The Virginia Defamation Law Blog
To establish defamation, a plaintiff in federal court must plausibly show the defendant (1) published (2) an actionable statement with (3) the requisite intent. An “actionable statement” is one that is (1) factual (as opposed to opinion); (2) false; (3) defamatory in nature; and (4) about the plaintiff. Certain potentially defamatory statements are protected from defamation actions by qualified privilege. Specifically, the privilege applies to communications between persons on a topic in which they share a common interest or duty. (See Larimore v. Blaylock, 259 Va. 568, 572 (2000)).
A plaintiff can overcome this privilege if he shows by clear and convincing evidence 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)).
Suppose you have been defamed by someone making a statement in a context that is clearly privileged. You believe you still have a case, because one of the above Cashion factors is present and, therefore, the privilege has been lost. Are you entitled to a jury trial, or might the judge rule on the case as a matter of law?
Under Virginia law, whether a qualified privilege has been lost or abused is generally a matter for the jury’s consideration. In Virginia state court, if the defendant claims his statements were protected by a qualified privilege, most judges would permit the case to proceed to trial to allow the jury to decide the scope of the privilege and whether the defendant’s conduct warrants removing the protections afforded by the privilege. In 
federal court, by contrast, surviving an early motion to dismiss or motion for summary judgment typically poses a greater challenge, as federal judges generally look for a higher threshold of proof before allowing cases to proceed to a jury. If the judge doesn’t see any evidence of malice at the summary-judgment stage, he is likely find that privilege protects the statements at issue and dismiss the case without allowing a jury to consider it.
A couple of weeks ago, a federal court in Richmond decided the case of Ellen Sailes v. Damon R. Richardson. Sailes worked as a part-time, “temporary instructional coach” for Richmond Public Schools. On June 2, 2015, Sailes assisted with SOL retake testing at Blackwell Elementary School. After the test, a student reported to her teacher that Sailes had provided answers to students. The school testing coordinator reported this information the Principal of the school, and the Principal passed this allegation along to Richardson, the division director of testing for RPS at the time.
Richardson coordinated an investigation into the allegation against Sailes, which involved interviewing students, the proctor, a teacher who visited the testing room, and Sailes. Sailes denied giving students inappropriate assistance, including answers to test questions. Richardson reported his investigation to the Virginia Department of Education (“VDOE”), as required when situations of potential testing compromises arise. His report was inconclusive, noting that he had received conflicting information. He recommended the students be re-tested and that Sailes not participate in SOL testing in the future “due to the level of concern” surrounding the incident.
On September 12, 2015, Richmond Times-Dispatch ran an article titled, 43 Area Students Retook SOLs Last School Year, which addressed this and other incidents. The paper reported that the investigation into the Blackwell testing yielded inconclusive results and that the reading coach involved would not administer future SOL tests.
Sailes sued Richardson for defamation and Richardson moved for summary judgment, arguing that his report to the VDOE was protected by qualified privilege. The court agreed, as he and VDOE clearly shared a common interest or duty in the contents of the report. VDOE regulations require Richardson to report alleged testing irregularities, in fact.
But what about the fact that qualified privilege can be lost if the report is made with malice, personal spite, or ill will? Sailes argued that Richardson’s failure to thoroughly investigate the testing allegations and to personally interview the students amounted to “malice” sufficient to overcome the privilege. “This kid of nit-picking,” the court responded, “will not do.” Noting a lack of any evidence of malice in making the reports to the VDOE, the court held that “a reasonable jury could not find malice in these facts” and that the statements at issue were therefore protected by qualified privilege. The court entered summary judgment in Richardson’s favor.