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The Benefits of Apologizing for Libel or Slander

October 22, 2014,

Suppose you've spoken your mind about someone you don't like and have been accused of defamation. Should you apologize? If you intentionally defamed the character of another person out of ill will or spite, you're probably not going to want to apologize. But if you've either had a change of heart or a sudden realization that you're about to get sued, there are some good reasons to say you're sorry.

For one thing, apologizing--if done right--can mitigate the plaintiff's damages. Plaintiffs who sue for libel or slander in Virginia aren't just limited to recovery of out-of-pocket pecuniary losses; they can also recover damages for pure emotional distress. Even without proof of actual reputational harm, Virginia courts have allowed plaintiffs to recover compensation for mental anguish, embarrassment, and humiliation. In essence, the worse the plaintiff feels, the higher the potential for a large damages award. In the business world, studies of disgruntled customers have shown that they are more than twice as likely to forgive a company that performs poorly but then apologizes than one that offers payment in lieu of an apology. It stands to reason, then, that a plaintiff's emotional distress will likely be diminished if you make a sincere, timely apology, and publish that apology to the same group to whom you made the defamatory remarks.

Continue reading "The Benefits of Apologizing for Libel or Slander " »

"Actual Malice" Is Not Actually Malice

September 9, 2013,

Where an otherwise defamatory statement is subject to a qualified privilege, a plaintiff can overcome that privilege by showing that the defendant acted with actual malice. However, "actual malice" in the context of a defamation action--also known as "New York Times malice," is a different concept than the common-law malice ordinarily required to support an award of punitive damages. A speaker acts with actual malice when he knows that his statement is false or acts with reckless disregard as to its truth. Mere dislike of the plaintiff is not sufficient to indicate a speaker acted with actual malice.

The distinction was explained last month in the Texas case of Tyson v. Austin Eating Disorders Partners, LLC. Edward Tyson worked for Austin Eating Disorders Partners (AED) as medical director of AED's Austin eating disorder treatment center. After Tyson was removed from his position, he asked his accountant to inquire about AED's improved financials. Mark McCallum, CFO of AED, responded to the inquiry with an email to Tyson, AED's Board of Directors, AED's attorney, and AED's accountant stating that AED's financials had improved because Tyson had been a bad medical director who had no idea how to run the treatment center and took kickbacks for referring patients to other facilities. In a Second Amended Complaint asserting various defamation theories, Tyson conceded that McCallum's email was subject to a qualified privilege, but argued that he overcame the privilege by alleging that McCallum acted with actual malice. AED and McCallum moved to dismiss the claim.

The court noted that actual malice is shown where a statement is made with knowledge that it is false or with reckless disregard as to its truth. Actual malice is not the same as ill will. The key to an actual malice showing, the court held, is evidence that the speaker knew or had reason to know that his statements were false.

Tyson's Second Amended Complaint failed to allege facts showing that McCallum made any of the statements in the email with knowledge that they were false or with reckless disregard of their truth. Instead, Tyson attempted to not equal.jpgshow that McCallum disliked Tyson and acted with animus towards him. The court held that such allegations were insufficient to show actual malice because, as controlling case law has made clear, actual malice and evil intent are two different things. The court went on to note that although evidence of ill will may support an allegation of malice, ill will alone is not sufficient.

Moreover, merely showing that the statement is false or that the speaker failed to investigate the truth or falsity of the statement is not enough to show actual malice, nor is mere negligence sufficient. Rather, a plaintiff must show that the defendant entertained serious doubts as to the truth of his statements. Here, Tyson failed to allege facts showing that McCallum knew or had reason to know that any of his statements were false or had serious doubts about the truth of his statements and therefore did not overcome the qualified privilege.

In short, although the actual malice inquiry requires consideration of the state of mind of the speaker, the relevant state of mind is whether the speaker knew or had reason to believe the statement was false, not whether the speaker harbors ill will towards the plaintiff. Because Tyson failed to overcome the qualified privilege, the court granted defendants' Motion to Dismiss. The court further dismissed Tyson's claims with prejudice as he had amended his pleading multiple times without being able to plead any facts in support of actual malice.

Reliance on Responsible Source Negates Actual Malice

August 26, 2013,

When a defamatory statement is made about a public figure, a plaintiff must prove that the statement was published with actual malice, i.e. with knowledge that the statement was false or with reckless disregard of whether it was false or not. Mere proof that a defendant failed to investigate the truth of a statement is not enough to show actual malice, and where a defendant relies on a responsible source in making a statement, he has not been grossly negligent, much less malicious. However, evidence of intent to avoid the truth can be sufficient to satisfy the actual malice standard. The Second Circuit recently addressed these issues in Dongguk University v. Yale University.

When Shin Jeong-ah applied for a position as an art history professor at the prestigious Dongguk University in South Korea, she stated that she held a Ph.D. from Yale University in Art History, and she submitted a document on Yale University letterhead that purported to be a certification of her degree. The certification contained an exact reproduction of Yale Associate Dean Pamela Schirmeister's signature but misspelled the name and also misspelled the word "century" in Shin's listed concentration - Twentieth Century Art. Nevertheless, Dongguk hired Shin and sent Yale an Inquiry Letter with the certification attached seeking to verify its authenticity. Dean Schirmeister received the letter and responded via fax "confirming that the attached letter [the certification] was issued by the Yale Graduate School and signed by me."

Two years later, Dongguk became suspicious that Shin may have plagiarized her dissertation. An investigation revealed that Yale had no record of the dissertation and that in fact Shin had not received a Ph.D. from Yale. The Korean press latched on to the story, and Yale's Deputy Counsel Susan Carney and Dean Edward Barnaby began referring all Shin-related media inquiries to its Office of Public Affairs.

Dongguk's President, Youngkyo Oh, wrote Yale's President, Richard Levin, noting the contradictory answers Dongguk had received from Yale as to whether Shin held a Ph.D. from Yale. Oh attached Schirmeister's fax validating Shin's certification and asked Levin to confirm whether Shin had or had not received a Ph.D. from Yale. Yale.jpgCarney and Barnaby responded to the letter, expressing concern about the fax and indicating that it contained "indicia of authenticity." They did not ask Schirmeister if she had sent the fax but instead asked the Yale Police Department to look into the matter, suspecting that Shin had an accomplice at Yale who may have sent the fax. Carney responded to Oh's letter confirming that Shin was never a Yale student and that the certification and Schirmeister fax were not authentic. Carney indicated Yale would continue to investigate the matter.

In responding to media inquiries, Yale's Office of Public Affairs Assistant Director Gila Reinstein denied (1) the authenticity of the Schirmeister fax, (2) that Yale issued any document purporting to support Shin's Yale degree, and (3) that Yale ever received the Inquiry Letter. Dongguk contends that Reinstein's statements to the press were defamatory.

Dongguk eventually filed a criminal complaint against Shin. The U.S. Attorney's Office subpoenaed answers from Yale which prompted Yale's Associate General Counsel to investigate whether Yale had in fact received the Inquiry Letter. Eventually, the Yale mailroom confirmed receipt of the letter and its delivery to the graduate school. Schirmeister's assistant found the Inquiry Letter along with the responsive fax. Carney wrote President Oh to correct her misstatements regarding the Schirmeister fax and stated that it was indeed authentic.

Dongguk filed a complaint against Yale alleging defamation among other claims. The District Court initially allowed the defamation claim to go forward, but upon reconsideration entered summary judgment for Yale on all counts. Dongguk appealed.

The defamation claim was evaluated under the common law of Connecticut, which closely resembles Virginia defamation law. Dongguk was required to prove that Yale was responsible for the publication of a defamatory statement, identifying Dongguk to a third person, and that Dongguk suffered injury as a result of the statement. And because Dongguk was a "public figure," it was also required to prove that Yale published the statement with actual malice.

The Second Circuit affirmed the dismissal of the claim. The court reasoned that mere proof of failure to investigate is not enough to establish reckless disregard of the truth. Where statements are based on reliable sources, a defendant cannot be accused of gross negligence, much less actual malice. While evidence of intent to avoid the truth can be sufficient to constitute malice, there was no such evidence in this case.

Dongguk argued that Carney's statements expressing concern about the fax and its apparent receipt in the Dean's office and the fact that she initiated a police investigation indicate that she had serious doubts as to the truth of Reinstein's statements to the press. Accordingly, because Carney failed to investigate the truthfulness the statements, Dongguk contended that she acted with actual malice. The court disagreed.

Throughout the investigation, Carney noted her skepticism about whether the fax was manufactured yet failed to investigate its authenticity. However, failure to investigate does not establish actual malice without something more. Here, the court found that there was nothing more. Although the failure to discover a misstatement may demonstrate negligence, it does not establish actual malice. Dongguk had no evidence that Carney entertained serious doubts as to the truth of the statements or that her decision not to investigate further constituted purposeful avoidance of the truth.

Dongguk also argued that Yale's failure to retract its statements when it learned they were false established actual malice. The court noted that the actual malice inquiry considers the state of mind of the defendant at the time the statement was made. The failure to correct an earlier misstatement may be relevant to the actual malice inquiry but only where there is some evidence of actual malice at the time the statements were made. Here, there was no such evidence. None of the speakers involved were aware of the probable falsity of the statements when they were made, and Dongguk provided no evidence that anyone at Yale acted with improper motives.

The court held that Dongguk failed to present any evidence that any individual at Yale who was responsible for publication of a defamatory statement acted with actual malice. Therefore, it affirmed the district court's grant of summary judgment in Yale's favor on the defamation claim.

Mann's Defamation Suit Survives Anti-SLAPP Motion

July 29, 2013,

Well-known climate scientist Michael Mann made good on his threat to sue the National Review and columnist Mark Steyn for defamation based on statements made online questioning Mann's global warming research. In response, the defendants filed a special motion to dismiss under D.C.'s anti-SLAPP statute, arguing that the online statements were made in furtherance of the right of advocacy on an issue of public interest. The court found that the anti-SLAPP statute did apply but nevertheless denied the motion.

Mann is a professor of meteorology and the Director of the Early System Science Center at Penn State. He is well known for his research on global warming and has published papers and books on the subject. The University of East Anglia's Climate Research Unit (CRU) exchanged emails with Mann which were later misappropriated. In one email, a CRU scientist referred to Mann's "nature trick" of adding in real temperatures for the last twenty years and from 1961 to "hide the decline." Upon discovery of the emails, the University of East Anglia investigated the matter and concluded that the honesty and rigor of the CRU scientists was not in doubt but that the email referencing Mann's "nature trick" was misleading.

In 2010, Penn State initiated an investigation of Mann and the CRU emails. The investigatory committee was comprised entirely of Penn State faculty members. Based on an interview with Mann, the committee cleared Mann of three of four charges against him. The last charge involved an allegation that Mann's research might deviate Mann.jpgfrom accepted norms. The committee interviewed an MIT professor who was critical of Mann's work and later expressed dismay with the scope of the investigation and the committee's analysis of the CRU emails.

At the same time, in response to pressure from the National Review, Steyn and others, the EPA investigated Mann and found no evidence of scientific misconduct. The National Science Foundation also investigated Mann's work and found that Penn State had not adequately reviewed the allegations and failed to interview critics of Mann's work

Two years later, Penn State was in headlines due to the Jerry Sandusky scandal. FBI Director Louis Freeh concluded that the university had failed to properly investigate allegations of misconduct when they arose and suggested that it should undertake a thorough and honest review of its culture which seemed to value the avoidance of bad publicity and its consequences above all else.

The National Review seized on the Sandusky scandal and published Steyn's article "Football and Hockey" on its website in a section called "The Corner." The piece contained an excerpt from and a link to a post by Rand Simberg on OpenMarket.org entitled "The Other Scandal in Unhappy Valley" which compared the Sandusky scandal and the university's failure to handle the matter properly with its investigation into Mann's work. Steyn agreed that Simberg had a point but admitted he might not have "extended the metaphor all the way into the locker-room showers" with quite the zeal Simberg did. Steyn also stated that Mann was the man behind the "fraudulent climate-change hockey stick graph, the very ringmaster of the tree-ring circus," and he concluded by noting the similarities between Penn State's investigation of Sandusky and Mann and questioning its handling of both matters.

Mann demanded a retraction and apology for the accusations of academic fraud. In response, the National Review asserted that the term "fraudulent" was used to mean "intellectually bogus and wrong" rather than criminally fraudulent.

Mann sued in D.C. Superior Court, alleging libel and intentional infliction of emotional distress against the National Review, Steyn, Simberg and the owner of OpenMarket.com, Competitive Enterprise Institute. His complaint was based on the statements that (1) Mann had engaged in data manipulation and scientific misconduct and was the "poster-boy of the corrupt and disgraced climate science echo chamber," (2) Mann was the man behind the "fraudulent climate-change hockey stick graph, the very ringmaster of the tree-ring circus," and (3) Mann's work was intellectually bogus.

The National Review and Steyn moved to dismiss under both D.C.'s Anti-SLAPP Act and Federal Rule of Civil Procedure 12(b)(6). The defendants argued that their comments are protected by the First Amendment and that the Anti-SLAPP Act applies because Mann's claims stem from statements made in a public forum that discusses issues of public interest, i.e., climate change and global warming. Mann asserted that the Anti-SLAPP Act was enacted to deter large private interests from bringing meritless suits to deter common citizens from exercising their political or legal rights and was not intended to apply to cases such as this. The court found that because the defendants' comments were made with respect to climate issues which are environmental issues and issues of public interest, and were made in publications that were available to the public, the Anti-SLAPP Act applies.

The Anti-SLAPP Act provides that if a party filing a special motion to dismiss makes a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, then the court will grant the motion unless the responding party shows that the claim is "likely to succeed on the merits." The parties disagreed on the level of proof this standard requires. The defendants asserted that "likely" poses a higher burden than "probability," which is the term used in the corresponding California statue upon which the D.C. statute is based. Mann argued that there is no difference between "likely" and probability." The court turned to Black's Law Dictionary which defines the "likelihood of success on the merits test" in the context of a preliminary injunction as requiring the litigant to show "a reasonable probability of success in the litigation." The California statute requires the plaintiff to show a "probability of prevailing on the claim by making a prima facie showing of facts that would, if proved, support a judgment in the plaintiff's favor." The court held that the standard is similar to that used on a motion for judgment as a matter of law and that Mann must present a sufficient legal basis for his claims in order to survive the anti-SLAPP motion.

The defendants argued that Mann would be unable to make a prima facie case for libel because he could not prove the actual malice required where plaintiff is a public figure. They also argued that Mann would be unable to prove the falsity of the statements because the statements were ones of opinion. Mann countered that he could demonstrate actual malice by showing that the defendants entertained serious doubts as to the truth of the statements or acted with a high degree of awareness that the statements were probably false. He argued that the statements were false and defamatory per se and that the defendants made them with knowledge of their falsity or with reckless disregard of the truth. He contended that whether he engaged in fraud is verifiable by analyzing the elements of fraud or considering the investigations conducted regarding his research.

On the issue of malice, the court found that sufficient evidence existed to show at least reckless disregard of truth or falsity, as Mann had been investigated several times, at least once due to the defendants' accusations, and his research has been found to be accurate. The court held that where the defendants consistently claim that Mann's work is inaccurate despite being proven accurate, then there is a strong probability that the defendants disregarded the falsity of their statements and did so with reckless disregard. Although the evidence was not yet sufficient to show clear and convincing evidence of actual malice, the court found sufficient evidence to necessitate further discovery on the matter.

Regarding the fact vs. opinion question, the court noted that opinions may be actionable if they imply a provably false fact or rely upon stated facts that are provably false. To determine whether a statement is actionable opinion, a court must examine the context of the statement. The court found that the statements at issue here questioned facts rather than simply inviting readers to ask questions. The court held that, given the definition of fraud and the common readers' interpretation of the words "fraud" and "fraudulent," the statements were more than brutally honest commentary. The court held that the assertions of fraud rely upon facts that are provably false in light of the fact that Mann has been investigated and his research and conclusions determined to be sound. Evidence indicated that the defendants' statements were not pure opinion but rather were statements based on provably false facts.

The defendants also argued that the statements were rhetorical hyperbole - witty and obvious exaggeration-- which is protected under the First Amendment, and that the statements criticized Mann's work and ideas rather than Mann himself and thus cannot be defamatory. The court found that, when considered in the context of all of the comments and accusations made over the years and the "constant" requests for investigations of Mann's work, the statements appear more as factual assertions.

Finally, the defendants argued that their statements were protected by D.C.'s fair comment privilege, which protects opinions based on facts that are well known to readers. To take advantage of this privilege, a defendant must show that the publication was fair and accurate and that the publication properly attributed the statement to the official source. Here, the court found that the accusations of fraud were provably false as several reputable bodies had found his work sound. Thus, the court held that the fair comment privilege did not apply.

For these reasons, the court denied the motions to dismiss and lifted the discovery stay.

Proving Malice in Defamation-By-Implication Cases

April 2, 2013,

In ordinary defamation cases, proving malice is a straightforward affair because the statement at issue is only capable of being understood in a defamatory sense and the only question is whether the speaker knew the statement was false (or acted with reckless disregard to its falsity). Conversely, in defamation-by-implication cases, the allegedly defamatory statement has two possible meanings: one that is defamatory and one that is not. This complicates the malice inquiry because the speaker may or may not have intended to imply the defamatory meaning.

Recently, the Third Circuit had the opportunity to consider (1) whether the actual malice standard applies differently in defamation-by-implication cases such that more than knowledge of falsity or reckless disregard for truth is required and (2) if the standard is different, can a plaintiff can satisfy the actual malice standard by showing defendant's mere awareness of a defamatory implication and reckless disregard of that implication or whether plaintiff must show actual intent to convey a defamatory meaning.

The Third Circuit agreed with several other circuits that plaintiffs in defamation-by-implication cases must show something beyond knowledge of, or recklessness in regard to, the FALSITY of the statement's defamatory


meaning. Plaintiff must show that defendant acted with improper motive. In ordinary defamation cases, plaintiff can show intent to defame solely through knowledge that the statement was false. In defamation-by-implication cases where the statement can have a non-defamatory meaning, showing falsity alone is inadequate to establish intent to defame. In these cases, plaintiff must show something that establishes defendants' intent to communicate the defamatory meaning.

The Third Circuit apparently breaks down the malice requirement into two elements in defamation by implication cases, separating out a falsity element with a "communicative intent" element. According to the court, the falsity element refers to the extent to which a defendant must be aware that the defamatory meaning of his statement is false, and the communicative-intent element refers to the extent to which defendants must be aware of the defamatory meaning of their statement.

To me, that sounds like an unnecessarily confusing way to describe the malice test. After all, if a defendant was aware the defamatory meaning was false, then he necessarily knew the defamatory meaning existed. The test makes more sense if you examine communicative intent first. Thus, in defamation-by-implication cases, falsity shouldn't even come into play until a threshold determination has been made that the defendant intended to communicate a statement with defamatory meaning (or, as this court held, at least knew the statement was capable of being understood in a defamatory sense).

The court held that a plaintiff can show communicative intent by demonstrating that the defendant either intended to communicate that defamatory meaning or knew of the defamatory meaning and acted in reckless disregard of it. The court found that this approach follows from the Supreme Court's inclusion of recklessness in the actual malice standard. The Supreme Court has noted that actual malice is a term of art, a shorthand phrase used to describe the First Amendment protections for speech injurious to reputation. The Court has described reckless disregard as the line between protected false communications and unprotected false communications. The Third Circuit found that recklessness is the outer limit of actual malice and that the communicative intent element of actual malice in defamation-by-implication cases can be satisfied by reckless disregard for the defamatory meaning of a statement.

Other circuits also support this approach, stating that to find actual malice in defamation-by-implication cases, the plaintiff must show that defendants intended or knew of the implication that the plaintiff attempts to draw from the allegedly defamatory material. The Third Circuit interpreted the phrase "knew of" to imply recklessness and used the term "recklessness" in its own standard believing that it conforms more closely to the Supreme Court's definition of actual malice. The court found that recklessness requires that the defendants knew that the defamatory meaning was not just possibly but likely and still made the statement despite the knowledge of that likelihood.

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.

Absence of Malice Presumed in Employment Context

January 9, 2013,

Emmett Jafari sued the Greater Richmond Transit Company for defamation and retaliation under the Fair Labor Standards Act. Jafari was a Specialized Transportation Field Supervisor for a Virginia company that transported clients enrolled in a state economic program. John Rush, a GRTC driver, told Jafari's Chief Operating Officer, Eldridge Coles, that (1) he had seen Jafari in a heated discussion with a client in front of her home and (2) when the client boarded the van, she said Jafari had told her, "If you have something to say, say it to my face." Coles allegedly told Jafari's supervisor, Von Tisdale, "a customer had complained that Mr. Jafari told her 'if you have something to say, say it to my face.'" When Jafari was later fired, he sued, alleging Coles' statement to Von Tisdale was defamatory.

In Virginia, defamation requires (1) a publication, (2) an actionable false statement, and (3) negligence or malicious intent (depending on the circumstances). Statements made between co-employees and employers in matters pertaining to employee discipline and termination enjoy a qualified privilege, which insulates those statements from liability unless they are made with malice or shared with people (including fellow employees) who have no duty or interest in the subject matter. If a defendant makes a statement within the scope of a qualified privilege, then the statement is not actionable, even if false or based on erroneous information. The law presumes absence of malice.

To defeat this privilege, Jafari had to show, with "clear and convincing" evidence, the statements met the common law malice requirement, i.e., that they were said with "some sinister or corrupt motive such as hatred, revenge, personal spite, ill will, or desire to injure the plaintiff; or ... made with such gross indifference and recklessness as AbsenceOfMalice21.jpegto amount to a wanton or willful disregard of the rights of the plaintiff." This he could not do, so the court entered summary judgment in favor of the employer.

Jafari claimed Coles' motivations included racial animosity and the desire to humiliate him and that Coles set out to solicit negative information about him from others. Weighing the submissions under summary judgment standards, the Court found Jafari's claims did not demonstrate malice. Coles and Von Tisdale were supervisors with a duty to monitor and manage employee performance and Coles had only repeated the information to others in Jafari's supervisory chain with similar monitoring and management duties. These people were protected by qualified immunity.

Statements Based on Undisputed Facts Cannot Be Made With Actual Malice

November 29, 2012,

Attorney Ephraim Ugwuonye filed a defamation action against Omoyele Sowore, founder of Saharareporters.com, based on articles appearing on that website. Having previously been found in another case to be a public figure, Ugwuonye was required to demonstrate by clear and convincing evidence that the statements at issue were (1) defamatory; (2) false; and (3) made with actual malice. Public figures are required to prove that the defendant published a false statement with actual knowledge of its falsity or with reckless disregard for its truth. In this particular case, Mr. Ugwuonye was unable to meet that burden and the court entered summary judgment in favor of Mr. Sowore.

The statements at issue concerned real estate transactions in which Ugwuonye represented the Nigerian Embassy. The article claimed that Ugwuonye withheld the Embassy's $1.5 million IRS tax refund due from the sales because the Nigerian government owed him legal fees for representation in other litigation. The article also commented on past professional misconduct proceedings against Ugwuonye and referred to Ugwuonye's "professional shadiness."

The court found that prior to writing the article, Sowore investigated public records, researched cases involving Ugwuonye and also spoke to Ugwuonye by phone. Ugwuonye admitted that he withheld the tax refund as a fee to compensate him for legal work. The court found that statements that were not disputed could not have been Generic gavel.jpgmade with actual malice. Additionally, Ugwuonye did not submit any evidence that the statement regarding Ugwuonye's past professional misconduct proceeding was made with actual malice, and because the statement was substantially accurate, he could not overcome the qualified privilege for fair and substantially accurate reports on legal proceedings. Finally, Ugwuonye did not offer evidence that the reference to "professional shadiness" was done with actual malice, and it also amounted to non-actionable opinion and privileged reporting.

In a footnote, the court held that summary judgment could be entered against Ugwuonye simply because he failed to serve timely responses to requests for admissions. Those discovery requests sought admissions that the statements were substantially true and made without malice. Under Federal Rule of Civil Procedure 36, failing to respond to admission requests by the applicable deadline results in the matters in question being deemed admitted.

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.

Slander of Pilot by Airline Results in $1.4 Million in Damages

April 14, 2012,

Workplace defamation suits can result in high damages awards. A former pilot and federal flight deck officer (FFDO), William Hoeper, successfully sued his former employer, Air Wisconsin, for defamation after one of its managers, Patrick Doyle, reported Hoeper to the Transportation Security Administration (TSA) as a potential threat to airline security. Last month, the Supreme Court of Colorado, applying Virginia law, upheld a $1.4 million jury verdict against Air Wisconsin.

Hoeper had been taking a test to fly a new plane. According to test administrators, Hoeper ended the test abruptly, raised his voice at the administrator, and used profanity. Afterwards, while Hoeper was waiting for his flight home, Doyle called TSA to report that Hoeper may be carrying his government-issued FFDO firearm and that he was concerned about Hoeper's mental stability because Hoeper had been terminated that day.

When a plaintiff alleges defamation involving a "matter of public concern," the defendant is entitled to First Amendment free speech protection unless the plaintiff can demonstrate that the statement was false and made with actual malice. Actual malice is present if the statement was made by the defendant with (1) knowledge of the statement's falsity or (2) reckless disregard as to the AW plane.jpgstatement's falsity. However, even before the plaintiff presents his case, an airline defendant may be able to avoid liability altogether under the Aviation and Transportation Security Act (ATSA), which provides immunity from civil suits to "an air carrier who voluntarily discloses any suspicious transaction relevant to certain aircraft security statutes." If the disclosures are made with actual knowledge or reckless disregard as to the statement's falsity, however, ATSA immunity is lost and the plaintiff can proceed to demonstrating that a statement was defamatory.

Holding that Air Wisconsin was liable for defamation, the Colorado Supreme Court first found that the ATSA immunity did not apply to Air Wisconsin because Doyle recklessly disregarded the truth when making his statement about Hoeper to TSA. Specifically, Doyle knew Hoeper had not been terminated that day and he lacked information to form an opinion on Hoeper's mental stability or to imply that Hoeper was armed. The court further pointed out that Doyle could not have been very concerned about Hoeper's mental state because he sent Hoeper to the airport that same day with another Air Wisconsin employee and did not initially write down any of his concerns in his notes. While his statements to the TSA suggested that Hoeper was so unstable that he might pose a threat to security, his actions demonstrated that he did not truly believe that to be the case.

Since Air Wisconsin was not immune to Hoeper's suit, the court went on to apply Virginia state law to find that Doyle made a false statement to TSA with actual malice. Air Wisconsin was therefore liable for damages.

Jeremy Mayfield's Defamation Claims Against NASCAR Heard on Appeal

February 6, 2012,

The Fourth Circuit Court of Appeals is poised to rule on the appeal of NASCAR driver Jeremy Allen Mayfield, who is appealing the dismissal of his case involving claims of defamation, breach of contract, and deceptive trade practices. The trial court had dismissed the case based in large part on contractual release and indemnification provisions, including a release of liability arising from the publication of the results of any substance-abuse test.

Mayfield entered into a written contract with NASCAR in which he agreed to submit to random drug testing. On May 1, 2009, NASCAR asked Mayfield to submit to such a test. He complied and informed David Black, the president of Aegis, the chemical company performing the test, that he had taken Claritin and Adderall just prior to submitting a sample for testing. On May 7, 2009, Mayfield was informed that his test came back positive for amphetamines. After some confusion about the number of samples and whether Aegis tested the correct sample, NASCAR informed Mayfield that he was suspended as a driver and as the owner of a team. The president of NASCAR, Brian France, then held a press conference announcing to the world that Mayfield had been suspended for taking either performance-enhancing or recreational drugs.

After the press conference, Black informed reporters that the positive test result had nothing to do with any over-the-counter medication. As a result of these public statements, Mayfield and his corporate NASCAR team filed suit against NASCAR, NASCAR.jpgFrance, Aegis, and Black, claiming that they were responsible for publicly defaming him. Mayfield argued in the suit that the statements were "intentional, malicious, reckless and false."

The big question the Fourth Circuit will need to address (assuming it gets past the release) is the level of specificity required in a defamation complaint. Plaintiffs argued that Rule 9 of the Federal Rules of Civil Procedure does not specify a heightened pleading standard for defamation claims and that it allows states of mind, including the malice required for a defamation claim, to be pleaded generally, rather than bolstered with specifics. The Fourth Circuit, after all, has ruled that notice pleading applies to defamation actions. Did the trial court short-circuit the case unfairly? Should Mayfield have been given the opportunity to prove his claims at trial? We may soon know what the Fourth Circuit thinks, but the questions may be moot if the release language is enforced as written.

Prominent Defamation Lawyers Pursue Sherrod's Libel Case Against Breitbart

February 19, 2011,

Last summer, United States Department of Agriculture official Shirley Sherrod was forced to resign after conservative activist Andrew Breitbart posted online a speech that she had made 23 years before, when she worked for a nonprofit organization. The video that Breitbart posted supposedly showed that Sherrod, who is African American, had engaged in racial discrimination against a white farmer who needed financial assistance. It soon emerged, however, that the video clip that Breitbart placed online was significantly edited, and that in full context, Sherrod emerged as a supporter of equal opportunity rather than as a racist. After all that background was revealed, President Obama took the unusual step of formally and publicly apologizing to her. She was offered her job back, but she declined the offer. Instead, she hired a team of preeminent defamation attorneys to take Mr. Breitbart to court.

On February 11, 2011, Sherrod filed a defamation suit in D.C. Superior Court against Breitbart and two alleged accomplices, alleging that the depiction of her as a racist had caused her financial losses, physical symptoms, and "irreparable reputation and career damage." Sherrod is seeking compensatory and punitive damages as well as a court order that Breitbart remove the offending material from his blog. Breitbart has not yet formally responded to the lawsuit, but he did say in a statement that he "categorically rejects the transparent effort to chill his constitutionally protected free speech."

Defamation suits against public figures are never easy. The First Amendment has been interpreted by the Supreme Court for several decades to give a very wide berth to people who criticize public officials or discuss matters of public concern. In general, celebrities or other Sherrod.jpgpublic figures who sue for defamation cannot win unless they can show that the defendant made the offending statement with "actual malice," which essentially amounts to knowledge that the defamatory statements were false, or reckless disregard for their truth or falsity.

Sherrod's complaint makes clear that she does, in fact, intend to prove that Breitbart made the defamatory statements with actual malice: either that he knew when he posted the speech online that Sherrod had done nothing racist and that the version he posted was grossly manipulated or distorted, or that he recklessly disregarded that possibility.

For example, she wrote in the complaint that Breitbart and his associates "acted with actual malice, reckless intent and gross indifference to the false and misleading nature of the edited clip posted on his blog and the effects that the posting would have on Mrs. Sherrod." She also wrote that the defendants "acted with actual malice in altering the video -- that is, acted with actual knowledge of the falsity of the speech or reckless disregard of it." Sherrod will have to prove those allegations if she hopes to prevail.

Defamation Lawsuit Exposes Redskins Owner to Ridicule

February 4, 2011,

It doesn't take a defamation expert to see the flaws in the $2 million libel lawsuit filed this week by Redskins owner Dan Snyder against the Washington City Paper. Mr. Snyder took offense at an article titled, "The Cranky Redskins Fan's Guide to Dan Snyder: From A to Z (for Zorn), an Encyclopedia of the Owner's Many Failings," which contains a detailed list of reasons the author considered him a bad owner. Mr. Snyder also disapproved of an image of him, published with the article in question, on which someone had doodled devil horns and a mustache, which Mr. Snyder deemed "an anti-Semitic caricature of himself" which "forced" him to file the lawsuit. Talk about thin skin.

First of all, how ironic is it that Mr. Snyder claims he was forced to bring this lawsuit to protect his reputation and good name, and yet by virtue of suing the newspaper, he has stoked the interest of the media and triggered widespread public scrutiny into his prior activities, vastly increasing the number of people who will seek out and read The Cranky Redskins Fan's Guide to Dan Snyder? Personally, I'm not a regular reader of the Washington City Paper and would never have known about the alleged defamatory statements had Mr. Snyder not called my attention to them by suing the paper. Mr. Snyder and his lawyers have alerted the otherwise complacent populace to a long list of alleged bad acts by the Redskins owner. Even if he wins the case, will he really have done himself and his reputation any favors by suing an outspoken critic?

But he won't win. As I explained in an earlier blog post, not just any hurtful or offensive comment will constitute libel or slander upon which a plaintiff could DevilDoodle.jpgsuccessfully sue for millions of dollars. Defamation liability requires the publication of a false factual statement that concerns and harms the plaintiff or the plaintiff's reputation. Statements of opinion, regardless of how unfavorable the opinion, are not actionable. Thus, calling Mr. Snyder a failure, likening him to the devil, and referring to the "stain" he supposedly left on the Redskins are all constitutionally protected as free speech.

Snyder's lawyers are well aware of that restriction, and therefore focus their allegations on certain statements in the article that could be more easily interpreted as factual allegations. Namely, that "Dan Snyder...got caught forging names as a telemarketer with Snyder Communications;" that he caused Agent Orange to be used to destroy trees "protected by the National Park Service" on "federally protected lands;" that Mr. Snyder bragged that his wealth came from diabetes and cancer victims; and that Mr. Snyder was "tossed off' the Six Flags' board of directors. According to Huffington Post reporter Jason Linkins, these allegations are all demonstrably true or were intended as metaphors with substantial truth to them. If the statements are true, they are not defamatory.

Mr. Snyder has an even higher hurdle to climb if we wants to recover damages against the Washington City Paper: as a widely known public figure, Mr. Snyder will need to prove not only that the article contained false statements, but that the Washington City Paper acted with "constitutional malice": that it knew the statements were false or published the statements with reckless disregard of whether the statements were true or false.

If he fails to prove, with clear and convincing evidence, that the newspaper published false factual statements (not just opinions) about him, and that they did so with malice, he will lose the case. And while losing the case would not necessarily mean that the statements about Mr. Snyder's alleged activities are true, what will public perception be?

Pleading Defamation by an Employer in Virginia Isn't Easy

September 17, 2009,

Getting fired or laid off is hard enough without your boss trashing your reputation to your co-workers. I receive many calls from prospective clients interested in pursuing their former employer for defamation. Virginia employers, however, have a lot of leeway in what they can say about an employee being considered for termination before they will be liable for slander or libel. Virginia recognizes a qualified privilege against defamation claims where statements by an employer are made in connection with discharging that employee. To overcome that privilege, a plaintiff must prove common law malice by clear and convincing evidence.

Consider the recent Hanover County case of Koegler v. Green, decided on September 1, 2009. Carl Koegler sued his former employer, the Richmond-East Moose Lodge, as well as several of his former co-workers and employers, for defamation. The defendants demurred (i.e., moved to dismiss the case), citing the qualified privilege, and the court agreed with them and dismissed the case. The court emphasized that defamation claims against employers in Virginia will not be permitted to go forward absent strong evidence of malice.

The facts, according to the allegations in the complaint, were as follows: Mr. Koegler was employed by the Lodge in various positions over the years. An audit conducted by the international parent company resulted in Mr. Koegler's termination in 2008. Some of Walkaway.jpghis former coworkers and managers talked to other employees about the firing. The acting Governor of the Lodge, for example, held a staff meeting and discussed what had been said in board meetings about Mr. Koegler and that Mr. Koegler had been suspended for stealing money. Another officer of the Lodge sent emails describing Mr Koegler as having "questionable character." Mr. Koegler sued for defamation and harm to his reputation.

The court held that, to state a claim for defamation, the plaintiff would have to allege sufficient facts to enable a reasonable jury to find clear and convincing evidence of "common law malice," defined as "some sinister or corrupt motive such as hatred, revenge, personal spite, ill will, or desire to injure the plaintiff; or what, as a matter of law is equivalent to malice, that the communication was made with such gross indifference and recklessness as to amount to a wanton or willful disregard of the rights of the plaintiff." In the end, the court concluded that Mr. Kroegler had not presented a case sufficient to enable a reasonably jury to find clear and convincing evidence of malice, and dismissed the case.