The Virginia Defamation Law Blog

Makini R. Chaka is an owner of Remy Enterprise Group, LLC ("Remy"), an entity that arranges and coordinates logistics for celebrity appearances at public and private events. When Remy arranges a celebrity appearance, either the venue or the celebrity pays Remy a portion of the fee paid to the celebrity. Remy's clients include professional athletes, music recording artists and other well-known entertainers.

According to a new lawsuit filed in District of Columbia federal court, Washington Redskin tight end Frederick Davis has described Chaka as a "madam" and "pimpette" who procures prostitutes for professional athletes. In her Complaint, Chaka contends that Davis also insinuated that she is violent, dishonest and an extortionist. Chaka claims that Davis said as much to Chaka's clients and potential clients, and has sued him for defamation, invasion of privacy, tortious interference with contract and intentional infliction of emotional distress.

To falsely identify someone as a "madam" or "pimp" may be defamatory, but much will depend on the precise words used and the context in which the statement was made. Not long ago, motorcycle stuntman Evel Knievel sued ESPN when they published a picture of him with his arms around two women (one of whom was his wife) and the caption, "Evel Knievel proves that you're never too old to be a pimp." Evel claimed the caption was defamatory because he was not actually soliciting prostitution and his wife was not a prostitute. The Ninth Circuit held that the statement was not actionable, based primarily on the fact it was published on an extreme sports website full of lighthearted, jocular content targeted at a youthful audience. In other words, the court found that a reasonable reader would likely not interpret the "pimp" statement literally.

In this case, Chaka doesn't identify the complete statement or the context in which it was made. She alleges only that "In 2012, Davis [and his bodyguard] repeatedly told third parties that Chaka is a "madam" and "pimpette" who procures prostitutes for professional athletes." Without more, it is difficult to tell how a reasonable listener would interpret those statements and whether this case is likely to withstand a motion to dismiss.

Chaka asserts that her good name and reputation are crucial to Remy's ability to maintain current and secure new clients. She claims that Davis was aware of some of the clients and venues with which Remy had ongoing business relationships, and that publication of the allegedly defamatory statements to these clients resulted in the cancellation of contracts and have harmed Remy's reputation and business.

According to Chaka, Davis acted maliciously in making the statements, knowing them to be false. The news media published the statements in print, on the radio, on television and on the Internet. At Chaka's request, most of the media outlets stopped publishing the statements. Chaka asserts that publication of these statements harmed her reputation and that of her company, holding them up to public ridicule and contempt and deterring others from associating with them. Chaka contends Remy earned over $60,000 annually before the published statements but less than $30,000 since the statements were published. Chaka and Remy seek damages for lost income and profits, damage to reputation, and emotional distress.

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 made 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.

Statements made in the course of litigation by parties to the case are absolutely privileged and cannot form the basis of a defamation action. At the same time, reporters enjoy a "fair report" privilege that allows them to report and comment on judicial proceedings without fear of defamation liability, even if they repeat the allegedly defamatory statements in their coverage of the case, provided the report is a fair and accurate description of the case. Does it follow, then, that a litigant can make defamatory comments to a reporter during the course of a case? Most courts would answer that in the negative, since the reporter is not involved in the case. But if that litigant is speaking about an issue of public interest, such as the operation of the District's financial office, his comments may be protected by D.C.'s anti-SLAPP act.

Eric Payne, former contracting director for the District of Columbia, sued D.C.'s Chief Financial Officer, Natwar Gandhi, for wrongful termination. In an interview with The Washington Post, Gandhi claimed that he fired Payne because he was "a very poor manager," "nasty to people," and "rude to outsiders." Payne then sued Gandhi and the District of Columbia alleging that these remarks defamed him. The city has indicated that it plans to file a special motion to dismiss the case under the city's anti-SLAPP statute.

A "SLAPP" (or Strategic Lawsuit Against Public Participation) can exist in many forms but traditionally consists of a frivolous lawsuit filed by one side of a public debate against someone who has exercised the right of free speech to express an opposing viewpoint. The anti-SLAPP statute was enacted primarily to protect citizen activists from these lawsuits filed for intimidation purposes, but can be applied in any situation where the lawsuit threatens the right of advocacy on issues of public interest.

Since the statute is relatively new, only a handful of suits have tested the anti-SLAPP statute. A D.C. firefighter filed a libel claim against a television station which aired a report about the firefighter's high overtime earnings. The court granted the station's anti-SLAPP motion to dismiss. Several federal litigants have invoked the statute, and the courts have thus far found that the law does not apply in federal court. Other cases have been settled before the anti-SLAPP claims were decided. In another case, television host Rachel Maddow invoked the statute to dismiss a claim filed by a Christian rock artist against her and MSNBC. Although a Superior Court judge granted the motion, the plaintiff is attempting to remove the case to federal court where the anti-SLAPP statute might not apply.

Payne will be unable to continue with discovery in his case while the anti-SLAPP motion is pending, and if the city prevails, Payne could be liable for the city's legal fees.

Former Georgia State Director for Rural Development, Shirley Sherrod, filed a defamation action in the United States District Court for the District of Columbia against bloggers Andrew Breitbart and Larry O'Connor based on a blog post allegedly portraying her as racist. The court denied defendants' special motion to dismiss under D.C.'s anti-SLAPP Act. Defendants appealed, and the case is now pending before the United States Court of Appeals for the District of Columbia Circuit

The district court cited three reasons for its dismissal. First, it found that entertaining defendants' motion would require retroactive application of the anti-SLAPP statute as Sherrod filed her complaint on February 11, 2011 and the D.C. anti-SLAPP Act did not become effective until March 31, 2011. Typically, only statutes that are purely procedural in nature can be applied retroactively, and the court held that the Act is substantive (or has substantive consequences). Defendants argue that whether the statute only applies to actions filed after its effective date is an issue of first impression, and summary disposition of a case of first impression involving a newly enacted statue that protects important First Amendment rights is not appropriate.

The district court found that even if the statute were purely procedural, the Erie doctrine, which requires federal courts sitting in diversity to apply state substantive law and federal procedural law, bars its application in federal court. Finally, the district court held that even if defendants could show that the statute is both retroactive and applicable in federal court, the plain language of the statute bars the motion to dismiss--the statute provides that a party may file a special motion to dismiss within 45 days after service of the claim, and here, the motion was filed more than two weeks after the 45 days had passed.

Another issue on appeal will be whether the court of appeals has jurisdiction to consider the appeal as a collateral order. In general, courts only have jurisdiction over final judgments, but the collateral order doctrine allows parties to appeal a narrow class of decisions that resolve important questions. Citing case law, defendants contend that the First, Fifth and Ninth Circuits have considered this issue and, of five substantive opinions, four hold that the denial of an anti-SLAPP motion to dismiss is immediately appealable. Further, defendants argue that the Supreme Court and the District of Columbia Circuit have applied the collateral order doctrine where a defendant seeks an appeal to vindicate rights of high value such as ones embodied in the Constitution. Defendants contend that because the case involves constitutionally protected free speech regarding public figures and issues of public importance, the court should exercise jurisdiction over the appeal.

Libel and slander claims depend to a large extent on whom the plaintiff targeted with the allegedly defamatory statement. Defamatory words may not support a cause of action unless they directly or inferentially refer to the plaintiff--this has come to be known as the "of and concerning" test. The defamation case filed against former Governor Eliot Spitzer and Slate Magazine Slate for a column Mr. Spitzer wrote in 2010 about an insurance bid-rigging scandal was recently dismissed by a New York court on the ground that the article did not sufficiently identify the plaintiff--a former insurance executive at Marsh & McLennan--as the subject of the statements.

William Gilman's work for Marsh included negotiating "contingent commissions"--fees paid by insurers to insurance brokers who place insurance business with the insurer. As attorney general, Spitzer took the position that Marsh's use of such commissions was illegal. A lawsuit ensued and Gilman was convicted of one count of restraint of trade and competition. While Gilman's appeal was pending, the trial judge vacated his conviction because exculpatory evidence had not been disclosed during trial. Spitzer wrote an article published on Slate.com in response to a Wall Street Journal article criticizing his handling of the Marsh case. Gilman brought a claim for defamation against Spitzer and Slate based on statements in Spitzer's article.

Gilman's defamation claim was based on (1) a reference to "the many employees of Marsh who have been convicted and sentenced to jail terms" and (2) the statement that Marsh's employees "pocketed ... increased fees and kickbacks." Defendants argued that neither of the challenged statements was "of and concerning" Gilman and therefore could not be defamatory.

Whether a statement is "of and concerning" the plaintiff is a question of law for the court to determine at the pleading stage, considering the challenged words in context and giving the language a natural reading. Because Gilman was not mentioned by name in the article, in order to be defamatory, the language must be such that persons reading it would understand that it refers to Gilman. Gilman argued that a reasonable reader would understand the statement to be about him based on preceding sentences referring to the dismissal of two cases after conviction. The court disagreed and found that no reasonable reader of the entire passage would come away thinking both that Gilman's case was dismissed after conviction and that he was convicted and jailed on those charges.

Regarding the statement that Marsh's employees "pocketed ... increased fees and kickbacks," the court noted that statements which refer to an organization do not implicate its members. Gilman argued that the article's preceding references to the two dismissed cases sufficiently tied him to the statement, but the court found that if anything, the preceding sentences tended to weaken any inference to Gilman. The court also rejected Gilman's attempt to characterize the challenged statement as referring to only 20 individuals who were subject to prosecution. Courts have allowed defamation claims to proceed where a statement referred generally to a group numbering 25 people or fewer, but the court here found the argument unsupported by the language which referred broadly to "Marsh" and "its employees" rather than to a subset of employees who were subject to prosecution. Finding that the allegedly defamatory statements could not be reasonably interpreted to be "of and concerning" Gilman, the court dismissed the defamation claims.

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.

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

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

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

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

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

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

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

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

Julie Anne Smith and her family attended Beaverton Grace Bible Church for over two years. When the church dismissed one of its employees for "subversive conduct," the Smith family sought meetings with the Pastor and Elders to discuss the situation because they felt the termination was handled poorly. During the meetings, the Smiths and church officials discussed church policies and governance. Later, an elder informed Mrs. Smith that she must "recant" or her entire family would no longer be welcome at the church. The Smiths stopped attending the church.

Mrs. Smith later learned that Oregon authorities were investigating allegations of child molestation by a teenage member of the church whom she had seen in the child care area. The Pastor and Elders came unannounced to the Smith home demanding to know whether the Smiths knew who had reported the abuse. The Pastor informed the Smiths that they were "excommunicated."

Mrs. Smith began posting comments about the church under Google's "reviews" of the church. Congregants, former congregants, and the Pastor also posted comments, and the dialogue about church governance and doctrine continued. The Pastor removed many postings, so Mrs. Smith began her own blog, Beaverton Grace Bible Church Survivors, where she continued making and encouraging comments.

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

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

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

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

Christian minister and hard-rocker Bradlee Dean and his non-profit foundation, You Can Run But You Cannot Hide International (YCR), brought a defamation suit against liberal talk show host and commentator Rachel Maddow for comments Maddow made on The Rachel Maddow Show. Maddow is hitting back hard, filing a motion to dismiss under the District of Columbia's relatively new anti-SLAPP Act. If Maddow's motion is successful, Dean's defamation case will not only be dismissed with prejudice, but Maddow will be entitled to recovery of her attorneys' fees.

The complaint alleges that Maddow disparaged Dean's physical appearance, first name, profession, and standing in the community and represented that he and YCR advocate the execution of homosexuals. In her commentary (excerpted below), Maddow mentioned that Dean denied having called for the execution of homosexuals, but Dean and YCR contend that Maddow did so begrudgingly and in a way that suggested their denial was disingenuous.

Dean charges Maddow with referring to him as a "bloodthirsty" individual calling for the "upping of the bloodshed in America's culture wars," and accusing him of advocating the use of foreign enemies against America because Christians "aren't doing the job by killing gays and lesbians." According to the plaintiffs, Maddow's comments proliferated in the media and led to Dean receiving Internet death threats from gay activists. The plaintiffs contend that Maddow made these comments as a liberal member of the media and lesbian activist in order to harm the presidential campaign of Congresswoman Michelle Bachman to whom Maddow linked Mr. Dean and YCR on several occasions.

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

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

This is one to watch...stay tuned.

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.

Shortly after being found "not guilty" of embezzlement by a Loudoun County jury, Deanne "Dee Dee" Hubbard, editor of the Middleburg Eccentric, has filed a defamation action against her chief antagonists, Jack J. Goehring, III, and his wife, Mary Kirk Goehring, in Loudoun County Circuit Court.

For over a decade, Deanne "Dee Dee" Hubbard managed Middleburg, Virginia properties co-owned by Jack Goehring and his wife. She also lived in one of their rental properties with her son and daughter-in-law and she and her daughter rented space in one of the Goehrings' commercial buildings. Ms. Hubbard was responsible for collecting rents from the Goehring properties. When Mr. Goehring discovered several rent checks had found their way into accounts Ms. Hubbard controlled, rather than into his accounts, he urged the Commonwealth Attorney's office to prosecute Hubbard. Ms. Hubbard claimed she'd mistakenly marked the checks for the wrong accounts and set the accounts right as soon as the error was discovered.

Ms. Hubbard was prosecuted on fourteen felony embezzlement charges but was acquitted of all charges. Now, she and several family members have sued Goehring and his wife for waging "a campaign of malicious prosecution, libel, slander, and defamation." The complaint paints Mr. Goehring as a vindictive man intent upon securing the charges against Ms. Hubbard and ratcheting up the surrounding publicity so as to defame and humiliate her. It accuses Goehring of filing an affidavit with the Middleburg Bank accusing Hubbard and her family members of identity theft, using his personal identifying information to obtain money, goods, services and other benefits without his authorization. The plaintiffs claim Goehring made false statements to law enforcement authorities that led to Hubbard's arrest, arranged to have a friend photograph Hubbard being taken into custody in handcuffs, and then helped the photographer find a buyer for the photos. Ultimately, the photos appeared on television, in the local paper and on the Internet.

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

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

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

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, France, 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.

Did an Associated Press reporter commit a foul against an NBA referee earlier this year by defaming him on Twitter during a league game? On March 14, 2011, National Basketball Association official Bill Spooner filed a federal defamation case against Associated Press sports beat reporter Jon Krawczynski for a brief item that Krawczynski wrote on his Twitter account that suggested Spooner was officiating a game dishonestly. During an NBA game between the Minnesota Timberwolves and the Houston Rockets on January 24, 2011, Krawczynski tweeted (twote?) that Spooner told Minnesota coach Kurt Rambis after an allegedly bad call against a Minnesota player that Rambis would "get it back," and that Spooner went on to compensate for the incorrect call with a "make-up" call against Houston.

Spooner says that although he had a brief verbal exchange with Rambis about the foul call, he said nothing to the coach about giving anything back to the Timberwolves. His lawsuit, filed in the U.S. District Court for the District of Minnesota, says Krawczynski defamed him by telling Krawczynski's Twitter followers in effect that Spooner had engaged in a "form of game fixing." Spooner discusses in his complaint that the NBA was recently caught up in a controversy involving former ref Tim Donaghy, who pleaded guilty in federal court in 2007 after being accused of betting on games that he officiated.

The NBA itself discouraged the lawsuit, although it doesn't believe Spooner actually cheated either. According to a league spokesman, "We investigated the content of the tweet when it appeared, found it to be without substance, and informed Mr. Spooner that we considered the matter closed. We subsequently advised Mr. Spooner's lawyer that we did not think suing a journalist over an incorrect tweet would be productive."

The lawsuit raises plenty of interesting questions. First, is Spooner a "public figure" for libel purposes, or, alternatively, did Krawczynski's tweet implicate a matter of "public concern"? Spooner's defamation lawyers clearly don't want him to be treated as a public figure, cognizant of the higher hurdles public-figure plaintiffs must overcome in defamation actions. They make a point of stating in the complaint that Spooner "does not grant media interviews" and that he "eschews contact with the public." If the court treats Spooner as a public figure, the First Amendment would protect Krawczynski's statement unless it was made with knowledge that it was false, or with reckless disregard for its truth or falsity.

Did Spooner suffer any harm from the tweet? The NBA says it disregarded the statement. Moreover, Twitter is an ephemeral medium, and Krawczynski had only about 2,000 followers at the time. Was there any measurable damage to Spooner's reputation? Some say the lawsuit is ill-advised due to the lack of harm. But you know what? If what Spooner alleges is true, this is a solid case. Defamation law does not require him to prove actual damage to his reputation. In circumstances such as this, where an allegedly false statement relates directly to a plaintiff's fitness to perform the duties of his job, harm to reputation is presumed and requires no proof.

It's not only basketball fans who will be watching to see how this one turns out.

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 public 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.

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 successfully 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?