The Virginia Defamation Law Blog

January 10, 2024

Context Helps Separate Fact From Opinion

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.

Continue reading

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.

April 7, 2023

The Big Issue in Dominion v. Fox Has Already Been Decided

by Lee E. Berlik

The jury trial in the libel and slander case of Dominion Voting Systems v. Fox News Network is now less than two weeks away. The consensus among defamation law experts seems to be that the “big issue” in this case is whether Fox acted with “actual malice,” a requirement established by the seminal First Amendment case of New York Times v. Sullivan back in 1964. Public figures can’t win defamation suits unless they can prove the defendant made a false statement about them with actual malice, generally defined as knowledge of falsity or, at a minimum, “reckless disregard” for the truth, which is the equivalent of a high degree of awareness that the statement at issue is probably false. In most cases, that’s a very difficult thing to prove, and many defamation cases fail due to an inability of the plaintiff to prove actual malice. Dominion’s case against Fox, however, is anything but ordinary. From my perspective, the only real chance Fox had of winning this case at the trial level was not to convince the jury that it failed to act with actual malice (an unlikely prospect) but rather to convince the jury that it was merely broadcasting newsworthy allegations made by others and that it was not necessarily endorsing those allegations. In a recent pretrial ruling, however, the court found that a reasonable jury could only conclude that Fox did, in fact, endorse the conspiracy theories and adopt the accusations against Dominion as its own. The jury won’t be allowed to even consider the issue. That means this case is essentially done. Dominion wins. The only question is how high the judgment amount will be.

Prior to the court’s recent ruling on Dominion’s motion for summary judgment, Fox had a glimmer of hope. After all, Dominion is the party with the burden of proof, not Fox. It is Dominion that needs to prove that the statements made about Dominion on Fox’s broadcasts were false and that Fox is responsible for making them, even if the statements were made only by guests on Fox programming. Even with all the media coverage about those behind-the-scenes text messages by Fox hosts in which they reveal their true feelings about the outlandish and unsupported accusations against Dominion being made by the likes of Sidney Powell and Mike Lindell, at least they could argue to the jury that when a member of the President’s legal team makes a public accusation that a manufacturer of voting machines was complicit in a giant scheme to flip votes and steal an election, that is a newsworthy event that Fox should cover, regardless of whether the accusation is true or false; the accusation itself is news. Sadly for Fox, that ship has sailed. The court has already entered partial summary judgment establishing not only that the statements about Dominion made by Fox guests were false, but that Fox is responsible for republishing those statements as if they were Fox’s own accusations against Dominion.

February 16, 2023

False Accusations of Violating HOA Covenants: Not Defamatory

by Lee E. Berlik

If you’ve been falsely accused of violating a law or breaking a rule, whether that false accusation can be deemed defamatory will depend on which rule you are alleged to have broken. Did someone say that they saw you jaywalk across a busy intersection? That may be false, but let’s be honest: who cares? Your reputation is not likely to suffer if some people harbor a false notion that you once crossed the street without using an available crosswalk. On the other hand, if that person falsely accuses you of stealing a car, that could actually cause the people who hear the accusation to think about you a little differently. They might not want to associate with you or transact business with you. A false accusation of committing a serious crime is said to carry “defamatory sting“–it hurts. A similarly false accusation about breaking a trivial rule may not carry such sting. When defamatory sting is lacking, the statement is not actionable as defamation.

The Virginia Court of Appeals published an opinion this week involving an HOA President, Theodore Theologis, who had filed a defamation claim against several of his neighbors in a Winchester townhome community. They had written a letter to the community criticizing his performance as President and supporting a petition seeking to remove him from the Board. One of the defendants had posted something to social media suggesting that the President had himself broken some of the HOA bylaws. He sued them all for defamation but the case was dismissed on various grounds raised by the defendants on separately filed demurrers. Theologis appealed to the Court of Appeals, which affirmed the dismissal of the case with prejudice.

January 30, 2023

Qualified Privilege Insufficient Basis for Pretrial Dismissal

by Lee E. Berlik

It’s never a good idea to slander another person, but in some circumstances a privilege may apply to a defamatory statement that exempts the statement from any libel or slander claims. Statements made on the witness stand in a legal proceeding, for example, are immune from defamation claims (even if they are false). The justice system is designed to sort out which witnesses are lying and which are telling the truth; it doesn’t permit an aggrieved individual to sue witnesses who offered unfavorable testimony during the trial. In other contexts, a “qualified” privilege may apply to the communication. In these situations, the privilege is not absolute and will be forfeited if abused. A qualified privilege generally attaches to communications between persons on a subject in which the persons share an interest or duty. For example, consider the employee performance review, where the person completing the review form and the person receiving it both share an interest or duty in the review being conducted. In situations like these, the reviewer is generally permitted–and expected–to include whatever negative feedback may be appropriate without having to worry about getting sued by the employee for defamation. However, this privilege is not absolute; a qualified privilege does not give the reviewer a license to maliciously defame another individual with impunity.

Defamatory words uttered with malice will not be protected by qualified privilege. This means that a plaintiff may often be able to pursue a defamation claim even when the claim is based on a statement made in a privileged context. A plaintiff can overcome the qualified privilege with clear and convincing evidence that the defendant made the statement with “malice” (not to be confused with “actual malice.”) Malice in this context can be shown in a variety of ways, such as a showing that (1) the statements were made with knowledge that they were false or with reckless disregard for their truth; (2) the statements were communicated to third parties who have no duty or interest in the subject matter; (3) the statements were motivated by personal spite or ill will; (4) the statements included strong or violent language disproportionate to the occasion; or (5) the statements were not made in good faith. (See Cashion v. Smith, 286 Va. 327, 339 (2013)).