The Virginia Defamation Law Blog

May 28, 2012

First Amendment Right to Anonymous Internet Speech Challenged by Florida Doctor

The First Amendment protects the right to speak anonymously on the Internet, but that right is not absolute. Defamatory statements, in particular, are not protected. Freedom of speech does not include the right to commit libel or other torts anonymously. As demonstrated by a new case filed in Henrico County Circuit Court, however, not everyone agrees on the extent to which an online review can go before a poster’s identity must be revealed.

Armando Soto is a plastic surgeon in Orlando, Florida. A former patient, unhappy with the results of a breast augmentation procedure, posted negative comments about Dr. Soto on www.RateMDs.com. The comments included statements that scars were “horrific,” “frightening and unnecessary,” that breasts were “uneven,” that Dr. Soto charged for procedures that he did not perform, and that he is not skilled or caring.

The online comments were posted anonymously, so Dr. Soto filed a “John Doe” action and subpoenaed Internet provider Comcast for records revealing his critic’s identity. The anonymous reviewer hired a lawyer and moved to quash the subpoena to protect his identity. (Apparently the allegations are that “John” received breast augmentation surgery, which is why I’m referring to “his” identity).

May 17, 2012

Defamation Claims Asserted by Church Against Former Members

by Lee E. Berlik

Julie Anne Smith and her family attended Beaverton Grace Bible Church for over two years. When the church dismissed one of its employees for “subversive conduct,” the Smith family sought meetings with the Pastor and Elders to discuss the situation because they felt the termination was handled poorly. During the meetings, the Smiths and church officials discussed church policies and governance. Later, an elder informed Mrs. Smith that she must “recant” or her entire family would no longer be welcome at the church. The Smiths stopped attending the church.

Mrs. Smith later learned that Oregon authorities were investigating allegations of child molestation by a teenage member of the church whom she had seen in the child care area. The Pastor and Elders came unannounced to the Smith home demanding to know whether the Smiths knew who had reported the abuse. The Pastor informed the Smiths that they were “excommunicated.”

Mrs. Smith began posting comments about the church under Google’s “reviews” of the church. Congregants, former congregants, and the Pastor also posted comments, and the dialogue about church governance and doctrine continued. The Pastor removed many postings, so Mrs. Smith began her own blog, Beaverton Grace Bible Church Survivors, where she continued making and encouraging comments.

May 12, 2012

D.C.’s Anti-SLAPP Act to Be Tested in Maddow Defamation Case

by Lee E. Berlik

Christian minister and hard-rocker Bradlee Dean and his non-profit foundation, You Can Run But You Cannot Hide International (YCR), brought a defamation suit against liberal talk show host and commentator Rachel Maddow for comments Maddow made on The Rachel Maddow Show. Maddow is hitting back hard, filing a motion to dismiss under the District of Columbia’s relatively new anti-SLAPP Act. If Maddow’s motion is successful, Dean’s defamation case will not only be dismissed with prejudice, but Maddow will be entitled to recovery of her attorneys’ fees.

The complaint alleges that Maddow disparaged Dean’s physical appearance, first name, profession, and standing in the community and represented that he and YCR advocate the execution of homosexuals. In her commentary (excerpted below), Maddow mentioned that Dean denied having called for the execution of homosexuals, but Dean and YCR contend that Maddow did so begrudgingly and in a way that suggested their denial was disingenuous.

Dean charges Maddow with referring to him as a “bloodthirsty” individual calling for the “upping of the bloodshed in America’s culture wars,” and accusing him of advocating the use of foreign enemies against America because Christians “aren’t doing the job by killing gays and lesbians.” According to the plaintiffs, Maddow’s comments proliferated in the media and led to Dean receiving Internet death threats from gay activists. The plaintiffs contend that Maddow made these comments as a liberal member of the media and lesbian activist in order to harm the presidential campaign of Congresswoman Michelle Bachman to whom Maddow linked Mr. Dean and YCR on several occasions.

May 6, 2012

Facebook “Likes” Not Protected Speech, Says Virginia Court

by Lee E. Berlik

Think twice before clicking that Facebook “like” button. You may think you’re expressing a constitutionally protected right to express support for a political candidate, for which you cannot be terminated, but Judge Raymond A. Jackson of the Eastern District of Virginia recently ruled that merely “liking” a candidate on Facebook is not sufficiently substantive to warrant First Amendment protection. Expect this ruling to get appealed.

Sherriff B.J. Roberts of the Hampton Sherriff’s office was up for re-election when he learned that several of his employees were actively supporting one of his opponents, Jim Adams. The employees alleged that Sherriff Roberts learned of their support of Adams because they “liked” Adams’ Facebook page. They also attended a cookout with Adams and told others of their support, but there was no evidence that the Sherriff was aware of these activities. One employee sported a pro-Adams bumper sticker on his car and used choice words to describe the Sherriff’s campaign literature in speaking with a colleague at the election booth.

After winning re-election, Sherriff Roberts did not retain the employees. Sherriff Roberts claimed various benign reasons for the firings, including a reduction in force and unsatisfactory work performance. The employees sued Sherriff Roberts alleging that the firings were in retaliation for exercising their right to free speech and that the Sherriff had violated their right to free political association. Sherriff Roberts argued that plaintiffs had not alleged protected speech or political association and that he was entitled to qualified and sovereign immunity even if plaintiffs’ speech was protected.

May 2, 2012

Public Figure Fails to Present Plausible Defamation Case

by Lee E. Berlik

When a public figure alleges defamation, he must demonstrate by clear and convincing evidence that the speaker made the defamatory statement with actual malice. Judge Henry E. Hudson of the Eastern District of Virginia confirmed this heightened standard when he dismissed the complaint brought by Wayne Besen, the Executive Director of Truth Wins Out (“TWO”), a non-profit organization that addresses anti-gay behavior.

Besen filed a claim for defamation per se against the non-profit organization Parents and Friends of Ex-Gays, Inc. (“PFOX”) and Gregory Quinlan, the President and CEO of the organization, after Quinlan made comments about Besen on local television and the organization’s blog. Specifically, Quinlan asserted that Besen once stated that someone should run Quinlan over with a bus or inject him with AIDS. On the PFOX blog, Quinlan also suggested that Besen had been fired from the Human Rights Campaign. Quinlan refused to retract either statement, even after Besen approached him about the comments.

Under Virginia law, defamation per se can be found where there are “words that impute to a person the commission of a crime of moral turpitude or which prejudice a person in his profession or trade.” If the plaintiff is a public figure, he must prove that the defendant published a false and defamatory statement with actual malice, meaning that it was made with knowledge of its falsity or with reckless disregard for the truth. Plaintiffs can be public figures for all purposes and in all contexts, or may be “limited public figures” with respect only to a limited range of issues.

April 27, 2012

Defamed Lawyer and Wife Win $13.7 Million Against “Anonymous” Posters

by Lee E. Berlik

The First Amendment does not protect the “right” to post anonymous comments online that defame the reputations of others. Libelous statements posted in Internet forums can come back to bite those who post them. In most cases, posters will not be able to conceal their identities once the gears of litigation start grinding. A jury in Texas recently awarded $13.78 million to a couple who were targeted by online posters — one of the highest verdicts ever recorded in Texas for an Internet defamation case.

In 2008, Shannon Coyel sought to divorce her husband and gain custody of her two children. She accused her husband of being a sexual pervert and claimed he had abused their daughter. Mark Lesher, an attorney, and his wife tried to help her with her divorce. The Coyels reconciled, however, and Mrs. Coyel then accused the Leshers and their ranch hand of sexual assault. Moreover, she claimed she had only reported an incident of abuse by her husband against her daughter because the Leshers had drugged her with pills.

The Leshers were indicted as a result of Mrs. Coyel’s sexual assault accusation. They also came under attack on Topix.com with some 25,000 comments, many anonymous, posted about them. They were called molesters, murderers, sexual deviants and drug dealers, and were accused of encouraging pedophilia. The Leshers said the attacks were so vicious, they had to move out of their town and Mrs. Lesher lost her business, a day spa. Mr. Lesher lost substantial business as well.

April 23, 2012

Defamation Plaintiffs Must Plead Exact Words and Non-Privileged Publication

by Lee E. Berlik

The elements of a defamation claim in Virginia are (1) publication, (2) of an actionable statement and (3) the requisite level of intent. A statement regarding a person’s professionalism may constitute defamation per se (meaning the plaintiff need not prove actual damage to reputation) if it implies that the person is unfit to perform the duties of his job, lacks integrity in performing those duties, or if it would tend to “prejudice” the plaintiff in his profession. Fairfax Judge Robert J. Smith, in a detailed opinion, recently made clear that to survive demurrer, a plaintiff must also state the exact words alleged to be defamatory, and must show that the defamation occurred in a non-privileged setting.

In Tomlin v. IBM, three former IBM employees brought defamation claims against IBM and five individuals. IBM received an anonymous letter alleging that Ms. Tomlin acted unethically by hiring her brother, Mr. Tomlin. After an investigation, IBM terminated the employees. Plaintiffs claimed that IBM and the individual defendants made the following false and defamatory statements to IBM colleagues: that Ms. Tomlin acted unethically in hiring her brother and that she and Mr. Tomlin and plaintiff Williams conspired to cover up the unethical hiring; that Mr. Tomlin falsely claimed to have certain skills in his job application and did not meet the minimum qualifications for his consulting position; and that Mr. Williams submitted a fraudulent hiring form regarding Mr. Tomlin. Plaintiffs alleged that defendant Ms. Minton-Package told IBM employees that Ms. Tomlin was fired because she had hired her brother and tried to “cover it up.”

Although a plaintiff does not need to plead specifics such as the identity of the speaker and other details surrounding purportedly defamatory statements, the complaint must contain the exact words spoken or written. Tomlin’s complaint, however, merely alleged the general nature of the defamatory statements; only the statements imputed to Ms. Minton-Package contained exact words. The court found that the plaintiffs failed to plead the defamatory statements with sufficient particularity except as to Ms. Minton-Package, and it proceeded to examine publication only as to her.

April 16, 2012

Middleburg Writer Dee Dee Hubbard Turns Tables On Accusers with Defamation Suit

by Lee E. Berlik

Shortly after being found “not guilty” of embezzlement by a Loudoun County jury, Deanne “Dee Dee” Hubbard, editor of the Middleburg Eccentric, has filed a defamation action against her chief antagonists, Jack J. Goehring, III, and his wife, Mary Kirk Goehring, in Loudoun County Circuit Court.

For over a decade, Deanne “Dee Dee” Hubbard managed Middleburg, Virginia properties co-owned by Jack Goehring and his wife. She also lived in one of their rental properties with her son and daughter-in-law and she and her daughter rented space in one of the Goehrings’ commercial buildings. Ms. Hubbard was responsible for collecting rents from the Goehring properties. When Mr. Goehring discovered several rent checks had found their way into accounts Ms. Hubbard controlled, rather than into his accounts, he urged the Commonwealth Attorney’s office to prosecute Hubbard. Ms. Hubbard claimed she’d mistakenly marked the checks for the wrong accounts and set the accounts right as soon as the error was discovered.

Ms. Hubbard was prosecuted on fourteen felony embezzlement charges but was acquitted of all charges. Now, she and several family members have sued Goehring and his wife for waging “a campaign of malicious prosecution, libel, slander, and defamation.” The complaint paints Mr. Goehring as a vindictive man intent upon securing the charges against Ms. Hubbard and ratcheting up the surrounding publicity so as to defame and humiliate her. It accuses Goehring of filing an affidavit with the Middleburg Bank accusing Hubbard and her family members of identity theft, using his personal identifying information to obtain money, goods, services and other benefits without his authorization. The plaintiffs claim Goehring made false statements to law enforcement authorities that led to Hubbard’s arrest, arranged to have a friend photograph Hubbard being taken into custody in handcuffs, and then helped the photographer find a buyer for the photos. Ultimately, the photos appeared on television, in the local paper and on the Internet.

April 14, 2012

Slander of Pilot by Airline Results in $1.4 Million in Damages

by Lee E. Berlik

Workplace defamation suits can result in high damages awards. A former pilot and federal flight deck officer (FFDO), William Hoeper, successfully sued his former employer, Air Wisconsin, for defamation after one of its managers, Patrick Doyle, reported Hoeper to the Transportation Security Administration (TSA) as a potential threat to airline security. Last month, the Supreme Court of Colorado, applying Virginia law, upheld a $1.4 million jury verdict against Air Wisconsin.

Hoeper had been taking a test to fly a new plane. According to test administrators, Hoeper ended the test abruptly, raised his voice at the administrator, and used profanity. Afterwards, while Hoeper was waiting for his flight home, Doyle called TSA to report that Hoeper may be carrying his government-issued FFDO firearm and that he was concerned about Hoeper’s mental stability because Hoeper had been terminated that day.

When a plaintiff alleges defamation involving a “matter of public concern,” the defendant is entitled to First Amendment free speech protection unless the plaintiff can demonstrate that the statement was false and made with actual malice. Actual malice is present if the statement was made by the defendant with (1) knowledge of the statement’s falsity or (2) reckless disregard as to the statement’s falsity. However, even before the plaintiff presents his case, an airline defendant may be able to avoid liability altogether under the Aviation and Transportation Security Act (ATSA), which provides immunity from civil suits to “an air carrier who voluntarily discloses any suspicious transaction relevant to certain aircraft security statutes.” If the disclosures are made with actual knowledge or reckless disregard as to the statement’s falsity, however, ATSA immunity is lost and the plaintiff can proceed to demonstrating that a statement was defamatory.

April 7, 2012

Defamation Case Against Barbara Walters Dismissed

by Lee E. Berlik

A federal court in Massachusetts has dismissed a defamation case against Barbara Walters brought by a woman claiming to be the former lesbian lover of Walters’ daughter. In Walters autobiography, Audition: A Memoir, she refers to the woman, Nancy Shay, by first name only in a two-sentence statement. Walters wrote that “Nancy” was kicked out of high school for “bad behavior” after being “found in a nearby town high on God-knows-what” with Walters’ daughter. Shay did not deny being suspended from school but claimed the statements were defamatory because they falsely portrayed her as a user of illicit drugs. The court found the allegations were insufficient to state a claim for defamation and dismissed the case.

In Massachusetts, as in Virginia and every other state, there can be no defamation liability without “fault” on behalf of the defendant. For private plaintiffs (as opposed to public figures), this requires (at a minimum) an allegation that the defendant acted negligently with respect to determining the truth. Moreover, a statement is incapable of defamatory meaning unless it would tend to hold the plaintiff up to scorn, hatred, ridicule or contempt “in the minds of any considerable and respectable segment in the community.” In other words, a statement will not be considered defamatory if only a very small group of persons would view it as derogatory.

In her brief, Shay argued that Walters was at fault for making a false statement as to the reason for her suspension and that the statement damaged her reputation amongst the former faculty and students of the high school from which she was suspended. Alternatively, Shay suggested that, even if the statement that she was expelled for “bad behavior” was true, the allusion to drug use was made maliciously.