The Virginia Defamation Law Blog
Defamation actions cannot be based on expressions of pure opinion because such statements are protected by the First Amendment. To survive a motion to dismiss, a plaintiff needs to allege a false assertion of fact. Separating fact from opinion, however, is not always as clear-cut as one might expect. Courts have reached differing conclusions on whether words like “racist” and “unethical” state facts or merely personal opinions. The easiest way to distinguish fact from opinion is to ask whether the statement is capable of being proven true or false. If so, it’s likely a factual statement. (Statements of opinion can’t be proven true or false because they depend on the speaker’s personal, subjective viewpoint.) To do this, it’s necessary to determine exactly what “the statement” is. In other words, what, exactly, is the message the defendant has conveyed to others about the plaintiff that has caused (or is causing) an adverse effect on the plaintiff’s reputation? This is where it becomes necessary to examine the precise context in which the statement was made.
In Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40, 48 (2009), the Virginia Supreme Court held that in analyzing whether a statement claimed to be defamatory is one of fact or opinion, “a court may not isolate one portion of the statement at issue from another portion of the statement” but must instead “consider the statement as a whole.” The court explained that to fully understand the meaning of the statement being communicated, it’s necessary to view the words claimed to be defamatory together with any accompanying statements and not to examine portions of a larger statement in isolation. Courts also need to consider the speaker, the audience, and the means or media used to communicate the message.
Earlier this week, the Western District of Virginia issued an opinion supporting its decision to dismiss a defamation claim brought by an employee against her former employer arising out of critical statements made about her in a performance review. When the statements were considered in context, the court found them to be non-actionable opinion and dismissed the claim.
The case is Jacqualine Saville v. Northwestern Regional Jail Authority. Saville was a correctional officer who was reprimanded and terminated following an incident on September 21, 2020. Saville was later reinstated but claims her employer retaliated against her by treating her unfairly and defaming her, among other things. She was terminated again in connection with a physical altercation with an inmate. Her complaint alleged that NRJA employees made several defamatory accusations against her in the course of investigating her behavior 
and memorializing her termination, including the following:
- “The video shows that you were punching with closed fists a fully restrained arrestee/inmate.”
- “In agreement with the AI [sic] Investigation, I find that On September 16, 2020, you administered several closed fist punches and two knee strikes to a fully restrained arrestee/inmate. Afterwards, while in the pat down area you forcefully kicked the arrestee/inmate’s ankles. While you were administering punches/knee strikes an officer had ahold of your jacket telling you to stop.”
- “[Y]ou intentionally engaged in activity to conceal the nature of the incident.”
- “You also failed to report this incident to your immediate supervisor per policy.”
- “You would have most likely been charged and prosecuted for Assault and Battery.”
- “Your actions represent a gross violation of this trust and our oath.”
- “It was clear that she punched her and she knee struck her in the head?”
- “You were in the sally port but I don’t know if you were in there when she kicked her foot a couple of times. Do you remember that?”
- “Did you tell anybody about those punches and knee strikes?”
- “[The Inmate] was taken to the floor with several closed fist strikes being delivered to the head/shoulder area and two knee strikes by Lt. Saville.”
- “Lt. Saville kicked [the inmate’s] ankle twice to separate her feet more to complete a pat down.”
- “[S]he kicked [the inmate’s] ankle twice to move her feet apart further.”
With respect to the statements alleging that Saville punched and kicked an inmate, the court quickly disposed of these as the complaint itself acknowledged that Saville struck the inmate with her arm and kicked her. Whether the “arm strikes” amounted to “punches” was immaterial as the gist (or “sting“) of the accusation was substantially true.
Looking to the statements accusing Saville of failing to report the incident, the court explained that when viewed in the full context of the termination memorandum in which they were written, it became apparent that the statements expressed a subjective belief based on fully disclosed facts. Statements that include a factual basis for their conclusions are considered opinions and are not actionable as defamation. This is because the listener doesn’t need to infer an unintended meaning that might be defamatory; rather, a speaker’s complete statement, when it includes the factual predicate supporting the statement, unambiguously communicates to the listener that an opinion is being expressed. In this case, for example, the relevant portion of the termination memo didn’t merely state that Saville failed to report an incident. It included all of this additional explanation and context:
Additionally, once this incident was over you intentionally engaged in activity to conceal the nature of the incident. As a 17-year veteran of corrections, to include four years as a defensive tactics instructor and a member of the Special Operations Training Team, you are well aware of what qualifies as a “Use of Force” report. Yet you entered the report as an “Informational Report”. You admitted in your interview that you are aware that all Use of Force reports are reviewed by the facility investigator and the captain of security. You intentionally omitted the punches from your report. You failed to have a supervisor review the report as per policy. Aside from your captain, there were three other captains, several lieutenants and sergeants on duty who could have signed off on the report.
You also failed to report this incident to your immediate supervisor per policy. Towards the end of your interview, you stated that Captain Custer was gone for the day. However, Captain Custer was here on this date until approximately 1840 hours. You failed to report it to him on any of the days following this incident.
General Order #3 states that if an incident rises to the level of criminal in nature the superintendent may obtain a warrant, refer the matter to the appropriate law enforcement agency and/or refer to the Commonwealth Attorney. An investigator for the Frederick County Sheriffs Department was provided the video of the incident, your initial OMS report and Deputy Allday’s report. Deputy Allday, from the Winchester City Sheriffs Office, was present during the incident as she was one of the transporting officers of the arrestee/inmate. The investigator for the Sheriff’s Department indicated that he believed your actions were criminal in nature meeting the criteria for Assault and Battery. The Commonwealth’s Attorney agreed that your actions rose to the level of a crime, but stated that no charges could be brought forth as the statute of limitations had expired. The Commonwealth’s Attorney stated that their office would have prosecuted the case if the statute of limitations had not expired.
NRADC’s General Orders, the Department of Criminal Justice Services for the Commonwealth of Virginia and recent legislation is very clear on the outcomes of these types of offenses. Had you properly reported the incident over two years ago it would have been investigated at that time. You would have most likely been charged and prosecuted for Assault and Battery. A correctional officer is a position of trust. We take an oath to protect those in our charge. Your actions represent a gross violation of this trust and our oath. As a result of your actions, I intend to terminate your employment with NRADC.
Given this detailed explanation in which the basis for the conclusion was fully disclosed, the court found that no reasonable reader would consider the statement as anything but the opinion of the author drawn from the circumstances related, none of which was alleged to be false.
Finding the defamation claim to be based solely on statements of opinion, the court granted the motion to dismiss. In dicta, it observed that even if the statements were factual in nature, they would have been protected by qualified privilege anyway.