The Virginia Defamation Law Blog
To be actionable in Virginia, statements alleged to be defamatory must satisfy the “of and concerning” test: the statement at issue must expressly or impliedly refer to the plaintiff, in a manner clear enough to communicate that reference to others who know the plaintiff and understand the context of the statement. A case crossed my desk this week involving an unusual fact pattern. At the time an allegedly defamatory statement was uttered, the speaker did not actually know of whom he was speaking; he was commenting on an anonymous report. He was essentially saying that whoever wrote the report was a liar. He didn’t know who wrote the report at the time he made those comments and clearly didn’t intend to direct his accusation against any particular individual. But the report’s author (the subject of his criticism) became known at a later date. It therefore became apparent to readers at that later time whom his statements were about. So would the court apply the “of and concerning” test retrospectively or dimiss the case due to the lack of a specific target at the time the statements were made? In the case of Blake v. Frederick County Fire and Rescue Dept., the court didn’t hestitate to conclude the of-and-concerning test had been satisfied, reasoning that “extrinsic facts may make it clear that a statement refers to a particular individual although the language used appears to defame nobody.”
The dispute began with Casey Blake, an administrative assistant at the Frederick County Fire and Rescue Department (FCFRD). In March 2022, her son Nick, then a recruit firefighter, experienced a serious medical emergency during a physically demanding training session. According to the complaint, instructors ignored his repeated warnings about physical distress, mocked him, and forced him to continue exercising until an ambulance was required. Blake reported the incident to Fire Chief Steven Majchrzak, but he quickly dismissed the concern as a misunderstanding. Over a year later, in July 2023, another recruit named Ian Strickler died under similar circumstances. Troubled by the department’s internal response and believing it was trying to avoid liability, Blake anonymously wrote a letter to Strickler’s family. The letter described the department’s past failures — including her son’s near-death incident — and urged the family to investigate and consult a lawyer. Blake mailed the letter anonymously, hoping it would reach the state safety investigator handling the case.
The investigator later confirmed he had received the letter, and Blake disclosed her authorship in a private meeting. Around the same time, Strickler’s mother read an excerpt from the letter at a meeting with County Administrator Michael Bollhoefer and Chief Majchrzak. Though the author’s identity was not disclosed, Majchrzak immediately guessed it was Blake and told Bollhoefer. About a month later, Bollhoefer issued a statement to The Winchester Star, describing the anonymous letter’s allegations as “false and defamatory” and devoid of a “factual basis.” He later repeated these sentiments publicly. At no point in these public statements did Bollhoefer name the author. It appears from the opinion that he likely suspected Blake as the author but he did not actually know she had written it.
Blake sued for defamation (and various other claims), essentially arguing that by accusing her of defamation, Bollhoefer had engaged in defamation himself, as nothing she said in her letter was false or lacking a factual basis. Even though he had not identified her by name, Bollhoefer’s statements eventually came to be 
understood by others as referring to her once they learned she had authored the letter.
This raises the question of whether a statement can satisfy the “of and concerning” test if the person described in the statement was not identifiable at the time the statement was made. There’s plenty of authority for the proposition that statements that do not facially refer to the plaintiff may nonetheless be “of and concerning” the plaintiff “if the allegations and supporting contemporaneous facts connect the libelous words to the plaintiff, if those who know or know of the plaintiff would believe that the [statement] was intended to refer to him, or if the statement contains a description or reference to him.” (See, e.g., Lokhova v. Halper, 441 F. Supp. 3d 238, 261 (E.D. Va. 2020)). Not many cases, however, involve a situation where the external facts connecting the statement to the plaintiff don’t become known until a later time.
Here, the court acknowledged that Blake was not named in the statements and that her authorship of the letter was not public knowledge at the time of publication. However, it held that these facts did not preclude her from bringing a defamation claim. The court may have been influenced by the fact that the statements, once made, were quickly followed by the internal identification of Blake as the author. Given that Majchrzak and Bollhoefer themselves informed staff that Blake had written the letter, and that the department thereafter treated her as the responsible party, it was reasonable for readers — particularly those within the FCFRD — to interpret Bollhoefer’s published comments as referring to her. This reasoning effectively applied the “of and concerning” test retroactively. It rested not on whether Blake was identifiable when the statements were made, but whether she later became identifiable in such a way that the audience came to associate the defamatory content with her.
It would be particularly interesting to know how the court would have ruled had Bollhoefer not even suspected Blake at the time he made his statement to the Winchester Star. Defamation liability traditionally requires that the reputational harm be caused by the statement itself, not by subsequent events that modify its meaning or change its target. The court’s ruling here suggests that a person may be held liable for defaming someone completely unknown to the speaker, and that liability might not arise until subsequent facts are revealed. Contrast this with the cases holding that statements truthful when made won’t become defamatory later if they become false as a result of subsequent events. Still, defamation is fundamentally about the effect a particular statement has on the listener. If a statement that once appeared anonymous becomes, in effect, traceable to a particular person, and that association causes reputational harm, then perhaps it does make sense to allow such claims to proceed.
The Blake decision rests on a flexible, context-sensitive application of the “of and concerning” requirement in defamation law. While doctrinally debatable, the court’s analysis exemplifies how modern courts may prioritize audience perception over contemporaneous identifiability, particularly at the pleading stage. The case underscores a tension between two competing visions of fairness in defamation law: one grounded in speaker intent and another focused on reputational harm as experienced by a reasonably informed audience.