The Virginia Defamation Law Blog
For an untrue statement about a person to be actionable as libel or slander, it has to be defamatory in nature. I’ve written about defamatory meaning before, but basically what this means is that the statement has to be more harmful than a mere insult; rather, it must cast a person is such a negative light that people hearing or reading the statement would be deterred from associating or dealing with the person about whom the statement was made. A defamatory statement thus lowers its subject in the eyes of the community. But which community are we talking about? Who are these people in whose estimation one may be defamed? Suppose a person is falsely accused of having been discovered in possession of an assault rifle. Whom should we ask about whether that statement carries defamatory meaning, the National Rifle Association or the Coalition to Stop Gun Violence?
There’s not a whole lot of case law to answer this question. The position of the Restatement of Torts is that a “communication to be defamatory need not tend to prejudice the other in the eyes of everyone in the community or of all of his associates, nor even in the eyes of a majority of them. It is enough that the communication would tend to prejudice him in the eyes of a substantial and respectable minority of them.” (See Restatement (Second) of Torts § 559 cmt e). That seems to be the majority position in courts across the country, including Virginia, whether they express the principle in these terms or not.
(Note: The Supreme Court of Virginia has cited Section 559 for the proposition that defamatory words are those “tending so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” (See Schaecher v. Bouffault, 290 Va. 83, 91–92 (2015)). The “substantial and respectable minority” language is found in Comment e to that section, but neither the Supreme Court of Virginia nor any state court in Virginia has expressly adopted this standard for defining the relevant community).
The key thing to keep in mind is that a person can be defamed by a falsehood even if the world has not arrived at a consensus of opinion about whether such a statement would harm or improve a person’s reputation. To win a defamation case, you don’t need to prove that your reputation has suffered in the eyes of a majority of the community; if a large number of respectable people would regard the plaintiff with contempt upon hearing the false statement, actionable harm results.
Just a few days ago, a state appellate court in New York grappled with the question of whether being falsely identified as HIV-positive should qualify as defamation per se under the “loathsome disease” component of that test. The court held that it should, despite that fact that the court itself did not consider HIV to be a loathsome disease. Essentially, the court is saying that even though we’ve come a long way as a society, a substantial and respectable segment of the public would still likely be wary of a person known to be HIV 
positive, so being falsely identified as HIV positive has defamatory meaning sufficient to be actionable. And this is true regardless of whether, as a matter of policy, society should hold HIV-positive individuals in low esteem.
The case is Avril Nolan v. State of New York. Avril Nolan did some modeling for a magazine article about music. A couple of years later, the photographer sold an image of her to Getty Images (a supplier of stock photography), which in turn licensed the photo to the New York State Division of Human Rights (DHR). DHR used the photo in connection with an advertising campaign designed to inform HIV-positive New Yorkers of their rights not to be discriminated against. Set against a photo of Ms. Nolan, the ad read “I AM POSITIVE (+)” and “I HAVE RIGHTS.” In smaller print, the ad stated “People who are HIV positive are protected by the New York State Human Rights Law. Do you know your rights? Contact the NYS Division of Human Rights.” Ms. Nolan was not HIV-positive and sued for defamation and related claims.
In New York, statements that impute to the plaintiff a “loathsome disease” are defamatory per se. The state argued that HIV infection was no longer viewed with scorn or contempt under prevailing community attitudes and therefore should not be considered “loathsome” or defamatory. It pointed out society’s acceptance of HIV-positive celebrities like Charlie Sheen and Magic Johnson. Nolan argued that being labeled HIV-positive can still result in societal ostracism.
The court noted that defamatory material is that which “tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community, even though it may impute no moral turpitude to him.” Citing several sociological studies showing that people fear getting tested for HIV because of the perceived social repercussions of a positive result, the court held that the DHR ad was defamatory because, despite changes in community attitudes, “it can still be said that ostracism is a likely effect of a diagnosis of HIV.”
The court offered this thoughtful explanation of why it makes sense to examine the views of a substantial segment of society even if those views are misguided:
This is not to imply that we in any way regard HIV or any other disease to be “loathsome,” and we disfavor the use of that word. Society aspires to embrace people with various medical conditions, as reflected in the Americans with Disabilities Act and the myriad state and local statutes and ordinances requiring accommodations for and equal treatment of such persons. Accordingly, we prefer a formulation that makes clear that an imputation of a particular disease is actionable as defamation per se not because the disease is objectively shameful, but because a significant segment of society has been too slow in understanding that those who have the disease are entitled to equal treatment under the law and the full embrace of society. Such a reworking of the category reflects the reality that those who suffer from the condition are the unfortunate targets of outmoded attitudes and discrimination.
Currently pending before the Fourth Circuit is the defamation case brought against Katie Couric by the Virginia Citizens Defense League, in which this “defamatory meaning” issue is squarely before the court. A federal trial judge found that manipulative video editing was insufficient to harm the reputation of the plaintiffs in the estimation of the community. But did the court examine the attitudes held by the group of people whose opinions should matter for purposes of stating a valid defamation claim? The Fourth Circuit will make its position known in the near future.