The Virginia Defamation Law Blog
Even without winking and nudging, defamatory statements can be communicated by innuendo just as clearly as they can by express statements. If you’re going to publish a “hit piece” about another person designed to damage that person’s reputation, you can’t escape defamation liability simply by being careful not to state directly what you are unambiguously expressing indirectly. Libel through innuendo does not enjoy any greater protection under the First Amendment than blatant libel. Defamation may be implied when an author intends for his audience to “read between the lines” while being careful not to make an express statement that is literally false.
I’ve written about defamation by implication before, but one case I haven’t yet covered is Steven D. Parker v. Lancaster County School Board, pending in the Richmond Division of the Eastern District of Virginia. The basic facts, according to the November 4th opinion, are essentially as follows. Dr. Parker is the former Superintendent of Lancaster County Public Schools. He claims he received consistently excellent performance reviews during his tenure. Towards the end of his contract, the School Board Chair instructed Dr. Parker to hire more African-American administrators, even if they were less qualified than white applicants. Dr. Parker pushed back against this idea as he considered it an ill-advised “race-based hiring quota.” The School Board ultimately decided not to renew Dr. Parker’s contract, for reasons Dr. Parker alleges have to do with his refusal to provide preferential treatment to unqualified African-American job applicants and his participation in a racial-harassment investigation into one of the Board members.
After the vote not to renew Dr. Parker’s contract, at least two of the Board members spoke to the press. One said that the decision not to renew Dr. Parker’s contract “was based in part on a downward trend in his evaluations.” Another added, “I know a lot of people have seen one evaluation of the superintendent but there have been ongoing evaluations through the school year that no one has seen.” Dr. Parker sued for defamation and other claims, contending that these statements were designed to cover-up the truth and convey the false impression that Dr. Parker was fired for poor performance.
The court found that these allegations were sufficient to state a defamation claim. “Defendants can be held liable for defamation when a negative characterization of a person is coupled with a clear but false implication that the speaker is privy to facts about the person that are unknown to the general listener,” the court wrote. “The test for determining whether facts that may be actionable defamation have been implied is whether a reasonable listener would take the speaker to be basing his or her ‘opinion’ on knowledge of facts of the sort than can be evaluated in a defamation suit.”
In this case, when the Chair of the school board told the reporter, “I know a lot of people have seen one evaluation of the superintendent but there have been ongoing evaluations through the school year that no one has seen,” the clear implication was that (a) other evaluations of Dr. Parker existed, (b) those other evaluations were negative, and (c) Dr. Parker was terminated as a result of those negative performance evaluations. This innuendo, according to Dr. Parker, was completely false. This was enough to survive a motion to dismiss. As reasoned by the court:
Because Chair Thomasson contrasts these “ongoing evaluations” to Dr. Parker’s previous positive evaluation, she inherently implies that these “ongoing evaluations” constitute negative evaluations. … The Court also makes the reasonable inference that these statements imply that these allegedly negative evaluations serve as the reason the School Board did not extend Dr. Parker’s contract.
The court found that these were implied assertions of fact, not opinion, that they carried sufficient “sting” to be actionable under Virginia law, and that the plaintiff had adequately alleged that the defendants made the statements to the press with full knowledge that the message being conveyed was false. The court denied the motion to dismiss and allowed the case to proceed.
I suppose the lesson here is that a speaker doesn’t need to actually wink, nudge the listener in the ribs, or verbalize “wink wink, nudge nudge!” to convey a defamatory message by innuendo. If a reasonable listener would interpret the statement as implying a defamatory meaning, defamation liability may arise even in the absence of winks or nudges.
Need I say more?