The Virginia Defamation Law Blog

March 4, 2024

Falsely Accused of Being “Under Investigation”

Competing for customers by telling them a competitor is “under investigation” is surprisingly common. I hear this from prospective clients all the time. Most of the time, the accusation isn’t any more specific than that the client is under investigation for something. No one really knows what exactly, but the implication is that if some authority is investigating the client for something–anything–then the client is probably guilty of doing something improper and should be shunned by customers. I suppose one reason this appears to be a fairly common phenomenon is that many think that if they keep the accusation vague enough, and assert only that a competitor is being investigated and hasn’t (yet) been formally found guilty of any specific conduct, then the statements can’t be defamatory. Most courts would disagree with this logic.

A couple of federal cases brought by Grover Gaming, Inc., provide an example of the majority view. Grover is a provider of electronic pull tabs for charitable gaming, a market regulated by the Virginia Department of Agriculture and Consumer Services’ Office of Charitable and Regulatory Programs. Grover is licensed to manufacture and supply these games. In Grover Gaming v. William J. Rice, Grover alleged that Rice (an employee of Powerhouse Gaming, Inc., a competitor of Grover) had been going around claiming that Grover and its employee, Trish Riley, were under “serious state investigation,” which Grover asserted was false. In a parallel case, Grover Gaming v. Rodger Huffman, Grover sued another Powerhouse Gaming employee for essentially saying the same thing, albeit to different customers. “They are under a very serious State Investigation in Virginia!!!!!” Huffman allegedly said. “Be careful dealing with Trish Riley!!! She’s fully involved!!!” Continue reading

February 14, 2024

Meaning of the Phrase “That Would be Protected Under the First Amendment” in Virginia’s Anti-SLAPP Statute

by Guest Blogger

Virginia Code § 8.01-223.2, informally known as the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, provides immunity in tort for statements on matters of public concern (subject to certain exceptions not relevant here). I recently had an issue arise in a case that prompted the question of what “that would be protected under the First Amendment” really means in the context of how that phrase is used in the statute, which states in pertinent part as follows:

A person shall be immune from tort liability if the tort claim is based solely on statements (i) regarding matters of public concern that would be protected under the First Amendment to the Constitution of the United States made by that person that are communicated to a third party….

January 19, 2024

Allegations of Malice Must Be Plausible

by Lee E. Berlik

When public figures bring defamation lawsuits, First Amendment concerns dictate that they must demonstrate “actual malice” as a prerequisite to recovery (See New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964)). This is generally defined as either actual knowledge of falsity or, at a minimum, reckless disregard for the truth. Falsity alone is insufficient to support a defamation claim brought by a public figure; if the defendant had no reason to know that his or her statements about the public figure were false, the defendant will not be liable for defamation. Knowing this, public figures represented by competent counsel are always careful to ensure they allege in their pleadings that the defendant acted with actual malice. More and more, however, Virginia state courts are saying that conclusory allegations of this sort are not enough. To survive a demurrer, the plaintiff must plead facts that, if true, would create a plausible inference of actual malice.

A few days ago, the Court of Appeals of Virginia made this point clear in the case of Tonya D. Chapman v. Jonathan Burkett. Ms. Chapman, a public figure due to her position as Chair of the Virginia Parole Board, filed this complaint against Mr. Burkett and others, alleging they defamed her with a news story that reported on the differences between a 13-page initial draft of an Inspector General report and a heavily redacted 6-page final report. Essentially, Chapman was upset because the story seemed to suggest that the report was heavily edited for political reasons as opposed to a determination that the initial conclusions were false and unfounded. She claimed the article implied that she violated the law and that the reporter acted with actual malice in that he knew this implication was false.

January 10, 2024

Context Helps Separate Fact From Opinion

by Lee E. Berlik

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.

December 14, 2023

Are False Imputations of Homosexuality Actionable?

by Lee E. Berlik

To be actionable as defamation in Virginia, the words used must be more harmful to a person’s reputation than a common insult or an accusation that most people would consider harmless or unimportant in evaluating a person’s character. Defamatory words are those which “tend 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 Bryant-Shannon v. Hampton Roads Cmty. Action Program, Inc., 299 Va. 579, 585 (2021)). But who, exactly, is this “community”? Who are these third persons in whose eyes defamatory meaning is to be measured? These questions become important when there is a lack of consensus among the general public about whether certain personal characteristics reflect poorly on a person’s character or whether they carry any negative connotations at all. Consider an accusation that another person is gay or transgender. If these statements are false, has the person’s reputation been lowered in the estimation of the community? Clearly, the answer depends on whom you ask. As to how the courts are dealing with this issue, a consensus has yet to emerge.

On the one hand, some courts have held that an allegation of homosexuality is defamatory per se because it implies immoral or criminal conduct. Other courts have pointed out that the Supreme Court invalidated sodomy laws with its decision in Lawrence v. Texas and that gay marriage is permitted in all 50 states, concluding that false accusations of homosexuality cannot be considered defamatory. Other courts have expressed concern that to find “gay” defamatory might be interpreted by the public as a validation of anti-gay sentiment. This is what a federal judge in New York had to say after ruling that false imputations of homosexuality are indeed actionable as defamation per se:

Continue reading

September 2, 2023

Courts Won’t Resolve Scientific Controversies

by Lee E. Berlik

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

June 26, 2023

The 2023 Amendments to Virginia’s Anti-SLAPP Statute

by Lee E. Berlik

Section 8.01-223.2 of the Virginia Code, unofficially recognized as Virginia’s anti-SLAPP statute, is designed to deter frivolous “SLAPP” lawsuits brought for the improper purpose of harassing individuals who exercise their protected right to freedom of speech. The statute immunizes against defamation liability most statements made in good faith on matters of public concern (i.e., statements relating to any matter of political, social, or other legitimate concern to the community). A defendant who successfully invokes the anti-SLAPP statute may be entitled to recover attorneys’ fees from the plaintiff. The statute’s key protections went into effect in 2017. New laws are always a work in progress and this one is no exception. Presented below are the five latest revisions to Virginia’s anti-SLAPP law. The new law goes into effect July 1, 2023.

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June 19, 2023

Accusations of Giving Preferential Treatment to Favored Vendors

by Lee E. Berlik

When does ordinary workplace criticism become actionable defamation? While there’s no hard and fast rule, the answer usually lies in the extent to which the criticism involves provably false factual assertions. Expressions of pure opinion are not actionable, so a performance review that merely contains negative assessments of an employee’s performance won’t support a libel suit absent the inclusion of express or implied falsehoods. An accusation that an employee is slow to pay vendors? Not defamatory, because “slow” is relative and means different things to different people. An accusation that the employee is difficult to deal with? Also not defamatory, because calling someone “difficult” doesn’t convey any actual facts about the employee susceptible of being proven false. (How do you define “difficult”?) What about an accusation that the employee played favorites with vendors and paid preferred vendors before paying disfavored vendors? According to a federal judge sitting in Harrisonburg, Virginia, that statement crosses the line into defamatory territory as it can be proven false at trial.

The case of Christine A. Thompson v. Rockingham County presents the following facts. Christine Thompson worked in the Children’s Services Act (CSA) office for Harrisonburg and Rockingham County from 2005 to February 2020. Initially serving as the CSA coordinator and later promoted to CSA manager, her responsibilities included overseeing daily operations, facilitating invoice payments, and supervising employees. Thompson did not have the authority to approve payments to vendors, but she oversaw the generation of purchase orders for approved services and the submission of invoices by vendors. Once submitted, invoices were reviewed and signed by the Department of Social Services before being returned to the CSA office for payment processing. Payments were expected to be issued within 45 days of invoice submission, and adherence to procedural requirements was crucial for vendors to receive payment.

May 26, 2023

Fees Awarded Under Virginia’s Anti-SLAPP Statute By Federal Court

by Lee E. Berlik

Virginia’s anti-SLAPP statute has received a lot of flak for supposedly not being strong enough to deter frivolous defamation actions designed to chill the exercise of First Amendment rights. A case decided last week down in Roanoke, however, demonstrates that just because fee awards are discretionary does not mean that fees won’t be awarded in appropriate circumstances. When a local family sued Black Lives Matter Franklin County and its Director, Bridgette Craighead, for statements she made about race relations in an ABC News segment, the court found the statements had nothing to do with the plaintiffs, were not defamatory, and were protected by the First Amendment. Because the case was utterly frivolous, the court awarded attorneys’ fees under the anti-SLAPP statute.

In the case of Crystal Minnix v. Sinclair Television Group, the segment at issue was titled “Cops’ role in Jan. 6 attack divides Virginia town with ties to Confederacy.” The focus of the story was on the Rocky Mount community’s reaction to the news that two of its law enforcement officers were apparently at the Capitol on January 6, 2021. For a duration of roughly four seconds during the video segment, the story included footage of a red, white and blue house owned by the plaintiffs while a voiceover states, “Rocky Mount is predominantly white and politically conservative.” Immediately preceding the display of the plaintiffs’ house, a reporter is shown interviewing Ms. Craighead in which Craighead says, “It’s their land and their country and we just live in it.”

The plaintiffs did not appreciate their house being included in the story, so they sued Craighead, Black Lives Matter Franklin County, the reporters, and the news organizations running the story, for $67,000,000 and other remedies. According to them, Ms. Craighead’s statements, taken in the context of the news story as a whole, implied the following about them:

May 9, 2023

Sanctions Mandatory if Defamatory Sting Obviously Lacking

by Lee E. Berlik

When a party or an attorney files an objectively baseless defamation complaint, the trial court is required to impose sanctions on one or both of them, including but not limited to an award of attorneys’ fees. This is the main takeaway from Nestler v. Scarabelli decided a few days ago by the Virginia Court of Appeals. Litigation attorneys in both state and federal court are required to adhere not only to codes of ethics but also to procedural rules that prohibit using litigation for an improper purpose. Under Virginia Code § 8.01-271.1, any time a lawyer signs and files a complaint on behalf of a client, the lawyer is certifying that “to the best of his knowledge, information and belief, formed after reasonable inquiry, [the complaint] is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and…is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” The court found that Dr. Scarabelli violated that rule by filing a defamation claim against Dr. Nestler that had no reasonable chance of success. Consequently, the trial court was not only permitted but required to impose an appropriate punishment.

MCV Associated Physicians (“MCVAP”) hired Dr. Tiziano M. Scarabelli as the Virginia Commonwealth University Health Systems’ Director of Cardio-Oncology on a one-year contract. After only a few months, MCVAP had received several complaints from staff members about Dr. Scarabelli’s alleged lack of professionalism. MCVAP also received complaints about Dr. Scarabelli from interns, residents, and patients, some of which appeared to constitute allegations of sexual harassment, such as claims that Dr. Scarabelli was “very touchy feely,” would put his hands on women’s thighs, and would often comment on the physical attractiveness of women. There were also claims he was just rude, “always putting down other physicians.” After a year, MCVAP decided not to renew Dr. Scarabelli’s contract.