of and concerning Tag Archives — The Virginia Defamation Law Blog

March 28, 2025

Retrospective Application of the “Of and Concerning” Test

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.

November 9, 2019

The Small-Group Exception to the “Of and Concerning” Test

by Lee E. Berlik

To be actionable in Virginia, defamatory statements must be about the person who is filing the lawsuit. A plaintiff can’t successfully bring a defamation action based on a false statement that doesn’t expressly or impliedly refer to him or her, and in a manner clear enough to communicate that reference to others. This is the “of and concerning” element that every action for libel or slander requires. When the false statement at issue concerns a group of people rather than an individual, a question arises as to whether the group’s members have been defamed. The general rule is that statements that broadly malign an organization as a whole do not necessarily defame the organization’s individual members. However, when the organization is small enough, the small-group theory postulates that a defamatory statement about the small group could be reasonably expected to harm the reputations of every individual member, whether or not they are identified in the statement, and that such statements should be treated as “of and concerning” each individual group member.

If a statement’s “language…is directed towards a comparatively small or restricted group of persons, then any member thereof may sue.” (See Ewell v. Boutwell, 138 Va. 402, 410 (1924)). How small does the group have to be to qualify for the small-group exception to the of-and-concerning requirement? That’s anyone’s guess. Courts around the country typically apply the doctrine to groups of up to around 25-50 members, but each case is going to be different. Courts will look to factors such as the size of the group, whether the statement attacks the group as a whole or some subset thereof, and whether the group is prominent in the community in which the statement was published. The key issue is whether a reasonable person hearing the defamatory statement about the group would likely interpret it as referring to all its individual members.

April 23, 2017

Felon’s Defamation-By-Implication Claim Proceeds to Trial

by Lee E. Berlik

As I have discussed on this blog before on several occasions, a literally true statement can give rise to a defamation claim if a reasonable listener would infer a defamatory message from the words (and images) used, even if the words themselves do not convey that defamatory meaning directly. If innuendo would cause a reasonable listener to “read between the lines” and infer that the speaker is communicating a defamatory statement about another individual despite the use of words that are not themselves false or defamatory, that can be sufficient to state a viable claim. This is the concept of “defamation by implication.” Earlier this month, in a case brought by a convicted felon, Judge Gibney of the Eastern District of Virginia permitted such a case to proceed to trial.

The case arose out of this CBS 6 broadcast in the Richmond area. Watch it carefully. Did you see or hear anything that would likely cause damage to someone’s reputation? Well, someone named Angela Engle Horne thought so, and so she sued the station for defamation, claiming that her reputation had been damaged by the story. Here’s what happened, according to papers filed in the case:

September 30, 2013

The “Of and Concerning” Element of Defamatory Meaning

by Lee E. Berlik

Last year I commented on Gilman v. Spitzer, a defamation case out of the Southern District of New York, in which the court dismissed the plaintiff’s defamation claim on the ground that the statements at issue could not be reasonably interpreted as being “of and concerning” the plaintiff. On September 18, 2013, the Second Circuit affirmed that decision, holding that the statement at issue did not pass the “of and concerning” test.

Defamatory words are not actionable unless they refer to someone, and do so clearly enough that those who hear or read the statement will understand the reference. This has come to be known as the “of and concerning” test. If the words are not “of and concerning” the plaintiff, then the plaintiff has no cause of action. Courts have the authority to decide as a threshold matter whether an alleged statement can be reasonably understood as referring to the plaintiff, and to dismiss the case at the outset if the statement cannot be so interpreted.

To recap, William Gilman, an employee of Marsh & McLennan Companies, Inc. sued Eliot Spitzer, former New York State Attorney General, for defamation stemming from an article that Spitzer wrote in response to a Wall Street Journal editorial questioning his prosecution of the insurance industry. Spitzer’s article criticized the editorial for noting that two cases against Marsh employees had been dismissed after the defendants were convicted, yet failing to acknowledge “the many employees of Marsh who have been convicted and sentenced to jail terms.” Gilman’s case was one of the two that had been dismissed. The article also accused “Marsh and its employees” of pocketing increased fees and kickbacks. Gilman was not mentioned by name in the article. The district court found that no reasonable reader of the entire passage would come away thinking that the article referred to Gilman, so it dismissed the claim.