The Virginia Defamation Law Blog

September 4, 2015

Distinguishing Public Officials from Public Figures

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.
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July 29, 2015

Threats to Destroy Reputation May Constitute Blackmail

by Lee E. Berlik

Online review sites wield enormous power, and some enterprising consumers have begun leveraging that power to extract refunds or other benefits from businesses worried about protecting their online reputations. Suppose you’re at an orthodontist’s office being fitted for some $5000 braces when the orthodontist accidentally pierces the inside of your cheek. You decide that (a) the doctor is incompetent and (b) the world should be made aware of that fact for the good of mankind. Your first instinct is to go to Yelp or HealthGrades and write a scathing review warning the public about the dangers of dealing with this orthodontist. But then you realize you might be able to gain even greater satisfaction another way: you contact the doctor, tell him of your plans to write a negative online review, and offer to refrain from posting the review if he will waive the $5000 charge for the braces. You get free braces, and the doctor gets to preserve his 5-star Yelp rating. Win-win, right?

Consumers have a First Amendment right to express their opinions regarding products and services they have received, but things get a little tricky when people threaten to exercise that right as a means to extract money from someone. Some would call this blackmail, known in Virginia as extortion. Extortion is governed by Va. Code § 18.2-59, which provides in pertinent part, “Any person who (i) threatens injury to the character…of another person,…and thereby extorts money, property, or pecuniary benefit or any note, bond, or other evidence of debt from him or any other person, is guilty of a Class 5 felony.”
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July 18, 2015

Must Context Be Apparent from the Face of the Complaint?

by Lee E. Berlik

Last month, the Supreme Court of Virginia held in Pendleton v. Newsome that where defamatory meaning is not apparent from the face of a statement claimed to be defamatory, a plaintiff may introduce evidence to show that the statement was made in a context that would reasonably cause the statement to be interpreted in a defamatory sense. Allegations that the circumstances surrounding the making and publication of the statement were such as would convey a defamatory meaning, together with an explanation of meaning allegedly conveyed, “will suffice to survive demurrer if the court, in the exercise of its gatekeeping function, deems the alleged meaning to be defamatory.”

This language certainly seems to suggest that a court might properly dismiss a defamation claim if the full context of the statement is not pled in the complaint. In Potter v. Associated Press, however, the Eastern District of Virginia denied a motion to dismiss and allowed a defamation claim to go forward after expressly recognizing that the complaint omitted the full context of the statement and that the context was necessary to determine whether the statement could reasonably be interpreted to have defamatory meaning.
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June 27, 2015

The Virginia Model Jury Instructions for Defamation Lead to Bad Verdicts

by Lee E. Berlik

The idea of having your genitals and masculinity mocked by your doctor while laying unconscious on an operating room table is unappealing to say the least. But is it worth half a million dollars? As first reported by Washington Post reporter Tom Jackman, a Fairfax County man identified in court papers as “D.B.” inadvertently recorded his entire colonoscopy, and was later shocked to discover he had been ridiculed and insulted shortly after drifting off to sleep. He won a $500,000 verdict in his lawsuit against the anesthesiologist, Tiffany Ingham, and her practice, including $100,000 for defamation (you know, that tort that’s supposed to be about preventing and redressing attacks on one’s reputation). In my view, no defamation damages should have been awarded in this case, but it’s hard to imagine the case coming out any other way with the current limitations of the Virginia Model Jury Instructions.

Because D.B. recorded the procedure on his smartphone, the case presents a rare opportunity to listen to the actual words claimed to be defamatory as they were spoken. An excerpt of the recording is embedded below. One interesting question is whether the recording was properly admitted into evidence, as the recording would be considered illegal unless D.B. was a “party to the communication” (see Va. Code § 19.2-62(B)(2)), and D.B., though present and the subject of the discussion, was unconscious. But I digress. Listen to the recording and ask yourself: when Dr. Ingham remarks to her colleagues in the operating room that D.B. may have “tuberculosis in the penis” or syphilis, is she joking around, or asserting literally that D.B. actually had these conditions?
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June 6, 2015

The Elements of Defamation in Virginia

by Lee E. Berlik

To successfully maintain an action for libel or slander, a plaintiff’s complaint must allege facts that support each element of the tort. Failure to plead the required elements will lead to an early dismissal, and failure to prove the required elements at trial will result in losing the case. Trying to figure out exactly what those elements are, however, has never been easy in Virginia. Supposedly, the test for a valid defamation claim includes only three elements: (1) publication of (2) an actionable statement with (3) the requisite intent. The problem with applying this seemingly simply test is that element (2) is so complicated that it should really be broken down into several elements of its own. I attempted to do that with this blog post I wrote back in 2013, and I encouraged the Virginia Supreme Court to adopt a more useful seven-element test for defamation the last time I appeared before it, but my suggestion has not caught on with the justices. On June 4, 2015, the court decided Schaecher v. Bouffault, the new definitive case outlining the elements of defamation in Virginia.

Although the court still enumerates only three elements, we now have additional guidance on what it means to allege and prove an “actionable statement.” The two big takeaways from the case are (1) Virginia now follows Fourth Circuit precedent on the definition and scope of defamatory “sting”, and (2) it can be defamatory to call someone a “liar,” but whether such a statement will be actionable will depend on the circumstances surrounding the statement and the context in which it was made, as those considerations will govern whether the statement would be interpreted as a statement of fact (actionable) or opinion (not actionable). The gravity of the lie itself will also be relevant to the determination, as the lie must cause reputation to be adversely affected to a sufficient magnitude before it will be deemed defamatory.
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June 5, 2015

Just Because You Told The Truth Doesn’t Mean You Didn’t Slander Someone

by Lee E. Berlik

Criminal defense attorney Larry L. Archie received a good bit of publicity recently over his slogan, “Just Because You Did It Doesn’t Mean You’re Guilty,” as shown below on a North Carolina billboard. Yesterday, the Virginia Supreme Court issued a ruling that stands for a similarly counterintuitive proposition: despite the widespread notion that “truth is a complete defense” to defamation claims, you can’t always escape liability for slander even if everything you said was literally true. Even where the words, when read out of context, are literally true and defamatory meaning is not immediately apparent, Virginia law permits a plaintiff to maintain an action for defamation where innuendo would lead a reasonable reader to infer a defamatory meaning.

The case of Pendleton v. Newsome involves the heartbreaking story of a seven-year-old child with a severe peanut allergy who ingested a peanut at school and died. According to the allegations in the complaint, the child’s mother, Laura Mary-Beth Pendleton (the plaintiff) had informed the school staff earlier in the school year about her daughter’s severe allergy to peanuts, that she provided the school with specific instructions, signed by the child’s pediatrician, about how to treat her daughter in the event of an emergency, and that she brought in an “EpiPen Jr.” for the school to keep on hand to inject Epinephrine if needed. She alleges she was told by the school’s clinic assistant that they already had all the equipment they needed and didn’t need the EpiPen.
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May 26, 2015

Defamation Claim Against Maritime Lawyer Goes Forward

by Lee E. Berlik

The case of AdvanFort Co. v. International Registries, Inc. involves a defamation claim brought by AdvanFort and its owners against their former attorney, maritime lawyer John Cartner, and The Maritime Executive, a maritime industry journal. According to the complaint, shortly after AdvanFort complained about getting billed over $28,000 for less than two weeks’ worth of legal services, Cartner wrote an article entitled “Self-Described AdvanFort ‘Billionaire’ May Not Be” in which he made numerous assertions allegedly calculated to lower AdvanFort in the estimation of the maritime community. Cartner responded that his article amounted to mere rhetorical hyperbole, which is not actionable, and that the article was not written with malice.

Defamation requires either a provably false factual assertion or a statement that can be reasonably interpreted as stating or implying actual facts about a person. Rhetorical hyperbole is protected under the First Amendment and cannot form the basis of a defamation claim. (See Milkovich v. Lorain Journal Co., 497 U.S. 1, 17, 21). The Fourth Circuit has described rhetorical hyperbole as a statement that “might appear to make an assertion, but a reasonable reader or listener would not construe that assertion seriously.” (See Schnare v. Ziessow, 104 Fed. App’x 847, 851 (4th Cir. 2004)).

In analyzing whether a particular statement will be actionable as defamation in Virginia, it’s usually helpful to review recent cases to see how actual judges have ruled. It’s often not entirely clear whether a statement is an assertion of fact, an expression of opinion, or rhetorical hyperbole. Here’s how Judge O’Grady ruled with respect to the various statements at issue in this article:
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May 14, 2015

Can Government Employees Be Sued for Defamation?

by Lee E. Berlik

As a general rule, both the United States and the Commonwealth of Virginia enjoy sovereign immunity, which shields the government entities and their agencies from defamation lawsuits as well as most other types of litigation. The law becomes trickier when applied to the employees of those governments. Federal employees are immune from defamation claims based on things they said while acting within the scope of their employment. Those who work for the Commonwealth of Virginia, on the other hand, or one of its counties, cities, or towns, don’t have it so easy. Virginia employees do enjoy some degree of sovereign immunity for their actions, but–with limited exceptions–the protection they are afforded is less than the absolute protection federal employees receive. Like federal employees, state and local employees must be acting within the scope of their employment to be potentially entitled to claim immunity, but state employees need to meet additional criteria before they will be granted immunity.

The Virginia Supreme Court has described sovereign immunity as “a rule of social policy, which protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities.” This rule of social policy is essentially based on the following goals: (1) to protect the “public purse” (i.e., to preserve tax dollars), (2) to address the concern that officials might be unwilling to carry out their public duties if they lived in constant fear of being sued, (3) to encourage citizens to take public jobs, and (4) to permit the orderly administration of government by discouraging improper influence through vexatious litigation. (See Messina v. Burden, 228 Va. 301, 308 (1984)). Consideration of these policies is what guided the Virginia courts to develop a rule affording immunity to some state and local employees but not others.
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April 27, 2015

D.C. Anti-SLAPP Statute Does Not Apply in Federal Court

by Lee E. Berlik

On September 27, 2013, the District of Columbia District Court applied D.C.’s anti-SLAPP act, D.C. Code § 16-5501 et seq., to a defamation lawsuit brought by wealthy businessman Yasser Abbas against the Foreign Policy Group and journalist Jonathan Schanzer. For those interested in the facts of the case, my earlier coverage of the case is here. On April 24, 2015, the Court of Appeals for the D.C. Circuit held that pretrial dismissal of claims brought in federal diversity cases is governed by Rules 12 and 56 of the Federal Rules of Civil Procedure, and that because the anti-SLAPP act purports to address the same question, it does not apply in federal court. Nevertheless, the court affirmed the district court’s dismissal of the case because the allegations were insufficient to state a claim for defamation under D.C. law.

The court summarized the workings of the anti-SLAPP statute as follows:

Under the Act as relevant here, a defendant may file a special motion to dismiss “any claim arising from an act in furtherance of the right of advocacy on issues of public interest.” D.C. Code § 16-5502(a). To obtain dismissal, the defendant first must make a “prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest.” Id. § 16-5502(b). If the defendant makes that prima facie showing, then the plaintiff must demonstrate that “the claim is likely to succeed on the merits.” Id. If the plaintiff makes that showing, the defendant’s special motion to dismiss must be denied. Otherwise, the special motion to dismiss must be granted. See id. (As we will see, that likelihood of success requirement is important to this case.) While a special motion to dismiss is pending, discovery is stayed except for limited purposes. Id. § 16-5502(c). A defendant who prevails on a special motion to dismiss may recover the costs of litigation, including reasonable attorney’s fees. Id. § 16-5504(a).

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:
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