Recently in Defamation Per Se Category

Familiar Rhetorical Devices May Not Carry Defamatory Meaning

August 11, 2014,

Extortion is a crime. Statements that falsely accuse another of committing a crime often constitute defamation per se in Virginia, particularly where the crime is one involving "moral turpitude." Does it follow, then, that false accusations of extortion will automatically qualify as defamation per se? The answer, which will undoubtedly surprise many of you, is no. The reason lies in the importance of context in defamation actions.

A good illustration comes from the Tenth Circuit, which issued its decision in Hogan v. Winder a few days ago. Chris Hogan worked as a consultant for the Utah Telecommunications Open Infrastructure Agency ("UTOPIA"), a state agency charged with upgrading high-speed Internet access. In the spring of 2011, Hogan began to suspect that UTOPIA's executive director unfairly favored a bid for a contract from the company where the director's brother worked, and he expressed his suspicions to UTOPIA's plant manager. He was terminated shortly thereafter. Believing that his termination was retaliatory, he hired a lawyer and sent UTOPIA a draft complaint along with certain settlement demands, pointing out that the public scrutiny that would result from filing the lawsuit would essentially destroy the company. In a response, UTOPIA's attorney characterized Hogan's demands as "extortion" and "blackmail."

Both sides filed lawsuits, and the dispute gained some local press coverage. One headline read, "Former UTOPIA contractor accused of extortion." The article that followed quoted UTOPIA's Chairman as citing "performance issues" as the reason for Hogan's termination. The article also reported on Hogan's accusations of conflicts of interest and mismanagement at UTOPIA. Hogan sued for defamation, claiming that the articles caused him emotional distress and prevented him from finding employment in the telecommunications industry.

The case was decided under Utah law, but the principles of defamation law on which the case was decided are substantially the same here in Virginia. As in Virginia, for example, defamatory meaning depends on the context in which the statement was made. Citing an opinion from the Utah Supreme Court, the Tenth Circuit explained that jail.jpg"words that appear at first blush to convey a defamatory meaning may be explained away as innocuous when their context is made clear. Conversely, words innocent on their face may, when explained in context, convey a defamatory meaning."

The job of the appellate court is to conduct a context-driven assessment of the alleged defamatory statement and reach an independent conclusion about the statement's susceptibility to a defamatory interpretation. If the context makes clear a reasonable reader would not accept the statements at face value, the statements do not harm reputation and therefore are not defamatory as a matter of law. In evaluating the context of a media report, the court held, courts should examine (1) the words themselves and their implications; (2) the entire article or message; (3) the events or disputes that gave rise to the article; and (4) the likely effect on the reasonable reader.

Hogan argued that the reports that he was "accused of extortion" suggested falsely that he had been accused of committing a crime and were therefore defamatory. Both the district court and the Tenth Circuit disagreed, noting that accusations of "extortion" are a familiar rhetorical device. As such, depending on context, such accusations are often not interpreted literally. The court noted that the article in question reported accurately that the statement was made by UTOPIA's lawyer in a letter to opposing counsel discussing the parties' employment dispute. In that context, the court found that no objective reader would believe that Hogan had committed a crime. Rather, most would recognize the statement as mere hyperbole and rhetorical flourish made in the context of a heated disagreement.

The court also rejected Hogan's argument that he was defamed by the headline. While recognizing that many people would stop reading at the headline and would not bother to read the explanation provided in the accompanying article, the court nevertheless found that it was obvious from the headline that there was more to the story, and that the full context of the statement would be provided in the body of the article. The result might be different (i.e., a headline might conceivably support a defamation when read in isolation) if the headline was disloyal to the article it advertised, but Hogan had made no such allegations. The court therefore affirmed the dismissal of the claim.

Virginia Lawyer Says TV Report of Criminal Conviction Defamatory

July 29, 2014,

According to The Virginian-Pilot, Portsmouth attorney Sterling H. Weaver was "convicted in Portsmouth General District Court of assault" in June 2006. A new lawsuit filed by that attorney alleges that a WAVY-TV report, broadcast in February 2014, reported similarly that "in 2006, a Chesapeake judge sentenced [Mr. Weaver] to 30 days in jail for grabbing a prosecutor by the throat after she asked to postpone a case." (The quote is from the complaint, not the WAVY-TV report). Mr. Weaver says that he heard the report while in jail, where he was staying after being "indicted for assault on a law enforcement officer and sexual battery of that officer." The report was defamatory, the lawsuit claims, because "the 2006 charge of assault was dismissed."

Those of you who share with me an unnatural interest in Virginia defamation law are naturally curious as to what the issues in this case are going to be. There are several in my mind, but here are the first few that jump out:

Truth vs. Falsity. Was Mr. Weaver convicted or not? Did the general district court judge sentence him to 30 days in jail? The Virginian-Pilot report noted that Weaver had appealed his conviction to circuit court and that counsel for both parties agreed that "the charge could be dismissed if Weaver remained on good behavior." The lawsuit, on the other hand, alleges that "prior to February 2014, the Plaintiff[] had not been convicted of any criminal violation." To recover for defamation in Virginia, it is necessary for a plaintiff to prove the defendant made a false statement. It is not apparent to the author of this blog that the complaint in this case does that. The complaint accuses the broadcaster of stating that Weaver was sentenced to 30 days in jail, but lacks any allegation that this sentence never happened. Instead, it alleges only that the charges were eventually dismissed. This, coupled with the substantial-truth doctrine, may not be enough to get past a 12(b)(6) motion to dismiss.

Fair Report Privilege. Even if Mr. Weaver can show that the television broadcast made an express or implied false statement, he will still have to overcome the protections afforded by the First Amendment and the common law "fair report" privilege. This privilege allows reporters to write stories about pending criminal proceedings without fear of jail.jpgbeing held liable for repeating or "republishing" potentially libelous statements made in the course of the proceeding. Even if otherwise defamatory statements are made in the course of a proceeding open to the public, the media has a qualified privilege to report the matter. All that is required is that the report be a fair and substantially true account of the case. The rationale behind this privilege is that everyone has a right of access to public proceedings and a right to be informed of official government actions, particularly on matters of public interest. Frequently, the only way the public can learn of these proceedings is through media reports. Therefore, the public interest is best served by allowing reports of proceedings (even if they involve defamatory allegations or criminal conduct) provided the report is fair and accurate.

Damages. Normally, except in cases of defamation per se, a plaintiff is required to prove damages for the alleged injury to his reputation. Mr. Weaver will likely argue that this is a "per se" case because if he was falsely labeled as a convicted criminal, that would be the sort of statement that would impute to him an unfitness to perform the duties of his job as an attorney. What is interesting here is that a quick Google search of Mr. Weaver yields a number of news stories alleging questionable conduct by the lawyer. According to a 1997 Daily Press article, Weaver "admitted having sex in his office with a 35-year-old client while other people waited in an adjoining room." Another report on wavy.com indicates he was recently "indicted...for assaulting a law enforcement officer and sexual battery." Mr. Weaver's own lawsuit acknowledges that he heard the WAVY-TV broadcast while "lying on the floor in the Portsmouth City Jail." So the question at trial (if the case makes it that far) is going to be: even if the broadcast in question was inaccurate in reporting a "conviction" or 30-day sentence, did that really make Mr. Weaver's reputation worse than it already is? If so, how can the jury place a value on the incremental harm? Is Mr. Weaver "libel proof"? I'm not going to endeavor to answer these questions here. Suffice it to say that if the case survives the inevitable motion to dismiss, it will be interesting to see how the parties and the court deal with the issue of damages.

Nude Model Not a Porn Star; Photo Altered to be Pornographic Defamatory Per Se

April 21, 2014,

In James M. Tharpe, Jr. v. Rudy K. Lawidjaja, currently pending in the Lynchburg Division of the Western District of Virginia, plaintiff James Tharpe, a professional soccer coach and part-time model, alleges that photographer Rudy K. Lawidjaja persuaded him to pose nude after assuring him that no photographs showing Tharpe's genitals or buttocks would be distributed. Lawidjaja took numerous nude photos of Tharpe and promoted him as a model. Eventually, the parties' relationship deteriorated. Tharpe refused Lawidjaja's invitation to quit his job as a soccer coach to relocate to the Washington, D.C. area and serve as Lawidjaja's "house model." Instead, he moved to Tennessee, where he coached soccer for a year, and later accepted a coaching position with Central Virginia United Soccer Club ("CVUS") in Lynchburg.

In August 2011, CVUS notified Tharpe that an Internet search of his name returned inappropriate and embarrassing photographs of which parties associated with the soccer club did not approve. According to the court's examination of the record, Lawidjaja had posted nude photographs of Tharpe on his website as well as other sites, identified Tharpe as a "porn star," and digitally altered the photographs to depict Tharpe with an erection and ejaculating for the camera. The court found that Lawidjaja tagged these pornographic photographs with keywords to link the photos to CVUS (Tharpe's employer, which had nothing to do with the photos) so that any Google search for CVUS would return the photographs. Tharpe sued Lawidjaja for defamation, intentional infliction of emotional distress, and other torts.

To prove a claim for defamation under Virginia law, a plaintiff must show (1) publication (2) of an actionable statement (3) with the requisite intent. A false statement must be defamatory; that is, it must tend to so harm the reputation of the plaintiff as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. A statement may be classified as defamatory per se if it imputes the plaintiff is torso.jpgunfit to perform the duties of his job or prejudices the plaintiff in his profession or trade. A photograph can constitute a defamatory "statement."

The court found that the photographs--taken in the context of their ordinary and common acceptance as the average citizen would understand them, and with every fair inference attributed to them--could be deemed defamatory under Virginia law. The court went further to hold that the photographs were defamatory per se as they arguably impute unfitness for Tharpe to perform the duties of a youth soccer coach and prejudice him in his profession or trade. Additionally, the court found that Lawidjaja "arguably intended to impute that unfitness," as indicated by his tagging the photos with the name of Tharpe's employer.

With respect to the claim for intentional infliction of emotional distress, the court noted that IIED claims in Virginia require a showing that (1) the wrongdoer's conduct was intentional or reckless; (2) the conduct was outrageous or intolerable; (3) there was a causal connection between the wrongdoer's conduct and the resulting emotional distress; and (4) the resulting emotional distress was severe. IIED claims require proof of conduct intended to cause "personal, emotional damage to an individual, rather than conduct intended to cause economic damage to a business."

Here, the court found sufficient evidence in the record to deny Lawidjaja's motion for summary judgment. Intent to cause emotional distress was evident from certain exculpatory clauses in release agreements he asked Tharpe to sign, which Lawidjaja believed gave him the right to use the photographs "for any purpose whatsoever," along with other evidence of bad faith. The court also found that a jury could reasonably conclude that falsely identifying Tharpe as a "porn star" was sufficiently "outrageous" to satisfy the tort, and that Tharpe had suffered severe emotional distress.

Defamed Business Entitled to Presumed Damages, But No Injunction

January 6, 2014,

In Virginia, a statement may constitute defamation per se if it imputes an unfitness to perform the duties of a job or a lack of integrity in the performance of those duties, or if it prejudices the plaintiff in its profession or trade. Corporations, like people, can be defamed in this manner. To prejudice a plaintiff in its profession or trade, the statements must relate to the skills or character required to carry out the particular occupation of the plaintiff. Examples include statements that cast aspersions on the target's honesty, credit, efficiency, or its prestige or standing in its field of business. The advantages to a plaintiff when the words at issue are declared defamatory per se (as opposed to per quod) are significant: compensatory damages will be presumed and need not be proven, and punitive damages may be awarded even if compensatory damages are not.

The United States District Court for the Eastern District of Virginia applied these principles in JTH Tax, Inc. v. Grabert. JTH Tax (better known as Liberty Tax Service) franchises tax preparation centers throughout the United States. Trisha Grabert had signed four franchise agreements but was terminated by Liberty due to her alleged failure to submit required reports and pay monies owed. A disgruntled Grabert resorted to www.unhappyfranchisee.com and Facebook, where she posted numerous statements asserting, among other things, that (1) Liberty's quarterly results were "lies and sloppy;" (2) Liberty "bribed" an individual "to testify falsely;" (3) Liberty was engaged in "unlawful actions" that "interfered with [Grabert's] success;" (4) Liberty "steal[s]" tax stores from franchisees; (5) Liberty is "dirty and getting sloppy so they will take your first born to save their tail right now from crippling losses and a shutdown;" and (6) "Liberty Tax, as a whole" are "crooks."

Liberty sued Grabert for defamation per se, as well as for breach of the notes and franchise agreements. The court found that the statements imputed a lack of integrity to Liberty, prejudiced Liberty in its profession, and cast aspersions on its honesty, efficiency, prestige and standing in its field. Because Grabert failed to appear and defend the accuracy of her statements, the court held that the exhibits were sufficient to demonstrate defamation taxes.jpgper se. (Note: Oddly, the court did not address whether the statements could be interpreted as mere rhetorical hyperbole or other non-actionable opinion).

The court then moved to the question of whether Liberty was entitled to recover punitive damages. Even in defamation per se cases, a recovery of punitive damages requires a clear and convincing showing that the defendant made the statements with actual malice, i.e. with knowledge of their falsity or with reckless disregard of their truth. A plaintiff can rely on circumstantial evidence and motive to prove actual malice. The court found sufficient evidence of malice.

For one thing, one of Grabert's online postings read, "I don't think for a second that they promote anything illegal. Unethical? Maybe if you interpret it that way." Second, the court found that Grabert published numerous statements on multiple website attributing sinister motives to Liberty's actions that she could have no way of knowing.

Thus, the court held that Liberty was entitled to both compensatory and punitive damages and set a hearing to establish the amount at a later date. While Liberty had also sought an injunction to compel Grabert to remove her Internet postings, the court declined to award injunctive relief because Liberty failed to demonstrate either that any harm that may have resulted from such postings was "irreparable" or that a monetary award would be inadequate.

False Accusation of Sexual Aggressiveness Per Se Defamatory, Claims FBI Agent

February 22, 2013,

Workplace defamation suits will usually raise privilege issues. When one employee complains to a manager or supervisor about another employee and falsely maligns the other employee's reputation in the process, the court will need to sort out whether the complaint is protected by qualified privilege. If it is, the statement can't form the basis for a claim unless it was made with common-law malice or made to persons having no business hearing it. Common-law malice is different than the constitutional "New York Times" malice so often discussed in analyzing defamation liability. Common-law malice generally refers to some form of ill will on behalf of the speaker, motivated by things like hatred or a desire for revenge. In Virginia, there is a presumption that the speaker acted without malice.

When a slanderous statement occurs at work, it often involves an accusation that a co-worker is unfit to perform the duties of his or her job, due to a lack of competence or lack of integrity. Statements such as these which prejudice a person is his or her profession fall into the defamation per se category, which means that a jury can presume the statement was harmful to the plaintiff, even if special damages are not proven.

Earlier this month, a case from Stafford County was removed to federal court in Alexandria. Suzanne Brown, the plaintiff, was an FBI agent assigned to the Behavioral Analysis Unit (BAU) within the Critical Incident Response FBI.jpgGroup (CIRG). The BAU handles cases involving threatened violence against public officials, and as a program manager, Brown was responsible for assessing such threats. Katherine Schoeneman, the defendant, is a psychologist who had formerly worked with Brown on some threat assessment cases under a contract with CIRG. Schoeneman offered her psychological observations while Brown provided investigative and law enforcement expertise.

The Amended Complaint alleges that in January 2010, Schoeneman failed to review a file that Brown had given her in a timely manner. Schoeneman was irritated when Brown took the file back, and she feared the Department of Justice would not renew her contract if Brown complained that Schoeneman could not handle her workload. Schoeneman then allegedly made false reports to superiors, both oral and written, claiming that Brown made sexual advances toward her and engaged in other inappropriate conduct which raised doubts about Brown's judgment and fitness for duty. The FBI investigated Schoeneman's claims, and Schoeneman allegedly made additional unsolicited and irrelevant allegations regarding Brown's psychological health.

Brown's lawsuit includes separate counts for defamation, defamation per se, and intentional infliction of emotional distress. Brown claims that Schoeneman knowingly made defamatory statements and demonstrated a reckless disregard for the truth. In doing so, Brown asserts that Schoeneman willfully and maliciously sought to harm her and that the false statements imputed a lack of fitness to perform her work duties and called her character into question. Brown alleges that, due to Schoeneman's defamation, her reputation has suffered, and she has experienced a loss of income due to demotion and suspension. She also claims emotional distress including anxiety and depression, and physiological harm such as vomiting, insomnia and chest pain. Brown is asking the court to award her economic damages, non-economic damages, punitive damages, and her fees and costs.

Defamation of Character: Libel and Slander Law in Virginia

February 10, 2013,

Under Virginia law, the necessary elements of the tort of defamation (which includes both libel and slander) are usually expressed as (1) a publication about the plaintiff, (2) of an actionable statement, (3) with the requisite intent. This sounds simple enough, but proper application of these principles is far more complicated than one would expect. This is, in part, due to the fact that the test is circular, as it begs the question of what an "actionable statement" is. It is more useful to think of Virginia law of defamation as encompassing the following eight elements: (1) a factual assertion (as opposed to an expression of opinion); (2) that is false; (3) and defamatory in nature; (4) that is about the plaintiff; (5) and made to a third party; (6) in a setting or context that isn't privileged; (7) with the requisite degree of fault; (8) that causes actual or presumed damages (generally consisting of financial loss, loss of standing in the community, and/or emotional distress).

Element (6) refers to a defense, not an element of the plaintiff's proof, but I've included it in the list to clarify that an otherwise defamatory statement made in a privileged setting will not be actionable in a court of law. Furthermore, element (8)--damages--is presumed (and need not be proven) in those situations deemed to constitute "defamation per se."

Libel and slander will be considered "per se" defamatory if it (1) imputes the commission of a crime involving moral turpitude; (2) imputes that the person is infected with a contagious disease which would exclude the party from society; (3) imputes an unfitness to perform the duties of a job or a lack of integrity in the performance of those duties; or (4) prejudices the party in his or her profession or trade. Statements that might qualify as defamation per se include an allegation that one has acted unprofessionally, an attack on a person's honesty and veracity, a false report of a corporations' profit and earnings, a statement regarding a company's inability to pay bills, and a statement suggesting a person is an incompetent businessman.

To make things more confusing, some courts use "per se" and "per quod" to distinguish between words that are defamatory on their face and words which do not appear to be defamatory, but are defamatory by implication, or that become defamatory when additional facts are made known. (When used in this sense, defamation per se refers not to the list of the four most serious categories described above, but to words defamatory on their face). Whichever definition of "per se" is used, "per quod" is the catch-all phrase that basically means "not per se."

Hundreds of Virginia state and federal cases have struggled to apply the law of defamation in a manner consistent with the United States Constitution, as defamation cases necessarily involve a careful balancing of vital constitutional and common law rights. On the one hand, there is the First Amendment's fundamental protection of free speech. On the other hand, there is a common law obligation not to abuse the First Amendment with unjustified attacks against the reputation and dignity of others. Defamation law attempts to accommodate these seemingly antithetical interests by providing a legal remedy for persons subjected to false and defamatory statements while limiting the range of statements considered defamatory and actionable.

Not every unflattering or critical remark will constitute actionable defamation. Statements that are merely unflattering, annoying, irksome, or embarrassing, or that hurt the plaintiff's feelings, without more, are not actionable. To be defamatory, a statement must be more than merely critical; it must "make the plaintiff appear odious, infamous, or ridiculous." A defamatory statement is one that causes reputational harm to a plaintiff, holding the plaintiff up to scorn, ridicule, hatred, or contempt--in other words, the type of statement that would tend to deter third parties from dealing with the plaintiff. To assert a claim of defamation, a plaintiff must show that a defendant published such a statement, that it was both factual in nature and false, and that it concerns and harms the plaintiff or the plaintiff's reputation. A plaintiff in a Virginia defamation action must plead the statement with particularity, identifying the exact words claimed to be defamatory. Failure to allege the specific words claimed to be defamatory can lead to a dismissal of the case.

Expressions of opinion are also not actionable as defamation. Statements of opinion, as opposed to assertions of fact, are deemed privileged and no matter how offensive, cannot be the subject of an action for libel or slander. This is because a statement of opinion is not an assertion of fact that can be proven false, and falsity is a required element of a defamation claim. Statements of opinion are also protected by the First Amendment's guarantee of freedom of speech. Distinguishing fact from opinion is not always easy. Courts need to examine whether the specific language has a precise meaning, whether the statements are capable of being proven true or false, and whether the context in which the communication was made affects the meaning of the statement.

Statements expressed in factual language but which would not be reasonably understood as an assertion of fact are not actionable. Rhetorical hyperbole, for example, is generally not interpreted literally, and therefore cannot support a defamation action. For example, defamation cases have been dismissed in Virginia where a talk show host said a government contractor had employees in Iraq who were "all over the country, killing people," and where a newspaper article referred to a university official as the "Director of Butt Licking." These statements were not literally true, but could not reasonably be understood as conveying actual facts. Other examples include parody, gross exaggeration, sarcasm, and irony.

Conversely, statements expressed in language suggesting mere opinion may nevertheless be treated as implied statements of fact if the statement suggests the speaker's opinion is based on the speaker's knowledge of undisclosed facts. Such statements may be actionable not because they convey "false opinions," but rather because a reasonable listener or reader would infer 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. In other words, a statement of opinion that is based on undisclosed facts is potentially actionable because it carries with it an implicit statement of those facts.

Statements that are only partially false may not be sufficient to support a claim of libel or slander. If an allegedly defamatory statement is substantially true, it will usually be enough to defeat a defamation action. Substantial truth turns on the understanding of the reasonable listener or reader. In general, a statement is substantially true if the statement would not have a different effect on the mind of the reader from that which the complete truth would have produced. In other words, it is not necessary to demonstrate complete accuracy to defeat a charge of defamation. It is only necessary that the gist or substance of the challenged statements be true.

Celebrities, politicians, and other public figures have a higher burden in defamation actions. The First Amendment requires that in defamation actions brought by public figures, the plaintiff must prove that the allegedly defamatory statement was made with "actual malice," meaning that it was made "with knowledge that it was false or with reckless disregard of whether it was false or not." Hatfill v. The New York Times Co., 532 F.3d 312, 317 (4th Cir. 2008). Where a statement on a matter of public concern expresses or reasonably implies false and defamatory facts regarding public figures or officials, those individuals must show that such statements were made with knowledge of their false implications or with reckless disregard of their truth.

Virginia defamation law is vast and complex. For more information, or to discuss the application of the law to a particular set of facts, consult a defamation attorney.

How to Lose Your Defamation Case in Three Easy Steps

December 5, 2012,

First, don't hire a lawyer. (What do lawyers know about defamation law, anyway?) Second, refuse to comply with the court's orders and local rules. Finally, file a whole bunch of frivolous and nonsensical motions, such as a "Motion for Declaration All Rulings & Judgments Be Rendered Null & Void," a motion against opposing counsel for engaging in "felonious conspirator tactics," and a "Motion to Declare All Your Base Are Belong to Us." With the exception of the "all your base" example, a defendant recently tried all of these tactics in North Carolina federal court and came away with a judgment against him that included punitive damages.

William Mann, a member of the Professional Golfers Association Hall of Fame, acquired a North Carolina country club but then declared bankruptcy and moved to South Carolina. M. Dale Swiggett sent a letter to hundreds of recipients accusing Mann of fraud and crimes and claiming Mann left North Carolina after declaring bankruptcy and paid cash for his South Carolina house. Swiggett then sent a letter to the judge who had presided over Mann's bankruptcy, accusing Mann of covering up "sludge spreading and spills."

Mann sued Swiggett in the Eastern District of North Carolina for libel, seeking $2 million in compensatory damages and $2 million in punitive damages for injury to his reputation and livelihood. Swiggett, acting pro se, responded by overloading the court's docket with numerous groundless motions, inducing the court to strike his Answer as a sanction. After entering summary judgment in Mann's favor, the only remaining issue was the amount of damages.

Even in a libel per se case like this one, a plaintiff must present sufficient evidence to support an award of compensatory damages. Speculative damages are not recoverable.

The Court found that while Mann demonstrated inconvenience and embarrassment, he failed to present sufficient evidence of damage to reputation, loss of enjoyment of life, or mental suffering. Although Mann feared losing his job and said he missed out on consulting work, his job remained intact and he failed to show actual consulting opportunities he'd lost. The Court, therefore, awarded only $100.00 in compensatory damages. Still, the Court awarded $25,000 in punitive damages in light of the "reprehensibility" of Swiggett's behavior.

Fraud Accusations Prompt Michael Mann's Lawyers to Threaten Litigation

September 3, 2012,

Climate change scientist Dr. Michael Mann is threatening legal action against the National Review magazine for a blog post that appeared in "The Corner" section of its online publication. In the article, journalist Mark Steyn quoted writer Rand Simberg's observation that Dr. Mann "could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data..." Mr. Steyn went on to call Mann "the man behind the fraudulent climate-change 'hockey stick' graph, the very ringmaster of the tree-ring circus."

In a demand letter to the National Review, Dr. Mann's attorney, John Williams, contends that Mr. Steyn's statements amount to accusations of academic fraud and constitute defamation per se. He argues that the statements were false and were made with the knowledge that they were false. He cites several inquiries into his research which concluded that he has not engaged in academic fraud as proof that Mr. Steyn's statements are false. Dr. Mann demands that the National Review retract the article and apologize or face legal action.

Dr. Mann may have a valid complaint, but he is going to have his work cut out for him. Dr. Mann is a well-known, much published and often quoted figure in the climate change debate. In fact, Dr. Mann has written a book on the climate change controversy. Courts have held that scientists who inject themselves into public controversies over scientific and political debates are public figures. As a public figure, Dr. Mann would have to prove by clear and convincing evidence that the National Review published a provably false statement with knowledge that it was false or with reckless disregard of whether it was false or not.

His lawyers are also going to have to convince a judge that the use of the term "fraudulent," in the context of the article, should be treated as an assertion of fact rather than subjective opinion. The court could plausibly rule either way on this issue. Mr. Steyn's piece was commentary on a highly debatable topic - climate change - and a controversial graph - the "hockey stick" graph which depicts changes in the Earth's temperature from the year 1000 onward. In an effort to encourage the free exchange of ideas, courts have allowed the press much leeway when writing about public controversies, and the difference of opinion over the science behind climate change is the type of debate that the First Amendment protects. Great scientific minds can reasonably disagree where the climate change debate is concerned.

While the court might indeed find that the term was used to suggest Dr. Mann engaged in academic fraud, it might conceivably find instead that the statement would more reasonably be interpreted as a protected expression of opinion. Moreover, if the court considers the "fraudulent" characterization to be rhetorical hyperbole, rather than an assertion of literal fact, it will dismiss the claim.

It is rarely easy for a public figure to prevail in a defamation case, especially when the statements at issue relate to matters of public concern. At a minimum, if Dr. Mann decides to file suit, it will at least bring more attention to the climate-change debate.

Doctor's Defamation Claim Reconsidered by Judge Roush

August 13, 2012,

Judge Jane Marum Roush of the Fairfax Circuit Court has allowed Dr. Adel Kebaish to amend his complaint against Inova Fairfax Hospital to include four additional statements claimed to be defamatory. Judge Roush had previously found the alleged statements non-actionable but was persuaded by the plaintiff's attorneys to partially reconsider her earlier ruling.

Dr. Kebaish was an orthopedic and spine trauma surgeon at Inova Fairfax Hospital. Dr. Kebaish claims that Inova and several of its doctors and physician assistants defamed him and that Inova terminated him for objecting to substandard care and fraudulent billing practices. He filed a complaint against Inova, one of its administrators and ten of its doctors and physician assistants alleging causes of action for defamation per se as well as other business torts. The defendants demurred on various grounds.

The court reviewed each of the allegedly defamatory statements in the complaint and agreed with Inova that most of the statements were either statements of opinion, not actionable as defamation, or made by persons who were not named as defendants. To successfully state a claim for defamation in Virginia, a plaintiff must show that the ER.jpgdefendant published a false factual statement that harms the plaintiff or the plaintiff's reputation. Expressions of opinion are constitutionally protected and are not actionable as defamation.

The court initially sustained the demurrer to the defamation claim except as to two alleged statements: (1) that Dr. Kebaish had once operated on a patient with a "do not resuscitate" order without the family's consent; and (2) that Dr. Kebaish's privileges at Inova's emergency room had been revoked. Dr. Kebaish moved the court to reconsider its ruling as to the other statements.

Upon reconsideration, the court found that four additional allegations were statements of fact that, if proven to have been made and proven to be false, may be defamatory: (1) a doctor's statement that Dr. Kebaish turned away Medicaid patients; (2) a defendant's statement that Dr. Kebaish had caused a sciatic nerve injury to a patient treated for pelvic fracture and was hiding this fact; (3) a defendant's statement to an investigator for the Virginia Board of Medicine that Dr. Kebaish had operated on patients without taking x-rays, had caused complications, and had missed fractures on patients; and (4) a defendant's statement to potential patients that Dr. Kabaish's "hands shake."

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.

Defamation Per Se By Former Judge Yields $350,000 in Damages

March 21, 2012,

Earlier this month, the Virginia Supreme Court affirmed the decision of the Williamsburg Circuit Court to uphold a jury verdict against former circuit court judge Verbena Askew in the amount of $350,000 for defamation. Askew had made a comment to The Daily Press that plaintiff Brenda Collins, who had worked in the court over which then-judge Askew presided, "was institutionalized - that's the only way you qualify for family leave." The Daily Press did not actually publish the statement, but the Court found that the defamation occurred when the statement was made to the press.

A private individual claiming defamation must prove by a preponderance of the evidence (1) that the defamatory publication is false and (2) that the defendant "either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief or acted negligently in failing to ascertain the facts on which the publication was based." If the publication amounts to defamation per se, such as defamatory statements that impute an unfitness to perform official duties, the plaintiff is presumptively entitled to compensatory damages.

Askew first argued that she should not have to pay damages because her statement about Collins was never published by The Daily Press and thus did not proximately cause any injury to Collins. The Virginia Supreme Court rejected this argument, holding that theWburgCt.jpg evidence supported the jury's finding that Askew made a defamatory statement to the press either knowing it was false or negligently failing to ascertain the facts. Because the jury found the statement amounted to per se defamation, it was entitled to presume that Collins suffered damages as a result, regardless of whether The Daily Press republished the statement.

The court also rejected Askew's argument that the verdict should be reduced by the amount of a settlement with other defendants. The court pointed out that Section 8.01-35.1(A)(1) of the Virginia Code only provides for such an offset when two or more defendants are liable for the same injury. In this case, Askew was found liable for the injury caused by her own statement, not by any injury caused by her co-defendants.

Libel Per Se? Libel Per Quod? Neither, Says Virginia Court

March 14, 2012,

Professional Timothy B. Hanks is a professional tax preparer who took offense at a television segment aired by WAVY Channel 10 in the Hampton Roads area that promised to inform viewers "how to avoid unscrupulous tax preparers," then proceeded to tell a story involving an admitted mistake made by his company, Reliable Tax & Financial Services. Hanks sued the station for libel, libel per se, and libel per quod, seeking five million dollars in damages. Judge Doumar (Norfolk) rejected all three theories and, last month, dismissed the entire case with prejudice.

Libel per se and libel per quod are variations of a defamation cause of action. Under Virginia law, a claim for libel per se may exist for certain categories of defamatory statements deemed serious enough to warrant presumed damages. This includes statements such as those accusing a plaintiff of committing a crime involving "moral turpitude," of being infected with a contagious disease, or, more commonly, of being unfit to perform the duties of his profession. Libel per quod, on the other hand, refers to statements the defamatory nature of which is not readily apparent, but which are understood by the recipient to be of a defamatory nature in light of extrinsic facts known by that person.

Hanks claimed the "unscrupulous" remark constituted defamation per se in that it imputed to him "an unfitness to perform the duties of office or employment for profit, a lack of integrity in the discharge of duties of such office, and the commission of a criminal Taxes.jpgoffense." The court disagreed for several reasons, holding that the statements (1) are not "of or concerning" Hanks, (2) are not capable of defamatory construction, and (3) are constitutionally-protected opinion. The court also found that Hanks failed to sufficiently plead actual malice or special damages.

First, the court pointed out that Hanks failed to explain why he was suing personally, rather than Reliable Tax, the company mentioned in the broadcast. Rather than dismiss the case for lack of standing, however, the court took judicial notice of the fact that Hanks was the president of Reliable Tax and proceeded to address the merits.

The court found that Hanks failed to show that the statement about "unscrupulous tax preparers" as a class was directed at him. Hanks never pleaded any facts to show how he was personally affected by this story or that it would be plausible for viewers to know that the story was about Hanks merely from the reference to tax preparers as a class.

The court also ruled that the term "unscrupulous" was not of a defamatory nature in that it was broad, unfocused, and constituted wholly subjective opinion. It did not, as Hanks argued, imply criminal behavior.