In cases of defamation per se in Virginia, successful plaintiffs can recover “presumed” damages even if they are unable to prove exactly how their reputations were harmed and to what extent. For example, defamatory statements that impute to the plaintiff an unfitness to perform the duties of her job would be considered defamatory per se because it is widely understood and accepted that a serious and false accusation about somebody’s ability to perform one’s job would inevitably cause compensable harm. What many don’t realize, however, is that the defamation-per-se categories presuppose that the underlying statement satisfies the elements of actionable defamation. If a statement doesn’t qualify as defamation, then it won’t qualify as defamation per se, even if it seems to fit into one of the per-se categories. If Dave says about Paul, a chef at an upscale restaurant, “Paul is the worst chef in the United States and I wouldn’t feed his disgusting dishes to my worst enemy’s dog,” the fact that the statement suggests Paul is unfit to perform the duties of his job does not make the statement defamatory per se. This particular statement would not be actionable because it reflects only Dave’s personal opinion. Defamation per se is a specific type of actionable defamation, not a substitute for it.

Let’s take a look at the case of Dr. Wendi H. Anderson v. The School Board of Gloucester County, Virginia. Here’s what happened, according to the allegations of the complaint. Dr. Anderson is a teacher at Page Middle School in Gloucester County. She suffers from a “sensitivity [and] allergy to scents, including perfumes and topicals that contain vanilla, cocoa butter, flora/fruits, musks, patchouli (mint), body sprays, lotions and hand sanitizer.” Exposure to these scents allegedly causes her to experience multiple physical reactions, including “pain in the throat and mouth,” “difficulty breathing,” “coughing,” “cognitive dysfunction,” “diarrhea,” “blurry vision,” and “migraines.” Prior to the 2017-18 school year, Dr. Anderson sent the school principal a proposed note to share with parents detailing her various sensitivities and asking students to refrain from wearing products with certain scents. The principal was not crazy about the idea about sharing this information with students or parents. A number of disputes arose relating to the extent the school was willing to go to accommodate Dr. Anderson’s special condition, and at some point the following statements about Dr. Anderson were allegedly made by the principal and/or the school system’s H.R. director:

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Thinking about suing the prosecuting attorney for defamation because the false criminal charges he brought against you damaged your reputation and were ultimately dismissed? Well, don’t. Just like you can’t sue a judge who finds you guilty, you generally can’t sue a prosecutor for maligning your reputation in the course of a criminal prosecution performed in good faith, even if the charges are ultimately dropped or dismissed. Both judges and–though to a lesser extent–prosecutors are immune for their official acts associated with the judicial phase of the criminal process. Statements made by prosecutors outside the scope of their judicial functions, however, are fair game for defamation suits.

Yesterday, the Virginia Supreme Court clarified the law in this area by holding that although a Commonwealth’s Attorney enjoys quasi-judicial immunity for acts taken within the scope of their duties and intimately associated with the judicial phase of the criminal process, this immunity does not extend to statements made by a Commonwealth’s Attorney outside the confines of a judicial proceeding. The court held that a Commonwealth Attorney’s former administrative assistant could pursue a defamation claim against her former boss based on her allegation that he made false public statements about the reasons for her termination. These statements were not made in the course of performing any judicial or quasi-judicial function, so they were not entitled to immunity.

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Most of the attention being paid to Johnny Depp’s defamation suit against Amber Heard has been about the fact he brought it in Virginia rather than in California where both of them live. Most speculate Depp chose Virginia due to the fact its anti-SLAPP law is more hospitable to celebrities and public figures than California’s. He has already been rewarded with a ruling permitting the case to remain in Virginia even if all potential witnesses and evidence are located in California. If that ruling wasn’t enough to lead to the supposition that this case is destined to be decided by the Virginia Supreme Court rather than the Circuit Court of Fairfax County, we now have another interesting ruling in an area in which there’s not a lot of controlling precedent: what it takes to “republish” a defamatory statement and thereby re-start the running of the one-year statute of limitations. That last time Virginia saw a controversial ruling involving the republication doctrine was in Eramo v. Rolling Stone, which was settled shortly after it was appealed. If I had to guess, I would predict that the next Virginia Supreme Court opinion dealing with republication is going to be Depp v. Heard (or, rather, Heard v. Depp).

For those not already aware, Johnny Depp is suing his ex-wife, actress Amber Heard, for an op-ed she wrote for The Washington Post at the end of 2018. The article, entitled “Amber Heard: I spoke up against sexual violence—and faced our culture’s wrath. That has to change,” does not identify Depp by name but, according to Depp, nevertheless implied to readers that Depp is a domestic abuser. In particular, he took issue with the following statements: (1) “I spoke up against sexual violence—and faced our culture’s wrath.” (2) “Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.” (3) “I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.” and (4) “I write this as a woman who had to change my phone number weekly because I was getting death threats. For months, I rarely left my apartment, and when I did, I was pursued by camera drones and photographers on foot, on motorcycles and in cars. Tabloid outlets that posted pictures of me spun them in a negative light. I felt as though I was on trial in the court of public opinion—and my life and livelihood depended on myriad judgments far beyond my control.” The Fairfax County Circuit Court held that with the exception of statement #4, these statements were sufficient to imply to readers that Depp is a domestic abuser, considering the couple’s highly publicized divorce in 2016. Key to this conclusion was the court’s determination that the 2018 op-ed amounted to a republication of Heard’s direct accusations against Depp back in 2016.

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Under the single-publication rule, a defamatory statement posted online will be treated as a single publication, made at the time of posting, regardless of when and how many people actually view the content. Without such a rule, Virginia’s one-year statute of limitations would be rendered meaningless, because a new cause of action would arise each time a new person clicked a link leading to defamatory content, even if that were to occur 10 or 20 years from the date the material was originally uploaded. At the same time, however, Virginia law imposes liability against those who “republish” a defamatory statement, even if republication occurs after the statute of limitations has run on the original statement. When pursuing libel remedies for a statement uploaded to the internet over a year ago, consider whether the statement has been republished by anyone within the past 12 months.

This approach was tried, albeit without success, by the plaintiff in Svetlana Lokhova v. Stefan A. Halper. Ms. Lokhova is a Russian-born British historian and author whose work has focused on the Soviet intelligence service. She had some contact with former National Security Adviser Michael Flynn back in 2014–minimal contact, according to the complaint. She says she met him briefly at a dinner in England and exchanged only a few emails afterwards. Various press accounts in 2017 noted that certain individuals had expressed concern upon learning that the head of the Defense Intelligence Agency appeared to have a friendly relationship with a Russian woman with alleged ties to Russian intelligence–surmising among other things that such a connection could make Flynn susceptible to extortion. One example cited in the complaint is this passage from a New York Times article:

The informant also had contacts with Mr. Flynn, the retired Army general who was Mr. Trump’s first national security adviser. The two met in February 2014, when Mr. Flynn was running the Defense Intelligence Agency and attended the Cambridge Intelligence Seminar, an academic forum for former spies and researchers that meets a few times a year. According to people familiar with Mr. Flynn’s visit to the intelligence seminar, the source was alarmed by the general’s apparent closeness with a Russian woman who was also in attendance. The concern was strong enough that it prompted another person to pass on a warning to the American authorities that Mr. Flynn could be compromised by Russian intelligence, according to two people familiar with the matter.

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In Virginia, employers can fire their employees for any reason or no reason at all, subject to certain limited exceptions. Employers aren’t required to articulate a reason for letting go an employee (see Johnston v. William E. Wood & Assocs., 292 Va. 222, 225 (2016)), but they often do anyway. As you might expect, the employees getting fired don’t always agree with the reasons being offered for the termination. A common response of disgruntled employees is to sue their former employer not only for wrongful termination but for defamation as well, theorizing that their reputation was harmed as the result of false accusations made about them. This approach rarely succeeds.

In a ruling from earlier this month, a federal court threw out an employee’s defamation claim based primarily on two concepts: lack of publication, and qualified privilege. Publication refers to the requirement that an actionable statement be transmitted to some third person so as to be heard and understood by such person. Qualified privilege refers to the special protection afforded to defamatory statements made in certain contexts (like the context of a performance review or exit interview).

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

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

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Even without winking and nudging, defamatory statements can be communicated by innuendo just as clearly as they can by express statements. If you’re going to publish a “hit piece” about another person designed to damage that person’s reputation, you can’t escape defamation liability simply by being careful not to state directly what you are unambiguously expressing indirectly. Libel through innuendo does not enjoy any greater protection under the First Amendment than blatant libel. Defamation may be implied when an author intends for his audience to “read between the lines” while being careful not to make an express statement that is literally false.

I’ve written about defamation by implication before, but one case I haven’t yet covered is Steven D. Parker v. Lancaster County School Board, pending in the Richmond Division of the Eastern District of Virginia. The basic facts, according to the November 4th opinion, are essentially as follows. Dr. Parker is the former Superintendent of Lancaster County Public Schools. He claims he received consistently excellent performance reviews during his tenure. Towards the end of his contract, the School Board Chair instructed Dr. Parker to hire more African-American administrators, even if they were less qualified than white applicants. Dr. Parker pushed back against this idea as he considered it an ill-advised “race-based hiring quota.” The School Board ultimately decided not to renew Dr. Parker’s contract, for reasons Dr. Parker alleges have to do with his refusal to provide preferential treatment to unqualified African-American job applicants and his participation in a racial-harassment investigation into one of the Board members.

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To be actionable in Virginia, defamatory statements must be about the person who is filing the lawsuit. A plaintiff can’t successfully bring a defamation action based on a false statement that doesn’t expressly or impliedly refer to him or her, and in a manner clear enough to communicate that reference to others. This is the “of and concerning” element that every action for libel or slander requires. When the false statement at issue concerns a group of people rather than an individual, a question arises as to whether the group’s members have been defamed. The general rule is that statements that broadly malign an organization as a whole do not necessarily defame the organization’s individual members. However, when the organization is small enough, the small-group theory postulates that a defamatory statement about the small group could be reasonably expected to harm the reputations of every individual member, whether or not they are identified in the statement, and that such statements should be treated as “of and concerning” each individual group member.

If a statement’s “language…is directed towards a comparatively small or restricted group of persons, then any member thereof may sue.” (See Ewell v. Boutwell, 138 Va. 402, 410 (1924)). How small does the group have to be to qualify for the small-group exception to the of-and-concerning requirement? That’s anyone’s guess. Courts around the country typically apply the doctrine to groups of up to around 25-50 members, but each case is going to be different. Courts will look to factors such as the size of the group, whether the statement attacks the group as a whole or some subset thereof, and whether the group is prominent in the community in which the statement was published. The key issue is whether a reasonable person hearing the defamatory statement about the group would likely interpret it as referring to all its individual members.

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As I wrote on this blog last month, if a trial judge gives the jury faulty instructions in a defamation case regarding liability issues, the parties are entitled to a new trial. Juries are there to weigh evidence and determine the facts, not decide what the law should be. Today, I’m writing about the appropriate remedy when a jury awards the plaintiff an outrageously large sum of monetary damages after having been instructed properly regarding the law. Sometimes juries will understand what the trial judge has asked them to do but for reasons such as passion, prejudice, sympathy, or simply because of a rush to reach a consensus and go home, decide to award an amount of money having no bearing on the injuries actually suffered. When this happens, the unlucky defendant can ask for remittitur.

“Remittitur” is a process by which the trial court orders a new trial unless the plaintiff accepts a reduction in an excessive jury award. Compensatory damages must bear a reasonable relationship to the damages disclosed by the evidence. Although a judge may not arbitrarily substitute her opinion for that of the jury, she has both the power and the duty to correct a verdict so excessive as to “shock the conscience” of the court. (See Hogan v. Carter, 226 Va. 361, 372 (1983)). Under Virginia Code § 8.01-383.1, a trial court may give the plaintiff the option of remittitur of the excessive verdict in lieu of a new trial, permitting him or her to accept judgment for a reduced sum. In setting this reduced amount, the court should consider factors in evidence relevant to a reasoned evaluation of the damages, and set the damages at an amount that bears a “reasonable relation to the damages disclosed by the evidence.” (See Bassett Furniture, 216 Va. 897, 911-12 (1976)).

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

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

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