The Virginia statute of limitations for defamation claims states that “every action for injury resulting from libel, slander, insulting words, or defamation shall be brought within one year after the cause of action accrues.” (See Va. Code § 8.01-247.1). A defamation cause of action “accrues” when the defamatory acts occurred, which is generally the date the defamatory statements were communicated to a third party. Some plaintiffs have tried to file defamation actions after the one-year period has expired (i.e., over a year after the accrual date) by arguing that the statute of limitations should be extended because the defendant engaged in a continuous, ongoing defamation campaign that isn’t really capable of being measured by any particular date. This theory has been successful in getting around statutes of limitations governing breach-of-contract cases against doctors and lawyers, but as a recent federal case confirms, it doesn’t apply to defamation claims.

The theory has been described variously as the “continuous tort rule,” the “continuing wrong doctrine,” the “continuing violation doctrine,” and the “continuous undertaking rule.” Regardless of what you call it, the idea is that a court can consider acts occurring outside the limitations period if there is a “fixed and continuing practice” of unlawful acts both before and during the limitations period. (See Commonwealth ex rel. Fair Hous. Bd. v. Windsor Plaza Condo. Ass’n, Inc., 289 Va. 34, 65 (2014)). Under this rule, “where there is an undertaking which requires a continuation of services, the statute of limitations does not begin to run until the termination of the undertaking.” (Harris v. K & K Ins. Agency, 249 Va. 157, 161 (1995)). The rule postpones the accrual date “with respect to a particular undertaking or transaction” and applies “only when a continuous or recurring course of professional services relating to a particular undertaking is shown to have taken place over a period of time.” (Moonlight Enters., LLC v. Mroz, 293 Va. 224, 230 (2017)).

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Some defamation cases are so lacking in merit that a defendant can pick and choose among multiple grounds for dismissal. Virginia’s anti-SLAPP statute, for example, is designed to provide a remedy for defendants who are sued for exercising their First Amendment rights while speaking on matters of public concern. A demurrer, on the other hand, allows a defendant to challenge the legal sufficiency of the plaintiff’s complaint in situations where the complaint fails to present a valid claim even if one assumes all the plaintiff’s allegations are true. The anti-SLAPP statute authorizes an award of attorney fees to a prevailing defendant; a successful demurrant may succeed in getting the case dismissed but will generally not be entitled to recovery of legal fees. Virginia defense lawyers often struggle with the strategic decision of which dispositive motion to file and argue first to maximize the likelihood of both a dismissal and an award of legal fees. In a decision of the Virginia Court of Appeals released earlier this week, the court offered some guidance, ruling that even if a demurrer is argued first and sustained, a pending anti-SLAPP motion will not become moot and fees may still be awarded if the statement at issue is covered by the statute.

The case is Jamie Allen Harless v. Kenneth E. Nicely and the facts are straightforward: a high school football coach was not pleased with the way his behavior was characterized by four employees of Roanoke County Public Schools who had written various reports and other statements about his conduct during a football game with a competing high school. The school principal had issued a report describing how she investigated an incident and determined that Coach Harless had called a student on the opposing team a “fucking dirty player” and uttered various other profanities. The complaint alleges she added her own commentary to the report, writing for example that “Mr. Harless acted in a racist manner unfit to coach when he intentionally targeted two WBHS players because they were Black.” The complaint also takes issue with various statements accusing him of unsportsmanlike recruiting methods that violate Virginia High School League policies.

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As noted previously on this blog, if an employer falsely suggests to others that an employee was fired for cause when, in truth, the employee quit the job voluntarily, the employer may be liable for defamation. Similarly, when news outlets report on the separation of public figures from their places of employment, they need to be careful with the words they use. Nobody wants to open a newspaper and encounter a story about how they were forcibly removed from a position they voluntarily quit, leaving readers with the false impression that some sort of misconduct occurred. A recent Virginia case involved a news story reporting that a school superintendent was “ousted.” In examining whether a term like this could support a defamation action, the court relied primarily on dictionary definitions.

In Sroufe v. Scripps Media, Inc., Dr. William D. Sroufe, the former superintendent of Colonial Heights Public Schools, took issue with a news story that aired in February 2023 on WTVR/CBS6. The broadcast allegedly misrepresented the circumstances of his departure from the school system. According to the report, Sroufe was “ousted” due to allegedly covering up misconduct by a softball coach at the school. This narrative, he asserted, was not only damaging to his reputation but also blatantly false.

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In most cases, it won’t be actionable to call for the resignation of a public official or to question that person’s ethics or professionalism. The First Amendment is intended to protect robust debate over the performance of government officials, and statements like these are generally considered to be non-actionable expressions of opinion. But in situations where criticisms are laden with factual content, such as when they imply the existence of false factual assertions, they may be deemed defamatory and actionable. The Virginia Court of Appeals recently reinstated a previously dismissed defamation claim against a Portsmouth pastor deemed to have crossed this line in his public statements about a local police chief.

The case of Greene v. Portsmouth arises out of the protests surrounding a Confederate statue in Portsmouth, Virginia, in the summer of 2020. A group of protestors had gathered to deface the monument. L. Louise Lucas, a state senator, approached the monument and indicated to the crowd and police that the city manager and mayor had authorized damage to the monument and that no arrests should be made. Lucas allegedly told the crowd, “to hell with City Council, they had three years” and encouraged them to “go cover it” with paint. She assured the crowd they would not be stopped and claimed she had spoken with the city manager, implying that they had permission to act.

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Competing for customers by telling them a competitor is “under investigation” is surprisingly common. I hear this from prospective clients all the time. Most of the time, the accusation isn’t any more specific than that the client is under investigation for something. No one really knows what exactly, but the implication is that if some authority is investigating the client for something–anything–then the client is probably guilty of doing something improper and should be shunned by customers. I suppose one reason this appears to be a fairly common phenomenon is that many think that if they keep the accusation vague enough, and assert only that a competitor is being investigated and hasn’t (yet) been formally found guilty of any specific conduct, then the statements can’t be defamatory. Most courts would disagree with this logic.

A couple of federal cases brought by Grover Gaming, Inc., provide an example of the majority view. Grover is a provider of electronic pull tabs for charitable gaming, a market regulated by the Virginia Department of Agriculture and Consumer Services’ Office of Charitable and Regulatory Programs. Grover is licensed to manufacture and supply these games. In Grover Gaming v. William J. Rice, Grover alleged that Rice (an employee of Powerhouse Gaming, Inc., a competitor of Grover) had been going around claiming that Grover and its employee, Trish Riley, were under “serious state investigation,” which Grover asserted was false. In a parallel case, Grover Gaming v. Rodger Huffman, Grover sued another Powerhouse Gaming employee for essentially saying the same thing, albeit to different customers. “They are under a very serious State Investigation in Virginia!!!!!” Huffman allegedly said. “Be careful dealing with Trish Riley!!! She’s fully involved!!!” Continue reading

Virginia Code § 8.01-223.2, informally known as the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, provides immunity in tort for statements on matters of public concern (subject to certain exceptions not relevant here). I recently had an issue arise in a case that prompted the question of what “that would be protected under the First Amendment” really means in the context of how that phrase is used in the statute, which states in pertinent part as follows:

A person shall be immune from tort liability if the tort claim is based solely on statements (i) regarding matters of public concern that would be protected under the First Amendment to the Constitution of the United States made by that person that are communicated to a third party….

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When public figures bring defamation lawsuits, First Amendment concerns dictate that they must demonstrate “actual malice” as a prerequisite to recovery (See New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964)). This is generally defined as either actual knowledge of falsity or, at a minimum, reckless disregard for the truth. Falsity alone is insufficient to support a defamation claim brought by a public figure; if the defendant had no reason to know that his or her statements about the public figure were false, the defendant will not be liable for defamation. Knowing this, public figures represented by competent counsel are always careful to ensure they allege in their pleadings that the defendant acted with actual malice. More and more, however, Virginia state courts are saying that conclusory allegations of this sort are not enough. To survive a demurrer, the plaintiff must plead facts that, if true, would create a plausible inference of actual malice.

A few days ago, the Court of Appeals of Virginia made this point clear in the case of Tonya D. Chapman v. Jonathan Burkett. Ms. Chapman, a public figure due to her position as Chair of the Virginia Parole Board, filed this complaint against Mr. Burkett and others, alleging they defamed her with a news story that reported on the differences between a 13-page initial draft of an Inspector General report and a heavily redacted 6-page final report. Essentially, Chapman was upset because the story seemed to suggest that the report was heavily edited for political reasons as opposed to a determination that the initial conclusions were false and unfounded. She claimed the article implied that she violated the law and that the reporter acted with actual malice in that he knew this implication was false.

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

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

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To be actionable as defamation in Virginia, the words used must be more harmful to a person’s reputation than a common insult or an accusation that most people would consider harmless or unimportant in evaluating a person’s character. Defamatory words are those which “tend so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” (See Bryant-Shannon v. Hampton Roads Cmty. Action Program, Inc., 299 Va. 579, 585 (2021)). But who, exactly, is this “community”? Who are these third persons in whose eyes defamatory meaning is to be measured? These questions become important when there is a lack of consensus among the general public about whether certain personal characteristics reflect poorly on a person’s character or whether they carry any negative connotations at all. Consider an accusation that another person is gay or transgender. If these statements are false, has the person’s reputation been lowered in the estimation of the community? Clearly, the answer depends on whom you ask. As to how the courts are dealing with this issue, a consensus has yet to emerge.

On the one hand, some courts have held that an allegation of homosexuality is defamatory per se because it implies immoral or criminal conduct. Other courts have pointed out that the Supreme Court invalidated sodomy laws with its decision in Lawrence v. Texas and that gay marriage is permitted in all 50 states, concluding that false accusations of homosexuality cannot be considered defamatory. Other courts have expressed concern that to find “gay” defamatory might be interpreted by the public as a validation of anti-gay sentiment. This is what a federal judge in New York had to say after ruling that false imputations of homosexuality are indeed actionable as defamation per se:

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

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

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