Opinion Category Archives — The Virginia Defamation Law Blog Published by Reston Defamation Attorney — Virginia Slander & Libel Lawyer

January 10, 2024

Context Helps Separate Fact From Opinion

Defamation actions cannot be based on expressions of pure opinion because such statements are protected by the First Amendment. To survive a motion to dismiss, a plaintiff needs to allege a false assertion of fact. Separating fact from opinion, however, is not always as clear-cut as one might expect. Courts have reached differing conclusions on whether words like “racist” and “unethical” state facts or merely personal opinions. The easiest way to distinguish fact from opinion is to ask whether the statement is capable of being proven true or false. If so, it’s likely a factual statement. (Statements of opinion can’t be proven true or false because they depend on the speaker’s personal, subjective viewpoint.) To do this, it’s necessary to determine exactly what “the statement” is. In other words, what, exactly, is the message the defendant has conveyed to others about the plaintiff that has caused (or is causing) an adverse effect on the plaintiff’s reputation? This is where it becomes necessary to examine the precise context in which the statement was made.

In Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40, 48 (2009), the Virginia Supreme Court held that in analyzing whether a statement claimed to be defamatory is one of fact or opinion, “a court may not isolate one portion of the statement at issue from another portion of the statement” but must instead “consider the statement as a whole.” The court explained that to fully understand the meaning of the statement being communicated, it’s necessary to view the words claimed to be defamatory together with any accompanying statements and not to examine portions of a larger statement in isolation. Courts also need to consider the speaker, the audience, and the means or media used to communicate the message.

September 2, 2023

Courts Won’t Resolve Scientific Controversies

by Lee E. Berlik

If truth is a complete defense to a defamation action, what about “scientific truth”? Are scientific findings “facts” that can form the basis of a defamation action if a particular scientist contends they are inaccurate? If so, how much of a consensus is required before a matter of scientific inquiry can be considered “settled” and thus a matter of established fact? Anti-vaxxers have filed a number of defamation actions around the country against media outlets accusing them of spreading misinformation. Few (if any) have been successful. The consensus among the courts appears to be that defamation actions are not an appropriate means of addressing arguments over unsettled questions over which vaccines treat disease most effectively. It’s not so much a matter of whether matters of scientific inquiry should be regarded as facts or opinions but of the practical reality that academic questions on complex scientific topics just aren’t the sort of thing courts or juries are equipped to resolve as definitively true or false. Courts are interested in protecting First Amendment rights, not in picking sides in a scientific debate.

Case in point: Dr. Peter A. McCullough v. Gannett Company, filed earlier this year in the Eastern District of Virginia. Dr. Peter McCullough is a cardiologist and epidemiologist who has been a vocal critic of the medical response to the COVID-19 crisis. According to his complaint, he is “considered one of the world’s leading experts on COVID-19.” The Bartlesville Examiner-Enterprise, an Oklahoma newspaper owned by Gannett Company, ran a story in October 2021 about an upcoming appearance Dr. McCullough was to make at a local community center. The article contains several quotes from a Dr. Anuj Malik, an infectious disease physician who strongly disagreed with Dr. McCullough’s views on the effectiveness of the COVID vaccine. Dr. McCullough claimed the following statements attributed to Dr. Malik were defamatory: Continue reading

March 7, 2021

Implied Undisclosed Facts as Basis for Defamation Claim

by Lee E. Berlik

As a general rule, statements of opinion are not actionable as defamation. It’s also true, however, that indirect implications from a statement can form the basis of a defamation claim. When a person prefaces a statement with “in my opinion” or “I firmly believe,” it has no effect on whether the statement carries defamatory implications or innuendo. If a speaker expresses an opinion under circumstances that would cause a reasonable listener to understand that the opinion is based on the speaker’s knowledge of undisclosed facts, that “opinion” can be treated as an implied assertion of fact. And if that factual assertion isn’t true and conveys a defamatory meaning about someone, defamation liability may arise.

This isn’t really an exception to the rule that you can’t sue someone for defamation based on an expression of opinion. Pure opinions remain protected by the First Amendment. The question is whether a reasonable listener or reader would infer from a particular statement (whether couched as an opinion or otherwise) that the speaker or writer knows certain facts, unknown to the audience, which support the opinion and are detrimental to the reputation of the person about whom the statement is made. This is going to depend heavily on context, the identity of the parties, and the specific words used.

July 19, 2020

You Are Entitled to Your Opinions

by Lee E. Berlik

As often repeated on this blog, the expression of an opinion is protected by the First Amendment and cannot form the basis of a defamation claim. “It is firmly established that pure expressions of opinion are protected by both the First Amendment to the Federal Constitution and Article I, Section 12 of the Constitution of Virginia and, therefore, cannot form the basis of a defamation action.” (See Williams v. Garraghty, 249 Va. 224, 233 (1995)). What’s an opinion? Generally speaking, it’s a relative statement told from the speaker’s personal perspective that isn’t susceptible of being proven true or false. It’s a statement that can’t reasonably be interpreted as conveying actual facts about a person. If a jury instruction is worded in such a way as to allow for the possibility that the jury will find a defendant liable for defamation based on a statement of opinion, that verdict will likely be set aside or reversed. People are entitled to their opinions, no matter how negative or disparaging they might be; you can’t go around suing everyone who criticizes you (not successfully, anyway) unless that criticism includes defamatory falsehoods in addition to the negative opinions being expressed.

It isn’t always easy to distinguish statements of fact from statements of opinion, and lawyers get this wrong all the time. The latest decision of the Virginia Supreme Court to deal with this issue is the case of Amanda C. Padula-Wilson v. Scott David Landry, decided May 14, 2020. The plaintiff was a mother of three children involved in custody and visitation proceedings. When the custody hearing didn’t go as she had hoped, she sued one of the therapists for defamation. (She brought numerous other claims as well in a complaint containing 276 numbered paragraphs, but those claims are outside the scope of this blog). The trial court dismissed the claim, finding that the therapist’s statement was protected by both qualified privilege and absolute judicial privilege. The Virginia Supreme Court granted an appeal, but ultimately agreed with the trial court that the claim was not actionable and affirmed the dismissal.

January 23, 2020

Political Commentary Protected By First Amendment

by Lee E. Berlik

Hey, all you politicians from around the country who would bring your defamation lawsuits here in Virginia because you’ve been told it’s a plaintiff-friendly jurisdiction: just because our anti-SLAPP laws may not be as robust as they are in some other states (and that may be about to change: see House Bill 759) doesn’t mean that the First Amendment doesn’t afford protection to political commentary and opinion. Even in Virginia, a person’s personal opinions regarding a politician or celebrity are immune from defamation claims, no matter how insulting or derogatory those opinions may be. You knew when you ran for office that there would be a lot of public discussion about your behavior; the occasional inadvertent factual error comes with the territory. Politicians are expected to have skin thick enough to withstand public criticism.

Not all of them do. Much has been written about the Virginia lawsuits filed by California Congressman Devin Nunes, but today I want to discuss Joseph D. Morrissey v. WTVR, LLC. Joe Morrissey previously served as the leading prosecutor for the City of Richmond, Virginia, and is a former member of the Virginia General Assembly. As such, he is a public figure. He filed a defamation lawsuit against WTVR, LLC d/b/a CBS 6 and its reporter, Mark Holmberg, based on this video segment it ran back in 2016. Morrissey claimed the video made him appear unfit to serve as mayor and portrayed him as a “stupid liar, who was a sex crazed maniac.” In the video, Holmberg refers to Morrissey as a “fool” and a “clown” and stated that the Virginia State Bar was “coming after him.” Morrissey demanded $1,350,000 in damages.

August 22, 2019

Juries Cannot Base Defamation Verdicts on Statements of Opinion

by Lee E. Berlik

Statements of pure opinion are protected by the First Amendment and are not actionable as defamation. Whether an alleged defamatory statement is one of fact or opinion is a question of law to be decided by the court, not the jury. It is also for the trial judge (and not the jury) to determine whether a particular statement may support a defamation action. At the same time, however, statements alleged to be defamatory must be evaluated in context, along with all accompanying statements, and cannot be considered in isolation. (See Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40, 48 (2009)). This is all black-letter defamation law, but courts have struggled with the question of how exactly to instruct a jury considering a defamation claim based on a statement that includes both statements of fact and expressions of opinion. Today we have a new opinion offering some guidance. (Full disclosure: my firm was involved in the case).

Handberg v. Goldberg involved a dispute between a Loudoun County resident and The Morgan Center, a provider of educational advocacy services. The Morgan Center (run by Dr. Felicia Goldberg) kept Mr. Handberg’s debit card on file and would seek authorization from him prior to charging it for various services. Billing disagreements arose and Handberg eventually sent an email to his son’s school informing them that Dr. Goldberg no longer represented his son and including various details about the parties’ billing dispute. Dr. Goldberg sued Mr. Handberg for defamation based on this email, identifying 11 specific statements she believed were defamatory. Among those 11 statements were these three:

July 20, 2019

Trial Courts Must Screen Out Defective Defamation Cases

by Lee E. Berlik

The Virginia Supreme Court has had enough of defamation verdicts based on subjective statements that are relative in nature and depend largely on the speaker’s viewpoint. Such statements are statements of opinion, not fact, and cannot support a defamation verdict. A few years ago, the Court made it very clear that “ensuring that defamation suits proceed only upon statements which actually may defame a plaintiff, rather than those which merely may inflame a jury to an award of damages, is an essential gatekeeping function of the court.” (See Webb v. Virginian-Pilot Media Companies). This means that if a plaintiff files an action for libel or slander based solely on a statement of opinion, the trial court’s duty is to dismiss the case at the outset.

Of course, this doesn’t always happen, as illustrated by the recent case of William D. Sroufe v. Muriel Tamera Waldron. Mr. Sroufe is the division superintendent for Patrick County Public Schools. Ms. Waldron is a former principal of Stuart Elementary School in Patrick County. Mr. Sroufe was unhappy with Ms. Waldron’s performance, particularly in connection with her administration of Virginia’s Alternative Assessment Program (“VAAP“) for students with learning disabilities. He decided to ask the school board to reassign her to a teaching position, explaining his reasoning as follows in a letter he gave to her:

You failed to ensure that the [Individualized Education Program] Teams understand the [VAAP] participation criteria and apply them appropriately when considering students with disabilities for the VAAP. Your actions will result in students being required to take [Standards of Learning] assessments who, under a correct interpretation of the criteria, should not have been required to do so.

April 18, 2018

What’s An Opinion?

by Lee E. Berlik

The First Amendment to the United States Constitution protects the right to express one’s opinions without fear of defamation lawsuits or other punishment. If you had a bad experience at a local restaurant, you are free to post a negative review on Yelp, Google, or some other consumer-review site and tell the world exactly what you think of the place. The restaurant may not appreciate the effect of your review on its average “star rating,” but it won’t be able to sue you for defamation (not successfully, anyway) if all you did was express your constitutionally-protected opinions. But what are those, exactly?

Distinguishing opinions from statements of fact is not as simple as it sounds, and in many cases, judges and scholars will reach opposite conclusions. For example, a common accusation that gets thrown around a lot is “scam artist” or “scammer.” Is that a factual assertion or an opinion? It’s hard to say without knowing more context. Is the declarant using the term to accuse someone of being “grossly unfair” (an opinion) or is he saying that actual fraud is taking place? Suppose someone writes online that Gatorade’s marketing campaign is a “scam” because Gatorade doesn’t really quench thirst as well as plain water. Contrast that with a statement accusing a local accountant of scamming customers out of hundreds of dollars by manipulating their tax returns. To “scam” someone means different things in different contexts.

October 13, 2017

Separating Fact From Opinion Is Not Always Easy

by Lee E. Berlik

Defamation Law 101 teaches that expressions of opinion are protected by the First Amendment and are not actionable in court. To bring a successful defamation suit, you’ll need to prove that someone made a false statement of fact about you. If that person merely expressed his or her personal opinion, the law of defamation will not provide a remedy, no matter how unfavorable the opinion is or how harshly it was expressed. Distinguishing assertions of fact from expressions of opinion, however, is not always an easy task. Smart lawyers and even judges will frequently disagree with each other on whether a particular statement is “fact” or “opinion”.

In theory, the differences are clear. A statement of fact is one that contains an assertion capable of being proven true or false. Statements of opinion are those that can’t be proven true or false because they depend on the speaker’s personal, subjective viewpoint. A recent Virginia case illustrates the difficulties that come with applying this test to real-world situations.

April 10, 2016

Opinions Laden with Factual Content Are Actionable

by Lee E. Berlik

As a general proposition, libel and slander liability requires a defamatory statement of fact; expressions of opinion are not actionable. Distinguishing assertions of fact from expressions of opinion, however, is not always an easy task. Factual statements are generally those that contain—expressly or impliedly—a provably false factual connotation. “Mr. Smith drank ten shots of tequila last night” is a statement of fact; either he drank ten shots or he didn’t. Expressions of opinion, on the other hand, are relative in nature and depend largely upon the speaker’s personal viewpoint. They tend to consist of evaluative statements reflecting the speaker’s own political, moral, or aesthetic views. “I think Mr. Smith drinks more tequila than he really should” would likely be deemed an expression of opinion by most courts. But consider the statement “I think Mr. Smith must be an alcoholic.” Fact or opinion?

Statements that appear at first to be opinions but which could fairly be interpreted as implying the existence of facts not disclosed by the speaker are treated by Virginia courts as opinions “laden with factual content,” which is a sufficient predicate upon which to base a defamation action. (See Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 298 n.8 (1987)). Ultimately, whether a statement of apparent opinion will be deemed sufficiently laden with factual content to support a defamation action will depend on a number of factors that would influence how a reasonable reader or listener would most likely interpret the statement. Considerations include the following:

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