly that “in 2006, a Chesapeake judge sentenced [Mr. Weaver] to 30 days in jail for grabbing a prosecutor by the throat after she asked to postpone a case.” (The quote is from the complaint, not the WAVY-TV report). Mr. Weaver says that he heard the report while in jail, where he was staying after being “indicted for assault on a law enforcement officer and sexual battery of that officer.” The report was defamatory, the lawsuit claims, because “the 2006 charge of assault was dismissed.”

Those of you who share with me an unnatural interest in Virginia defamation law are naturally curious as to what the issues in this case are going to be. There are several in my mind, but here are the first few that jump out:
Continue reading

April 21, 2014

Nude Model Not a Porn Star; Photo Altered to be Pornographic Defamatory Per Se

by Lee E. Berlik

In James M. Tharpe, Jr. v. Rudy K. Lawidjaja, currently pending in the Lynchburg Division of the Western District of Virginia, plaintiff James Tharpe, a professional soccer coach and part-time model, alleges that photographer Rudy K. Lawidjaja persuaded him to pose nude after assuring him that no photographs showing Tharpe’s genitals or buttocks would be distributed. Lawidjaja took numerous nude photos of Tharpe and promoted him as a model. Eventually, the parties’ relationship deteriorated. Tharpe refused Lawidjaja’s invitation to quit his job as a soccer coach to relocate to the Washington, D.C. area and serve as Lawidjaja’s “house model.” Instead, he moved to Tennessee, where he coached soccer for a year, and later accepted a coaching position with Central Virginia United Soccer Club (“CVUS”) in Lynchburg.

In August 2011, CVUS notified Tharpe that an Internet search of his name returned inappropriate and embarrassing photographs of which parties associated with the soccer club did not approve. According to the court’s examination of the record, Lawidjaja had posted nude photographs of Tharpe on his website as well as other sites, identified Tharpe as a “porn star,” and digitally altered the photographs to depict Tharpe with an erection and ejaculating for the camera. The court found that Lawidjaja tagged these pornographic photographs with keywords to link the photos to CVUS (Tharpe’s employer, which had nothing to do with the photos) so that any Google search for CVUS would return the photographs. Tharpe sued Lawidjaja for defamation, intentional infliction of emotional distress, and other torts.
Continue reading

January 6, 2014

Defamed Business Entitled to Presumed Damages, But No Injunction

by Lee E. Berlik

In Virginia, a statement may constitute defamation per se if it imputes an unfitness to perform the duties of a job or a lack of integrity in the performance of those duties, or if it prejudices the plaintiff in its profession or trade. Corporations, like people, can be defamed in this manner. To prejudice a plaintiff in its profession or trade, the statements must relate to the skills or character required to carry out the particular occupation of the plaintiff. Examples include statements that cast aspersions on the target’s honesty, credit, efficiency, or its prestige or standing in its field of business. The advantages to a plaintiff when the words at issue are declared defamatory per se (as opposed to per quod) are significant: compensatory damages will be presumed and need not be proven, and punitive damages may be awarded even if compensatory damages are not.

The United States District Court for the Eastern District of Virginia applied these principles in JTH Tax, Inc. v. Grabert. JTH Tax (better known as Liberty Tax Service) franchises tax preparation centers throughout the United States. Trisha Grabert had signed four franchise agreements but was terminated by Liberty due to her alleged failure to submit required reports and pay monies owed. A disgruntled Grabert resorted to www.unhappyfranchisee.com and Facebook, where she posted numerous statements asserting, among other things, that (1) Liberty’s quarterly results were “lies and sloppy;” (2) Liberty “bribed” an individual “to testify falsely;” (3) Liberty was engaged in “unlawful actions” that “interfered with [Grabert’s] success;” (4) Liberty “steal[s]” tax stores from franchisees; (5) Liberty is “dirty and getting sloppy so they will take your first born to save their tail right now from crippling losses and a shutdown;” and (6) “Liberty Tax, as a whole” are “crooks.”

Liberty sued Grabert for defamation per se, as well as for breach of the notes and franchise agreements. The court found that the statements imputed a lack of integrity to Liberty, prejudiced Liberty in its profession, and cast aspersions on its honesty, efficiency, prestige and standing in its field. Because Grabert failed to appear and defend the accuracy of her statements, the court held that the exhibits were sufficient to demonstrate defamation per se. (Note: Oddly, the court did not address whether the statements could be interpreted as mere rhetorical hyperbole or other non-actionable opinion).

February 22, 2013

False Accusation of Sexual Aggressiveness Per Se Defamatory, Claims FBI Agent

by Lee E. Berlik

Workplace defamation suits will usually raise privilege issues. When one employee complains to a manager or supervisor about another employee and falsely maligns the other employee’s reputation in the process, the court will need to sort out whether the complaint is protected by qualified privilege. If it is, the statement can’t form the basis for a claim unless it was made with common-law malice or made to persons having no business hearing it. Common-law malice is different than the constitutional “New York Times” malice so often discussed in analyzing defamation liability. Common-law malice generally refers to some form of ill will on behalf of the speaker, motivated by things like hatred or a desire for revenge. In Virginia, there is a presumption that the speaker acted without malice.

When a slanderous statement occurs at work, it often involves an accusation that a co-worker is unfit to perform the duties of his or her job, due to a lack of competence or lack of integrity. Statements such as these which prejudice a person is his or her profession fall into the defamation per se category, which means that a jury can presume the statement was harmful to the plaintiff, even if special damages are not proven.

Earlier this month, a case from Stafford County was removed to federal court in Alexandria. Suzanne Brown, the plaintiff, was an FBI agent assigned to the Behavioral Analysis Unit (BAU) within the Critical Incident Response Group (CIRG). The BAU handles cases involving threatened violence against public officials, and as a program manager, Brown was responsible for assessing such threats. Katherine Schoeneman, the defendant, is a psychologist who had formerly worked with Brown on some threat assessment cases under a contract with CIRG. Schoeneman offered her psychological observations while Brown provided investigative and law enforcement expertise.

February 10, 2013

Defamation of Character: Libel and Slander Law in Virginia

by Lee E. Berlik

Under Virginia law, the necessary elements of the tort of defamation (which includes both libel and slander) are usually expressed as (1) a publication about the plaintiff, (2) of an actionable statement, (3) with the requisite intent. This sounds simple enough, but proper application of these principles is far more complicated than one would expect. This is, in part, due to the fact that the test is circular, as it begs the question of what an “actionable statement” is. It is more useful to think of Virginia law of defamation as encompassing the following eight elements: (1) a factual assertion (as opposed to an expression of opinion); (2) that is false; (3) and defamatory in nature; (4) that is about the plaintiff; (5) and made to a third party; (6) in a setting or context that isn’t privileged; (7) with the requisite degree of fault; (8) that causes actual or presumed damages (generally consisting of financial loss, loss of standing in the community, and/or emotional distress).

Element (6) refers to a defense, not an element of the plaintiff’s proof, but I’ve included it in the list to clarify that an otherwise defamatory statement made in a privileged setting will not be actionable in a court of law. Furthermore, element (8)–damages–is presumed (and need not be proven) in those situations deemed to constitute “defamation per se.”

Libel and slander will be considered “per se” defamatory if it (1) imputes the commission of a crime involving moral turpitude; (2) imputes that the person is infected with a contagious disease which would exclude the party from society; (3) imputes an unfitness to perform the duties of a job or a lack of integrity in the performance of those duties; or (4) prejudices the party in his or her profession or trade. Statements that might qualify as defamation per se include an allegation that one has acted unprofessionally, an attack on a person’s honesty and veracity, a false report of a corporations’ profit and earnings, a statement regarding a company’s inability to pay bills, and a statement suggesting a person is an incompetent businessman.

December 5, 2012

How to Lose Your Defamation Case in Three Easy Steps

by Lee E. Berlik

First, don’t hire a lawyer. (What do lawyers know about defamation law, anyway?) Second, refuse to comply with the court’s orders and local rules. Finally, file a whole bunch of frivolous and nonsensical motions, such as a “Motion for Declaration All Rulings & Judgments Be Rendered Null & Void,” a motion against opposing counsel for engaging in “felonious conspirator tactics,” and a “Motion to Declare All Your Base Are Belong to Us.” With the exception of the “all your base” example, a defendant recently tried all of these tactics in North Carolina federal court and came away with a judgment against him that included punitive damages.

William Mann, a member of the Professional Golfers Association Hall of Fame, acquired a North Carolina country club but then declared bankruptcy and moved to South Carolina. M. Dale Swiggett sent a letter to hundreds of recipients accusing Mann of fraud and crimes and claiming Mann left North Carolina after declaring bankruptcy and paid cash for his South Carolina house. Swiggett then sent a letter to the judge who had presided over Mann’s bankruptcy, accusing Mann of covering up “sludge spreading and spills.”

Mann sued Swiggett in the Eastern District of North Carolina for libel, seeking $2 million in compensatory damages and $2 million in punitive damages for injury to his reputation and livelihood. Swiggett, acting pro se, responded by overloading the court’s docket with numerous groundless motions, inducing the court to strike his Answer as a sanction. After entering summary judgment in Mann’s favor, the only remaining issue was the amount of damages.

September 3, 2012

Fraud Accusations Prompt Michael Mann’s Lawyers to Threaten Litigation

by Lee E. Berlik

Climate change scientist Dr. Michael Mann is threatening legal action against the National Review magazine for a blog post that appeared in “The Corner” section of its online publication. In the article, journalist Mark Steyn quoted writer Rand Simberg’s observation that Dr. Mann “could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data…” Mr. Steyn went on to call Mann “the man behind the fraudulent climate-change ‘hockey stick’ graph, the very ringmaster of the tree-ring circus.”

In a demand letter to the National Review, Dr. Mann’s attorney, John Williams, contends that Mr. Steyn’s statements amount to accusations of academic fraud and constitute defamation per se. He argues that the statements were false and were made with the knowledge that they were false. He cites several inquiries into his research which concluded that he has not engaged in academic fraud as proof that Mr. Steyn’s statements are false. Dr. Mann demands that the National Review retract the article and apologize or face legal action.

Dr. Mann may have a valid complaint, but he is going to have his work cut out for him. Dr. Mann is a well-known, much published and often quoted figure in the climate change debate. In fact, Dr. Mann has written a book on the climate change controversy. Courts have held that scientists who inject themselves into public controversies over scientific and political debates are public figures. As a public figure, Dr. Mann would have to prove by clear and convincing evidence that the National Review published a provably false statement with knowledge that it was false or with reckless disregard of whether it was false or not.

August 13, 2012

Doctor’s Defamation Claim Reconsidered by Judge Roush

by Lee E. Berlik

Judge Jane Marum Roush of the Fairfax Circuit Court has allowed Dr. Adel Kebaish to amend his complaint against Inova Fairfax Hospital to include four additional statements claimed to be defamatory. Judge Roush had previously found the alleged statements non-actionable but was persuaded by the plaintiff’s attorneys to partially reconsider her earlier ruling.

Dr. Kebaish was an orthopedic and spine trauma surgeon at Inova Fairfax Hospital. Dr. Kebaish claims that Inova and several of its doctors and physician assistants defamed him and that Inova terminated him for objecting to substandard care and fraudulent billing practices. He filed a complaint against Inova, one of its administrators and ten of its doctors and physician assistants alleging causes of action for defamation per se as well as other business torts. The defendants demurred on various grounds.

The court reviewed each of the allegedly defamatory statements in the complaint and agreed with Inova that most of the statements were either statements of opinion, not actionable as defamation, or made by persons who were not named as defendants. To successfully state a claim for defamation in Virginia, a plaintiff must show that the defendant published a false factual statement that harms the plaintiff or the plaintiff’s reputation. Expressions of opinion are constitutionally protected and are not actionable as defamation.

April 23, 2012

Defamation Plaintiffs Must Plead Exact Words and Non-Privileged Publication

by Lee E. Berlik

The elements of a defamation claim in Virginia are (1) publication, (2) of an actionable statement and (3) the requisite level of intent. A statement regarding a person’s professionalism may constitute defamation per se (meaning the plaintiff need not prove actual damage to reputation) if it implies that the person is unfit to perform the duties of his job, lacks integrity in performing those duties, or if it would tend to “prejudice” the plaintiff in his profession. Fairfax Judge Robert J. Smith, in a detailed opinion, recently made clear that to survive demurrer, a plaintiff must also state the exact words alleged to be defamatory, and must show that the defamation occurred in a non-privileged setting.

In Tomlin v. IBM, three former IBM employees brought defamation claims against IBM and five individuals. IBM received an anonymous letter alleging that Ms. Tomlin acted unethically by hiring her brother, Mr. Tomlin. After an investigation, IBM terminated the employees. Plaintiffs claimed that IBM and the individual defendants made the following false and defamatory statements to IBM colleagues: that Ms. Tomlin acted unethically in hiring her brother and that she and Mr. Tomlin and plaintiff Williams conspired to cover up the unethical hiring; that Mr. Tomlin falsely claimed to have certain skills in his job application and did not meet the minimum qualifications for his consulting position; and that Mr. Williams submitted a fraudulent hiring form regarding Mr. Tomlin. Plaintiffs alleged that defendant Ms. Minton-Package told IBM employees that Ms. Tomlin was fired because she had hired her brother and tried to “cover it up.”

Although a plaintiff does not need to plead specifics such as the identity of the speaker and other details surrounding purportedly defamatory statements, the complaint must contain the exact words spoken or written. Tomlin’s complaint, however, merely alleged the general nature of the defamatory statements; only the statements imputed to Ms. Minton-Package contained exact words. The court found that the plaintiffs failed to plead the defamatory statements with sufficient particularity except as to Ms. Minton-Package, and it proceeded to examine publication only as to her.