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When SolAVerde’s attorney spoke to the media about his client’s defamation claims against the Town of Front Royal and certain councilmen, he sounded pretty confident. The court, however, disagreed with his arguments and dismissed the Town from the lawsuit, finding it to be immune. The court also dismissed the defamation claims against the other defendants, but left the door open for SolAVerde, a Virginia solar energy company, to amend its claims against them.

The Complaint alleged that the defendants, in effect, accused the owners of SolAVerde of offering a bribe to public officials in connection with the bidding on a contract for a solar energy processing and production facility. According to plaintiff, a member of the Front Royal town council, whom they were unable to identify specifically, leaked a memorandum to the news media that raised the question of whether certain proposed monetary incentives were actually bribes. The plaintiffs sought $30 million in reputational damages.

However, in a May 26, 2011, opinion, Judge Paul Peatross Jr., sitting by designation in the Warren County court, dismissed the defamation claim. He found that the town was entitled to sovereign immunity because whatever the council members had done in connection with the bids and the possible contract, they were making a governmental decision. “The doctrine of sovereign immunity protects municipalities from tort liability arising out of the exercise of governmental functions,” he wrote. Judge Peatross concluded that the acts alleged by the plaintiffs, including the alleged leak of the document, “amount to a governmental function by the Town of Front Royal acting in its legislative capacity regarding the consideration of solar power for the Town of Front Royal,” and that the town is thus immune from defamation liability.

The tort of defamation is widely misunderstood. Social media outlets like Facebook, LinkedIn and Twitter, which allow easy publication and dissemination of information to a wide audience, are leading to a rise in defamation lawsuits in Virginia and around the country. To be insulted by another, especially when it happens in a public forum, can be hurtful and embarrassing. Whether the insult constitutes actionable defamation under Virginia law, however, or whether it is sufficient to satisfy Virginia’s “insulting words” statute, can present some complicated issues, often implicating the United States Constitution. Relevant considerations for any lawyer examining a defamation claim include the type and context of the speech, the identity of the speaker, the identity of the plaintiff, and the existence of qualified immunity or other defenses.

In Virginia, defamation includes both libel (written defamation) and slander (spoken defamation). There is no need for clever mnemonic devices to distinguish libel from slander, because Virginia law makes no meaningful distinction between the two and speaks only of the merged tort of defamation. The essence of any defamation claim is that a defendant published a false factual statement that concerns and harms the plaintiff or the plaintiff’s reputation. While it is common to recite that “truth is a defense,” that is not technically true, as falsity is a required element of the plaintiff’s proof.

Proof of several elements is required. The defendant must know that the statement was false or must have lacked a reasonable basis for believing it to be true. Defamatory words that cause prejudice to a person in her profession are actionable as defamation “per se,” meaning that it is not necessary to prove actual injury to reputation. Expressions of opinion, however, are constitutionally protected as free speech. Therefore, mere statements of opinion cannot form the basis of a defamation lawsuit.

Articles Posted in Slander

Virginia Defamation Lawyer’s Arguments Rejected in Warren County