Absolute Judicial Privilege Extends to Demand Letters Sent in Good Faith

July 30, 2012,

Earlier I wrote about the case of Mansfield v. Bernabei, in which Fairfax Circuit Court Judge R. Terrence Ney sustained demurrers to a defamation claim based on statements made in a draft complaint forwarded to a small group of prospective defendants for settlement purposes. Judge Ney ruled that the statements were privileged from defamation liability because they were preliminary to a proposed judicial proceeding and sent in good faith. The Virginia Supreme Court has now affirmed that decision and set forth a new test for determining applicability of the judicial privilege in Virginia.

Under the new test, communications made outside of court but preliminary to proposed judicial proceedings will be absolutely privileged from defamation liability where (1) the statement is made preliminary to a proposed judicial proceeding; (2) the statement is "material, relevant or pertinent" to the proceeding; (3) the proceeding is contemplated in good faith and is under serious consideration; and (4) the communication is disclosed only to persons having an interest in the proposed proceeding.

(Note: The court enumerated only three elements, combining (2) and (3) above. Because the test contains four distinct concepts, I find it easier to think of this as a four-part test. But that's just me.)

The plaintiffs argued that to protect communications that are not part of an ongoing judicial proceeding would encourage abuse of the legal system by aggressive lawyers, who would be free to defame others in non-judicial VSC.jpgsettings without meaningful restraint. The court downplayed this concern, finding that adherence to the elements of the test would offer adequate protection against unbridled defamation. The court also emphasized the importance of encouraging compromise and settlement by facilitating free and open communication by parties and their counsel.

Applying the test to the facts of this case, the court found that the communication at issue was privileged and that the demurrers were properly sustained. The draft complaint and demand letter were marked "For Settlement Purposes Only," and the letter warned that "formal legal action" would follow if a response were not received. Formal legal action did, in fact, follow, and the actual complaint filed was substantially similar to the draft complaint. The communications were sent only to the potential defendants who were clearly interested persons. The court therefore affirmed the judgment of the circuit court.

No Defamation Claim for Medical Resident's Poor Performance Evaluation

July 22, 2012,

Employment reviews often lead to libel allegations due to the fact they often contain harmful statements perceived by the employee to be false and defamatory. In most cases, however, even if the performance review contains a false statement, no defamation claim will lie because (1) statements of opinion are not actionable under Virginia law (or the United States Constitution); and (2) communications between people on a subject in which they both have an "interest or duty" are deemed privileged.

The Fourth Circuit Court of Appeals recently considered--and rejected--the defamation claims of Claudine Nigro, a former medical resident at the Shenandoah Valley Family Residency Program. After a semiannual performance review in 2009, Nigro was notified that she would not be renewed for another year of residency with the program. measuring_tape.jpg Nigro appealed this decision, but then resigned a few months later. She brought an action against the residency program's director and the hospital itself, claiming that she was defamed during the appeals process by the director of the program, who discussed her perceived shortcomings with the faculty appeals committee, and by employees of the hospital, who reported Nigro for allegedly recording her conversations with physicians.

Nigro alleged the Program Director defamed her with statements he made in various meetings and notices, including "There has been no evidence of improvement or intention to improve in weak areas," "There is no change in apathetic/disinterested approach or demonstrated interest in learning despite 3-4 months of discussion and coaching," and "There is faculty consensus that [Nigro] may be suffering from depression or poor career choice." The court found that all the alleged statements were either opinion, factually true, not defamatory, or were protected by the qualified privilege applicable to statements made to another with a corresponding interest or duty.

One alleged statement was that Nigro had "failed NICU." The Court acknowledged that the statement was technically false, but opined that the statement lacked sufficient sting to be defamatory. Not all false statements about a person will support a defamation action. The words must be sufficient harmful in that they would tend to deter third persons from associating or dealing with the subject of the statement. The court found that a false allegation that Nigro failed the Neonatal Intensive Care Unit was "not sufficiently harmful" to be defamatory.

Court Excludes Unreliable Expert Testimony in Defamation Case

July 5, 2012,

A court's role is to act as a "gatekeeper" where evidence is concerned, and under Federal Rule of Evidence 702, a court should exclude expert testimony that is not reliable and helpful to the jury. Rule 702 provides that an expert's opinion is reliable if (1) it is based upon sufficient facts; (2) it is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case. The United States District Court for the District of Columbia recently applied this three prong test and granted a defendant's motion to exclude expert testimony in a defamation case.

In Parsi v. Daioleslam, Dr. Trita Parsi, president of the National Iranian American Council (NIAC) and NIAC filed a defamation action against Seid Hassan Daioleslam alleging that Daioleslam published numerous false and defamatory statements on internet websites characterizing plaintiffs as members of a subversive and illegal Iranian lobby. Plaintiffs alleged that defendant's statements injured their reputations, hampered NIAC's effectiveness as an advocacy group, and damaged their fundraising efforts. In support of their claims, plaintiffs proffered two experts. Plaintiffs hoped that the testimony of Debashis Aikat, a journalism professor, would establish that defendant's writings did not meet the standard of care for journalists. Plaintiffs submitted the testimony of Joel Morse, a financial economist, to establish plaintiff's economic damages suffered as a result of the alleged defamation. Defendant moved to exclude both men's testimony, arguing that neither expert's testimony met the standards of admissibility.

The court found all three reliability prongs of Rule 702 lacking in Aikat's testimony. First, the "sufficient facts" Aikat relied on were defendant's articles and sources cited therein. Because Aikat read only a haphazard selection of defendant's sources and no background material, the court found the "facts and data" Aikat relied on to be teacher.jpginsufficient. Second, the court found Aikat's testimony was not the product of reliable principles and methods. Aikat refused to give any description of his methodology beyond reading and viewing. The court noted that Aikat's methodology could have been to compare defendant's performance to applicable professional standards, which would have been an acceptable methodology.

However, the court concluded that Aikat's view of the applicable professional standard was driven less by objective sources and more by his personal views which is not an acceptable methodology. Finally, the court held that even if Aikat identified an objective professional standard, he failed to reliably compare defendant's writings to that standard. He did not systematically review defendant's source materials, and he decided inexplicably that secondary materials were insufficient. He opined that defendant had not allowed plaintiffs to respond to claims made in defendant's writings, but did not explain this conclusion, and he ignored evidence that subjects had been given the opportunity to respond. Because none of the three Rule 702 prongs were met, the court did not examine whether Aikat's testimony would be helpful to the jury.

The court went on to examine the testimony of Joel Morse to determine whether it was relevant and reliable under Rule 702. The court found troublesome Morse's assumption that defendant's writings alone were responsible for NIAC's financial position, particularly when evidence indicated that NIAC's finances were affected by increased expenses and general economic conditions in the country. The court also had concerns about some of Morse's calculations--he used seemingly arbitrary baselines which he did not explain yet which aided plaintiffs' damages calculations. Morse did not discount any of his damages figures to their present value which the court found to be inexplicable as tort awards must be so discounted. The court found that "[g]iven the multiple factual, arithmetical, and theoretical errors," Morse's calculations were not reliable enough to put before a jury. The court therefore granted both of defendant's motions to exclude plaintiffs' expert testimony.

Breach of Non-Disparagement Agreement Leads to Defamation Claim

June 29, 2012,

The United States District Court for the Western District of Virginia has found that negative comments a customer service representative made to a customer may form the basis of a defamation action.

Charles and Donna Bates operate a school photography business. They entered a contract with Strawbridge Studios, Inc., also a school photography business, under which Strawbridge purchased the Bates' accounts and employed them to handle certain accounts. The relationship deteriorated and ended in the Bates filing a breach of contract action again Strawbridge. The parties resolved their dispute and entered a settlement agreement which included a non-disparagement clause providing that neither party would "say, write, publish, broadcast, or in any other way participate in negative or disparaging comments about the other."

Later, when a customer called Strawbridge looking for a photograph she believed the Bates had taken, Strawbridge's customer service representative told the customer that the Bates were "not reputable" and "could not be trusted." The representative also stated that "things got so bad" that Strawbridge "had to get involved in a lawsuit." The Bates filed a second suit against Strawbridge and included a claim for defamation.

Strawbridge moved for summary judgment on the defamation claim, arguing that (1) the Bates failed to prove that the customer service representative made the alleged statements, (2) the Bates failed to produce evidence that the statements were false, (3) the statements were expressions of opinion, and (4) a qualified privilege protects the statements.

The court rejected all of Strawbridge's arguments, first finding that the Bates' customer declaration describing the customer services representative's negative comments was sufficient evidence to establish that the allegedly defamatory statements were made. The court then noted that the issue of whether a plaintiff has sufficiently proven the falsity of allegedly defamatory statements is a question to be decided by a jury. Strawbridge submittedstudio light.jpg third party declarations stating that the Bates were not trustworthy and did not have a good reputation, and the Bates proffered declarations from individuals that cast them in a positive light. Given this evidence, the court found that reasonable minds could differ on the issue of truth or falsity and therefore the issue must go to the jury.

Whether an allegedly defamatory statement is fact or opinion, however, is a question of law to be determined by the court. The court noted that in making such a judgment, it must consider the statement as a whole. The court found that the statements could be reasonably understood to imply the existence of defamatory facts given the context in which they were made and the fact that the customer service representative referred to the lawsuit between the parties. Therefore, the court was unable to conclude as a matter of law that the statements at issue were pure expressions of opinion.

Finally, the court rejected Strawbridge's qualified privilege argument. A communication made in good faith on a subject matter in which the person communicating has an interest or owes a duty is qualifiedly privileged if made to a person having a corresponding interest or duty. For the privilege to apply, Strawbridge must show that its representative and the customer had corresponding duties or interests in the subject matter. Here, Strawbridge failed to show that the customer had any interest in learning about Strawbridge's failed business relationship with the Bates. In fact, the customer stated in her declaration that she "had no interest in hearing these backbiting comments."

Lawyer Files Defamation Action Against Television Stations for Faulty Report

June 17, 2012,

Indiana lawyer Mark K. Phillips has filed a libel and slander action against two media outlets, Nexstar Broadcasting Group and Mission Broadcasting, for mistakenly identifying him as a child molester. In 2011, Mark S. Birge, Phillips' client, pleaded guilty to child molestation in an Indiana court. When the local news companies reported this story during the next two days, they mistakenly announced instead that Birge's attorney, Mark Phillips, had been convicted of child molestation and would be sentenced to up to 16 years in prison. The media companies published a correction to the story over a month later, but Phillips filed suit anyway for slander per se, libel per se, and defamation. He seeks more than $1 million in compensatory and punitive damages.

Likely issues will include whether the lawyer is a "public figure" required to prove malice, the extent to which the media outlets are at fault for the mistaken report, and the legal effect of the subsequent correction.

Phillips asserts that the defendants are liable for defamation because they falsely identified him as the child molester knowing the statements to be false. As a result, he claims he "has suffered ridicule, damage to his TV.jpgprofessional and personal reputation within the community and the tri-state area, emotional and physical pain, disgrace, and stress within his marriage and with his family, embarrassment, and loss of opportunity to achieve his potential as a professional." Phillips suggests that the severity of the impact of these stories on him is a result of the fact that he is an active member of the community. He has coached a Special Olympics basketball team for over 18 years, is a member of multiple legal professional groups and country clubs, and maintains an active legal practice in multiple states.

In addition, Phillips claims that the stories posted on the Internet amount to libel per se and the televised broadcasts to slander per se because the stories falsely (and with reckless disregard for the truth) claimed that he committed a crime of moral turpitude. He seeks both compensatory damages and punitive damages for the malice, fraud, and gross negligence committed in the course of this reporting.

The defendants removed the case to federal court and have yet to file an answer. Phillips is representing himself.

Virginia Law Firm's Defamation Claim Dismissed As Opinion

June 11, 2012,

When several law firm clients were vocally unhappy about the firm's work product and billing practices, and expressed their views to a Virginia legal newspaper, the firm slapped them with a defamation suit in Richmond federal court. However, finding the allegedly defamatory statements to be subjective statements of opinion, the court dismissed the claim.

The Virginia law firm of Cook, Heyward, Lee, Hopper & Feehan, P.C. ("Cook Heyward") entered into a contract for legal services with Trump Virginia Acquisitions LLC, Trump Vineyard Estates, LLC, and The Trump Organization, Inc. Cook Heyward provided the Trump Entities with invoices itemizing fees and costs over the course of the representation. The Trump Entities requested Cook Heyward to reformat the invoice but did not object to the amount billed, and they continued to request legal services from Cook Heyward.

After a second updated invoice, the Trump Entities indicated that they had no problem with the quality of the legal work, but thought the bills were "too high" and suggested Cook Heyward reduce its fees by approximately seventy percent. Cook Heyward informed the Trump Entities that they intended to file a motion to withdraw as counsel. trump.jpgThe Trump Entities asked Cook Heyward to reconsider, then informed them that they "should expect very bad publicity" regarding their withdrawal as counsel. After repeated requests for payment, Cook Heyward filed a motion to withdraw which the court granted.

The Trump Entities' General Counsel gave an interview to Virginia Lawyers' Weekly in which he stated that the Trump Entities were "very, very disappointed" in Cook Heyward's work quality and billing practices. He also claimed that he had to redo Cook Heyward's work multiple times. Cook Heyward filed a suit against the Trump Entities which included a count for defamation per se. The Trump Entities moved to dismiss the defamation claim.

In Virginia, a plaintiff claiming defamation must prove that the defendant published an actionable statement with the requisite intent. An actionable statement is one that is false and harms the plaintiff's reputation. If the statements are objectively true or are protected expressions of opinion, there is no actionable defamation. Words which injure a person in his profession or trade are actionable as defamation per se, meaning that the plaintiff need not show harm to reputation.

Cook Heyward argued that the Trump Entities published false, factual statements which prejudiced them in their legal profession, thus constituting defamation per se. The Trump Entities responded that the statements at issue were statements of pure opinion protected by the First Amendment.

In determining whether the statements were fact or opinion, the court first examined whether the language the Trump Entities used was "loose, figurative or hyperbolic"-- traits that would suggest the statement was not one that could reasonably be interpreted as one intended to convey actual facts. The court also considered the context and general tenor of the Virginia Lawyers' Weekly article, noting that a statement expressing a subjective view rather than an objectively verifiable fact does not constitute defamation, and that pure expressions of opinion and rhetorical hyperbole are constitutionally protected because they cannot be objectively characterized as true or false.

Based on the tenor, language, and context of the article, the court found that the statement that the Trump Entities were "very, very disappointed" in Cook Heyward's work quality and billing practices was a subjective expression of opinion. The court noted that statements of unsatisfactory job performance generally do not rise to the level of defamation and that the concept of being "disappointed" is a relative one, contingent on the speaker's internal viewpoint.

The court also found that the Trump Entities' statement that they needed to redo Cook Heyward's work represented a relative concept requiring the exercise of discretion and individualized judgment. The alleged necessity of redoing the work depended on the Trump Entities own evaluation and assessment. Finding both statements to be protected expressions of opinion and not actionable as defamation, the court dismissed Cook Heyward's defamation claim.

Libel Case Filed by Laurie Fine Against ESPN

June 4, 2012,

Laurie Fine, the wife of Bernie Fine, former Associate Coach of the Syracuse University men's basketball team, has filed a libel and defamation action against ESPN and two of its employees, Mark Schwarz and Arthur Berko. ESPN published several stories about her relating to her husband's alleged molestation of minors. She seeks compensatory and punitive damages.

In the 1980s, the Fines took in a Syracuse basketball 'ball boy,' Robert Davis, who later accused Bernie Fine of molesting him while he lived there. Davis also accused Laurie Fine of knowing about the molestation and allowing it to continue. He also claims to have had a sexual relationship with Laurie while he was in high school.

The complaint paints a picture of a troubled young man who financially took advantage of the Fines, often fabricating stories to trick them into giving him money. It asserts that, to elicit sympathy and funding, Davis told Laurie that Bernie had molested him in the 1980s but that the couple continued to enable him. The complaint portrays the plaintiff as suffering through conversations with Davis in hopes he would outgrow his problems, using sarcasm to keep from 'going off' on him and asking questions to 'test' how far the young man would go. These allegations appear to offer a different interpretation of statements attributed to her in a 2002 taped recording Davis made.

According to the complaint, Davis offered his molestation story to a Syracuse newspaper in 2002. The paper did not publish it due to lack of corroboration. He then approached ESPN and gave Schwarz and Berko a taped recording of a conversation he'd made, purportedly of a conversation he'd had with Laurie in which Laurie discusses her husband's activities. ESPN did not publish the story, but Ms. Fine says the ESPN reporter and producer remained interested and kept in touch with Davis.

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Ms. Fine claims Davis used the publicity surrounding the Penn State child abuse scandal to reignite his story. She says the reporters had developed ill will toward the Fines and had become so personally invested in the story that they accepted questionable corroboration of a recanting witness and sent another potential corroborating witness to Davis for coaching on what to say and then leaked the story to a newspaper to bolster the story.

In late 2011, ESPN published excerpts from Davis' taped recording and published over 40 minutes of it last month. ESPN published several stories about Laurie Fine including one in February 2012 that quoted a Davis affidavit stating it was openly known that multiple Syracuse basketball players had engaged in sexual relationships with her.

Ms. Fine maintains that all these stories are false and ESPN's publication of them with actual malice and reckless disregard for the truth constitutes libel and defamation. Her claims could depend on whether she was a public figure at the time of disclosure. Public figures do not enjoy the same level of privacy in their personal lives and carry higher burdens of proof when bringing defamation suits.

Ms. Fine was an active member of the Syracuse community, raising money for various charities that sought her out, especially child-related charities. She seeks damages for her damaged reputation, emotional distress, mental pain and suffering, permanent impairment of employability and related losses.

First Amendment Right to Anonymous Internet Speech Challenged by Florida Doctor

May 28, 2012,

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 scope.jpgquash 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).

John Doe's Motion to Quash argues that to reveal his identity would stifle free speech and that the First Amendment protects anonymous speech regarding matters of public concern such as the performance of a physician and his products. John Doe also contends that Dr. Soto filed the case in Virginia in order to cause him expense and hardship as the case has no apparent connection to Virginia. According to Doe, Dr. Soto filed the case solely to chill online criticism and coerce him into removing the postings.

Dr. Soto's attorney apparently concedes that some of the posted comments constitute protected opinion, but he contends that comments about unevenness and scarring are defamatory because they are not true. Soto's attorney learned that the online critic is a Florida schoolteacher and says he plans to transfer the suit to Florida.

Online review sites such as Yelp, Angie's List, Trip Advisor and Healthgrades.com, on which users can comment on the quality of service or care they received have flourished in recent years and are useful tools for consumers seeking information about service providers. However, professionals on the receiving end of criticism argue that these sites can become a forum for disgruntled consumers to unfairly bash them. In this author's view, Dr. Soto's case fails to state a defamation claim sufficient to overcome the First Amendment right to online Internet speech, and the court should quash the subpoena to Comcast.

Defamation Claims Asserted by Church Against Former Members

May 17, 2012,

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.

Shortly thereafter, the church and its Pastor filed a defamation complaint against Mrs. Smith and her daughter based on statements they posted online. The allegedly defamatory comments included statements that the Pastor misled the congregation and used "control tactics," that the church was not a healthy or safe place, was destructive and disturbing, and that it had a spiritually abusive environment. Mrs. Smith wrote that there is something "creepy "about the church, and she claimed that the church turned a blind eye to known sex offenders. She stated that the Pastor's "extra-biblical legalistic teaching" was wrong and that he was a liar. Mrs. Smith's daughter posted a Google review stating that the Pastor micro-managed things and bullied people and that one could not find grace at the church.

The Smiths responded with a Special Motion to Strike under Oregon's anti-SLAPP statute which allows a defendant to move to strike a claim that "arises out of" a statement made in a public forum in connection with an issue of public interest. If a defendant shows that the claim indeed "arises out of" such a statement, the plaintiff must present substantial evidence that the claim will prevail.

The anti-SLAPP statute should apply, in my view, because the Internet is a "public forum" and the statements concern matters of public interest. Various segments of the population have an interest in the statements at issue, including members of churches all over the world, people concerned with questions of personal salvation, radio listeners who hear the Pastor's sermons broadcast in the greater Portland area, persons who are the focus of the Church's evangelism, and those debating the impact of "spiritual abuse."

The church may end up having to pay the Smiths' attorneys' fees, because it's unlikely it will be able to demonstrate a likelihood of success on the merits. The statements at issue concern matters of opinion, which are not actionable. Moreover, the statements involve matters of church practices and personal religious conviction, which are protected by the "church autonomy doctrine." Finally, even if the court determines that a statement could be considered defamatory, the court will most likely find the church to be a "public figure," which would mean it could not recover absent a showing of malicious intent. Expect to see the SLAPP act put into action out in Oregon.

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

May 12, 2012,

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.

Maddow has moved to dismiss the case under D.C.'s Anti-SLAPP law. SLAPP is an acronym for Strategic Litigation Against Public Participation. The D.C. Anti-SLAPP Act of 2010 is designed to discourage frivolous lawsuits aimed at chilling the exercise of free speech rights. Virginia does not have an anti-SLAPP statute, and the law in D.C. did not become effective until March 31, 2011.

In her motion, Maddow gives three reasons why Mr. Dean's lawsuit should fail: 1) Maddow merely abridged and replayed original audio of Dean speaking on his own radio show; therefore, Dean cannot claim that he did not make the statements, and the fact that she abridged the original audio is irrelevant; 2) Maddow's commentary on Dean's statements is classic opinion and rhetorical hyperbole--fanciful language that may be exaggerated but is not grounds for a defamation suit; and 3) the fair comment privilege protects Maddow's commentary--the broadcasts featured Dean's actual statements and indicated the source of those statements such that viewers were free to make up their own minds regarding Maddow's remarks. Maddow contends that Dean's lawsuit is without merit and was instead filed to further his self-described mission to stop the "radical gay agenda." She asks the court to punish Dean for filing the suit by dismissing it and granting legal fees.

This is one to watch...stay tuned.

Facebook "Likes" Not Protected Speech, Says Virginia Court

May 6, 2012,

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 Like Button.jpghad 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.

To state a claim under the First Amendment for retaliatory discharge, public employees must prove that they were terminated on the basis of "speech" on a matter of public concern. Here, the court concluded that merely "liking" a Facebook page is insufficient speech to merit constitutional protection. The court examined holdings in which constitutional speech protection extended to Facebook posts, and it noted that in those cases, actual statements existed within the record. Conversely, it found, simply clicking the "like" button on a Facebook page is not the kind of substantive statement that warrants constitutional protection. Likewise, the court found that the presence of a bumper sticker supporting Adams did not constitute protected speech without any evidence that the Sherriff was aware of the bumper sticker. The court also found that statements describing the Sherriff's campaign literature, regardless of expletives, did not constitute protected speech because they did not address a matter of public concern but were instead descriptive of personal opinion.

The court also held that even if the plaintiffs' First Amendment arguments had merit, their claims would have failed anyway because the Sheriff was entitled to both qualified and sovereign immunity.

As several commentators have already pointed out, this ruling seems contrary to Supreme Court precedent affording First Amendment protection to such acts as saluting a flag, refusing to salute, and wearing an armband. But I disagree with Professor Eugene Volokh, who writes that "the whole point" of the "like" button is to convey "a message of support for the thing you're liking." When you "like" a Facebook page, you get updates from the page you liked in your news feed. Therefore, "liking" a person's Facebook page may be intended as nothing more than a means of monitoring that person's public statements; it doesn't necessarily mean you like or support those statements. It will be interesting to see how the Fourth Circuit deals with this.

Public Figure Fails to Present Plausible Defamation Case

May 2, 2012,

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.

The district court found that Besen was a limited-purpose public figure because he used his access to channels of communication to influence a public controversy in which he had voluntarily assumed a role of special prominence. First, the issue of gay rights and equality is clearly a public controversy and Besen had a special role within this controversy as a result of his position in TWO. Moreover, the court found that even though most individuals on the street in the Washington, D.C. metropolitan area would not recognize Besen, he had enough "publications, media appearances, and self-acclaimed ability to impair the opposing campaign," to be treated as a public figure, at least when limited to the gay rights controversy.

Because Besen is a public figure, the district court dismissed his claim because he failed to demonstrate how Quinlan made his statements with actual malice. No facts were alleged sufficient to show a plausible claim that Quinlan knew or should have known that his statements were false.

Defamed Lawyer and Wife Win $13.7 Million Against "Anonymous" Posters

April 27, 2012,

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 laptop.jpgvicious, they had to move out of their town and Mrs. Lesher lost her business, a day spa. Mr. Lesher lost substantial business as well.

The Leshers were tried and acquitted on Coyel's sexual assault claim. They then brought a libel suit against those who had posted the comments on Topix.com, naming the 178 pseudonyms associated with the comments they considered the most damaging and promptly issuing subpoenas to uncover the posters' identities. Topix moved to quash the subpoena as overly broad and sought a protective order to withhold the identities of those sued. A California court granted the motion to "protect the identities of the anonymous Internet posters," but permitted the Leshers to obtain their IP (Internet Protocol) addresses.

The IP addresses led the Leshers to the Coyel salvage yard. The Leshers amended their petition to focus on Mr. Coyel, his business, his brother, two of his employees, and Mrs. Coyel. The case was tried, and the jury returned a verdict totaling $13.78 million against Mr. and Mrs. Coyel and one of the salvage yard employees for mental anguish, loss of reputation, and Mrs. Coyel's loss of her business.

It is not unusual for individuals to suffer defamation, threats, having their home addresses posted, and other such attacks, through the anonymity of the Internet. Website owners are generally not required to moderate inflammatory posts and often will refuse to remove damaging content. There is a common misconception that "free speech" includes the right to post defamatory material on the Internet anonymously. This case should serve as a wake-up call to those who would attack others online.

Defamation Plaintiffs Must Plead Exact Words and Non-Privileged Publication

April 23, 2012,

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-IBM_mouse.jpgPackage 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.

The publication requirement contemplates publication to a third party. An intra-corporate communication heard solely by those who have the duty or authority to receive the information has not been "published" for purposes of a defamation claim. Moreover, internal corporate communications are usually deemed privileged when made in the ordinary course of business. In Tomlin, the plaintiffs contended that Ms. Minton-Package communicated the allegedly defamatory statements to other employees at IBM. Plaintiffs did not claim that those employees did not have a duty or authority to receive the communication and therefore failed to establish publication or overcome the privilege.

The court dismissed plaintiffs' defamation claims for failure to plead any exact words constituting the allegedly defamatory statements by defendants other than Ms. Minton-Package, and it dismissed the claims against Ms. Minton-Package for failure to sufficiently allege publication. However, the court granted plaintiffs leave to amend their complaint.

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

April 16, 2012,

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.

The complaint recites a series of allegedly libelous statements Goehring made, on behalf of himself and his wife, to the Assistant Commonwealth's Attorney handling the case. For example, in one email, Goehring reportedly called Hubbard a "crafty talented thief' and accused her of stealing $122,000 from him and his wife over a two-year period. In others, he allegedly called her a "master criminal/con artist" and accused the family of fraud, conspiracy, forgery, and embezzlement and referred to them as a "crime family."

The plaintiffs claim Goehring maliciously defamed them--and continues to do so--so he could evict them from his properties and obtain back rents from them to which he is not entitled. Each plaintiff seeks $500,000 in compensation as well as punitive damages for damage to reputation, emotional distress, embarrassment, humiliation and similar losses. Ms. Hubbard seeks an additional $500,000 against the Goehrings for malicious prosecution.

Virginia courts generally disfavor actions for malicious prosecution arising out of criminal proceedings so as to ensure appropriate criminal cases are brought without fear of civil reprisals. But the law allows such cases where the allegations were false and the individual instituted or cooperated in the criminal action maliciously, without probable cause, and the case terminated favorably for the plaintiff.