Public Concern Category Archives — The Virginia Defamation Law Blog Published by Reston Defamation Attorney — Virginia Slander & Libel Lawyer

September 2, 2023

Courts Won’t Resolve Scientific Controversies

If truth is a complete defense to a defamation action, what about “scientific truth”? Are scientific findings “facts” that can form the basis of a defamation action if a particular scientist contends they are inaccurate? If so, how much of a consensus is required before a matter of scientific inquiry can be considered “settled” and thus a matter of established fact? Anti-vaxxers have filed a number of defamation actions around the country against media outlets accusing them of spreading misinformation. Few (if any) have been successful. The consensus among the courts appears to be that defamation actions are not an appropriate means of addressing arguments over unsettled questions over which vaccines treat disease most effectively. It’s not so much a matter of whether matters of scientific inquiry should be regarded as facts or opinions but of the practical reality that academic questions on complex scientific topics just aren’t the sort of thing courts or juries are equipped to resolve as definitively true or false. Courts are interested in protecting First Amendment rights, not in picking sides in a scientific debate.

Case in point: Dr. Peter A. McCullough v. Gannett Company, filed earlier this year in the Eastern District of Virginia. Dr. Peter McCullough is a cardiologist and epidemiologist who has been a vocal critic of the medical response to the COVID-19 crisis. According to his complaint, he is “considered one of the world’s leading experts on COVID-19.” The Bartlesville Examiner-Enterprise, an Oklahoma newspaper owned by Gannett Company, ran a story in October 2021 about an upcoming appearance Dr. McCullough was to make at a local community center. The article contains several quotes from a Dr. Anuj Malik, an infectious disease physician who strongly disagreed with Dr. McCullough’s views on the effectiveness of the COVID vaccine. Dr. McCullough claimed the following statements attributed to Dr. Malik were defamatory: Continue reading

October 31, 2021

Discovery Requests Must Be Reasonable

by Lee E. Berlik

In a defamation case, like any other form of civil litigation, each side has a right of “discovery” to obtain information from each other and from third parties that may be relevant to the dispute. When the rules work as intended, there are no unexpected surpise witnesses or documents at trial–each side should be well aware of the information the other side intends to present at trial so they can plan accordingly. Federal Rule of Civil Procedure 26 allows parties to “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). This rule allows parties to obtain just about any form of evidence provided it’s relevant and not protected by the attorney-client privilege, work-product doctrine, or other privilege. And for purposes of discovery, most courts apply a lower standard for relevance than they would apply at trial. Information may be discoverable even if only slightly relevant to the case, provided the burden of obtaining and producing the information is justified by the needs of the case. Generally speaking, the less money there is at stake in the litigation, the more relevant the information will have to be before a court will order a party to produce it in discovery. The rules dictate the courts consider “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit” in assessing whether to compel a party to incur expense or burden in producing information not easily accessible. (See Fed. R. Civ. P. 26(b)(1)).

You can also obtain information from third parties who aren’t involved in the litigation if they are in possession of relevant information. This is accomplished through the issuance of subpoenas. (See Fed. R. Civ. P. 45(1)(A)(iii)). Courts typically won’t require third parties to incur substantial burden or expense unless the information is highly relevant and not obtainable from other sources, as third parties aren’t involved in the case and have no stake in the outcome. When a subpoena is directed to a third party, “courts must give the recipient’s nonparty status ‘special weight,’ leading to an even more ‘demanding and sensitive’ inquiry than the one governing discovery generally.” (See Va. Dep’t of Corrs. v. Jordan, 921 F.3d 180, 189 (4th Cir. 2019)). In particular, courts will consider (1) the extent to which the requesting party actually needs the information, measured by whether the information is likely to offer value over and above what the requesting party already has; (2) whether the requesting party can obtain the same or comparable information from other sources; and (3) the extent to which the request will impose a substantial burden on the recipient or others who might be affected (such as cost, overbreadth, privacy, and confidentiality interests).

September 4, 2015

Distinguishing Public Officials from Public Figures

by Lee E. Berlik

In every defamation case, it’s necessary to determine whether the plaintiff should be treated as a public figure, a public official, or a regular Average Joe. This is because “public” plaintiffs face a much higher burden of proof than “private” plaintiffs. A private plaintiff normally only needs to prove that a defamatory statement was made with negligence in regard to whether the statement was true or false, whereas a public plaintiff generally needs to show that the defendant acted with malice, which is much more difficult to prove than negligence. There are many justifications for the discrepancy, but the most frequently cited are that (a) public plaintiffs voluntarily assumed the spotlight, and they should know that having people talk loosely about them comes with the territory, and (b) by virtue of their notoriety, public plaintiffs have more opportunities to rebut defamatory statements. Courts sometimes use the terms “public figure” and “public official” interchangeably, but they are conceptually different, and different considerations determine whether a plaintiff should be treated as one or the other.

The main distinguishing feature is that public officials are not necessarily attention-seeking, and as a result, they are not always treated as “public” plaintiffs who would need to show malice in order to prevail in a defamation action.
Continue reading

April 13, 2015

A Brief History of Virginia’s Anti-SLAPP Statute

by Lee E. Berlik

The First Amendment guarantees, among other freedoms, “the right of the people…to petition the Government for a redress of grievances.” This right to petition is part of the First Amendment‘s free-speech protection, as it pertains to a particular form of freedom of expression. A lawsuit aimed at deterring or punishing citizens from exercising this First Amendment right, or from otherwise exercising their right to freely express their political views or engage in discourse on a matter of public concern, is known as a “SLAPP” suit. (SLAPP stands for “Strategic Lawsuit Against Public Participation”). SLAPP suits usually don’t advertise the fact that they seek to chill the expression of ideas; they are often disguised as legitimate lawsuits for defamation or some other tort.

A majority of states have passed anti-SLAPP laws designed to facilitate the identification and early dismissal of frivolous SLAPP suits. Virginia is not one of those states. Until recently, Virginia had no anti-SLAPP law to speak of and gained a reputation among plaintiff’s lawyers as a welcoming jurisdiction friendly to questionable defamation suits. A movement is underway to fix that. A flurry of defamation lawsuits filed in Virginia by California congressman Devin Nunes inspired the introduction of House Bill 759, designed to bring Virginia’s anti-SLAPP law more in line with California’s more robust First Amendment protection. California’s anti-SLAPP law allows a defendant to make a “special” motion to dismiss if he or she can show the plaintiff’s claim arises from a statement made in connection with a public issue in furtherance of the right to free speech. If the court grants one of these special motions to strike, the anti-SLAPP statute requires the unsuccessful plaintiff to pay the defendant’s attorneys’ fees. (Attorneys’ fees are normally not recoverable in defamation actions, so this can be a powerful deterrent against meritless lawsuits.)

As of this writing, Virginia still has not enacted a traditional anti-SLAPP statute. But the law has evolved over the past 10-15 years and the trend is towards increased protection for free-speech rights. Here’s how Virginia’s anti-SLAPP protection has evolved over the years:
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

June 27, 2014

Defamatory and Scandalous Material as Grounds to Seal Record

by Lee E. Berlik

In bankruptcy court, the presumption in favor of public access to judicial records can be overcome if “scandalous or defamatory matter” is contained in a paper filed therein. (See 11 U.S.C. Section 107). Curiously, there is an absolute judicial privilege for statements made in connection with and relevant to a judicial proceeding, so normally one wouldn’t expect to find “defamatory matter” in a court filing. Still, there is a relevance requirement to be entitled to the privilege, and there’s always a possibility that potentially defamatory or scandalous statements will be made in a court filing that have nothing to do with the underlying merits. And that’s exactly what happened in the recent case of Robbins v. Tripp.

Attorney John W. Tripp was handling a case in bankruptcy court when certain issues arose relating to perceived problems with his practice. The court ordered him to prepare and file a report containing details relating to his organization of files, supervision of staff, communication with clients, and related matters. The bankruptcy court instructed that the report be written “candidly and not as an advocate for any party to this matter.” Mr. Tripp moved for leave to file the report under seal, based in part on Section 107’s “scandalous or defamatory” provision. The motion was granted, and the trustee appealed.
Continue reading

March 31, 2014

The Unintended Consequences of Filing a Lawsuit

by Lee E. Berlik

Defamation law affords remedies to plaintiffs whose reputations have been tarnished by the false and damaging statements of others. But defamation plaintiffs face a particular dilemma: because legal proceedings are generally open to the public, filing a lawsuit over the libel or slander usually results in further publicity of the very statements the plaintiff wants to suppress. This has become known as the Streisand Effect, and is the same dilemma faced by plaintiffs seeking to enforce contracts containing non-disparagement provisions.

A vivid example is provided by the case of Dr. Steven A. Guttenberg v. Dr. Robert W. Emery, currently pending in District of Columbia federal court. Doctors Guttenberg and Emery were joint shareholders of an oral surgery practice for roughly 20 years, but their relationship soured and litigation ensured in 2008. The doctors settled that case with a settlement agreement containing a non-disparagement provision that restricted each of them from making statements concerning the other that might be harmful to reputation.
Continue reading

November 4, 2013

Why Suing Your Critics Is Not Always a Good Customer-Relations Strategy

by Lee E. Berlik

Emily Hughes is an unhappy customer of Johnson Utilities, which supplies water to parts of Arizona. Emily posted various complaints to a Facebook group in which she described “yellow water” coming from her faucets and expressed dismay about low water pressure. Until recently, I had never heard of Emily Hughes, Johnson Utilities, or the allegations about yellow water being supplied to certain residents of Arizona. But Johnson Utilities decided that the appropriate means to address the situation was to sue Emily for defamation. That caused the story to show up in my news feed, mostly in the form of opinion pieces mocking the lawsuit.

The reason the lawsuit strikes so many as silly is that Emily Hughes didn’t just write about the yellow water entering her home, she took a video of it. The video clearly shows yellow water coming out of a faucet. She uploaded the video to a Facebook page entitled “Citizens Against Johnson Utilities”–a page ostensibly formed by citizens concerned with the local water provider’s environmental practices as well as low water pressure in the area. The site was renamed “The San Tan Valley Safe Water Advocates” in August. CBS 5 News included Emily’s video in a televised report about consumer complaints regarding the water supplied by Johnson Utilities.

At first glance, the complaint appears to have very little merit. Johnson Utilities complains about things that are generally not actionable in a court of law, like Emily expressing “extreme hostility” towards Johnson Utilities, going on a “ceaseless vendetta,” and posting various “disparaging statements” on Facebook. Johnson even makes the yellow water.jpg odd allegation that Emily’s opposition to a rate increase was part of a scheme to defame the company. The lawsuit suggests she would “oppose any rate changes that could be beneficial” to the utility company, without recognizing the possibility that Emily might just prefer not to have to pay more money for water.

August 19, 2013

Anti-SLAPP Law Will Not Immunize Every Statement About a Celebrity

by Lee E. Berlik

Anti-SLAPP laws provide an expedited procedure for dismissing lawsuits that are filed primarily to inhibit the valid exercise of constitutionally protected speech. A defendant seeking to avail herself of an Anti-SLAPP statute must show that the allegedly defamatory statements concern a public matter or a matter of public interest. Not all statements about a person in the public eye qualify. Rather, the subject of the statement must be involved in a public controversy or be so famous that her involvement in a private dispute is a matter of public interest. A California appellate court recently addressed this issue in Albanese v. Menounos and concluded that some celebrity disputes are just none of our business and don’t require the protection of the anti-SLAPP statute.

Lindsay Albanese is a celebrity stylist who worked at NBC for several years as a stylist for Maria Menounos of Access Hollywood fame. Albanese contends that on one occasion after leaving NBC, when Albanese and Menounos ran into each other at an event, Menounos loudly proclaimed that “Dolce and Gabbana won’t lend to me anymore because they said you never returned anything.” Menounos also allegedly told someone at the party afterwards that Albanese had stolen from her while she worked at NBC.

Albanese sued Menounos for defamation, tortious interference with prospective economic advantage, and intentional infliction of emotional distress, arguing that the statements were made with malice, actual knowledge of their falsity, and with specific intent to injure Albanese’s reputation and employment. Her complaint seeks damages for injury to her personal, business and professional reputation, embarrassment, humiliation, severe emotional distress, shunning, anguish, fear, loss of employment and employability and economic loss in the form of lost wages and future earnings. Menounos moved to strike the complaint under California’s anti-SLAPP law.

July 29, 2013

Mann’s Defamation Suit Survives Anti-SLAPP Motion

by Lee E. Berlik

Well-known climate scientist Michael Mann made good on his threat to sue the National Review and columnist Mark Steyn for defamation based on statements made online questioning Mann’s global warming research. In response, the defendants filed a special motion to dismiss under D.C.’s anti-SLAPP statute, arguing that the online statements were made in furtherance of the right of advocacy on an issue of public interest. The court found that the anti-SLAPP statute did apply but nevertheless denied the motion.

Mann is a professor of meteorology and the Director of the Early System Science Center at Penn State. He is well known for his research on global warming and has published papers and books on the subject. The University of East Anglia’s Climate Research Unit (CRU) exchanged emails with Mann which were later misappropriated. In one email, a CRU scientist referred to Mann’s “nature trick” of adding in real temperatures for the last twenty years and from 1961 to “hide the decline.” Upon discovery of the emails, the University of East Anglia investigated the matter and concluded that the honesty and rigor of the CRU scientists was not in doubt but that the email referencing Mann’s “nature trick” was misleading.

In 2010, Penn State initiated an investigation of Mann and the CRU emails. The investigatory committee was comprised entirely of Penn State faculty members. Based on an interview with Mann, the committee cleared Mann of three of four charges against him. The last charge involved an allegation that Mann’s research might deviate from accepted norms. The committee interviewed an MIT professor who was critical of Mann’s work and later expressed dismay with the scope of the investigation and the committee’s analysis of the CRU emails.