Actual malice is an important concept in Virginia defamation law. Public figures, public officials, and limited-purpose public figures all must prove that a defamatory publication was made about them with actual malice as part of their case in chief in any defamation action brought on the basis of that publication. Even private plaintiffs often seek to prove actual malice, such as when trying to show that a defendant lost or abused a qualified privilege. As discussed earlier on this blog, “actual malice” in this context means something different than spite or ill will. When a defendant publishes a false and defamatory statement with actual malice, it means the defendant knew the statement was false or, at a minimum, acted with reckless disregard as to truth or falsity. Recklessness amounting to actual malice may be found, for example, where a publisher fabricates an account, makes inherently improbable allegations, relies on a source where there is an obvious reason to doubt its veracity, fails to pursue the most obvious available sources for corroboration, or deliberately ignores evidence that calls into question his published statements.

So how do you prove actual malice? As you might imagine, it’s not very often that the defendant openly admits to intentionally lying. Therefore, most of the time, plaintiffs must resort to indirect and circumstantial evidence to prove their claims. They can do this by using

all the relevant circumstances surrounding the transaction…provided they are not too remote, including threats, prior or subsequent defamations, subsequent statements of the defendant, circumstances indicating the existence of rivalry, ill will, or hostility between the parties, facts tending to show a reckless disregard of the plaintiff’s rights, and, in an action against a newspaper, custom and usage with respect to the treatment of news items of the nature of the one under consideration.

(See Herbert v. Lando, 441 U.S. 153, 164 n.12 (1979) (quoting 50 Am. Jur. 2d Libel and Slander § 455 (1970))). To obtain such evidence in advance of trial, parties may resort to the discovery process, using tools such as interrogatories, requests for production of documents, and third-party document subpoenas.

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The law doesn’t require everyone to be completely honest in all facets of their day-to-day lives. Some lies can form the basis for a legal cause of action for defamation, fraud, business conspiracy, or other claims, but not all lies justify legal action. Some lies are more harmful than others. If someone has lied about you to other people and you are considering whether to sue for defamation, ask yourself this: has your reputation really been affected? If nobody cares about the factual error, or they respond to it with a “so what?” or a shoulder shrug, there’s a good chance the misrepresentation would not be considered defamatory by a Virginia judge.

To be considered legally actionable as libel or slander, a false statement must really sting. Meaningless insults are insufficient. Minor misrepresentations that can be easily shrugged off are insufficient. False statements about you that no one (but you) considers important are not going to cut it. What the court will be looking for are statements with defamatory meaning. Statements meeting this test are those that would tend to cause a person to be shunned from civilized society. They are statements that would tend to cause people to not want to have any personal or business dealings with the subject of the statement. People who have been legitimately defamed are those who have been exposed to public scorn and contempt as a result of false information circulating about them.

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In Virginia, injunctions are considered an extraordinary remedy and, due to First Amendment concerns, are generally not available to enjoin a person from speaking. Known as “prior restraints,” injunctions against defamatory speech are disfavored and bear a heavy presumption against validity. The Supreme Court has written that “a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them…beforehand.” (See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975)). There are exceptions, however, such as (a) when a defendant’s defamatory speech was uttered in connection with the commission of a separate tort, (b) when a defendant engages in repeated defamation, or (c) when the speech has already been adjudicated to be defamatory.

Although neither the Virginia Supreme Court nor the Fourth Circuit has had the opportunity to consider whether a prevailing defamation plaintiff may obtain an injunction prohibiting the defendant from repeating the speech adjudicated to be defamatory, most courts around the country approve of the practice, reasoning that any other rule “would make an impecunious defamer undeterrable.” (McCarthy v. Fuller, 810 F.3d 456, 462 (7th Cir. 2015)). Earlier this year, the Eastern District of Virginia followed the trend and granted an injunction to restrain the defendant from repeating certain statements held to be defamatory.

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When filing a defamation lawsuit against an individual, you need to select a court that has personal jurisdiction over the defendant. A Virginia court doesn’t necessarily have the authority to adjudicate a case against a resident of another state with no connections to Virginia. To determine whether a court has personal jurisdiction over a particular defendant, look first to Virginia’s “long-arm statute” to see whether any of its provisions apply. (The long-arm statute is so named because it lists the circumstances under which Virginia can extend a “long arm” to grab a resident of another state and hale him into a Virginia courtroom). If the long-arm statute does apply, the court must next ensure that exercising personal jurisdiction over that defendant would not violate the Due Process Clause of the United States Constitution. This generally means that to acquire personal jurisdiction over a non-resident defendant in a defamation case, the defendant must have purposefully directed his defamatory statement to a Virginia audience. Absent such purposeful activity, the court would likely find that haling the person into Virginia would offend “traditional notions of fair play and substantial justice,” and would therefore be unconstitutional.

To determine whether specific jurisdiction exists in a particular case, relevant considerations include:

  1. the extent to which the defendant purposefully availed himself of the privilege of conducting activities in Virginia;
  2. whether the plaintiff’s claims arise out of those activities directed at Virginia; and
  3. whether the exercise of personal jurisdiction would be constitutionally reasonable.

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In Virginia, the right of the media to report freely and fairly on the operations of the government is sacrosanct. Reporters and news organizations that report on government activities are shielded from defamation claims by a “fair report privilege” that applies so long as the publication is a “fair and substantially correct statement of the transcript of the record.” (See Alexandria Gazette Corp. v. West, 198 Va. 154 (1956)). The privilege protects “press reports of official actions or proceedings, so long as the report was accurate and either complete or fairly abridged.” (See Chapin v. Knight-Ridder, Inc., 993 F.3d 1087, 1097 (4th Cir. 1993)). Everyone has a right of access to public records, and the fair report privilege makes it easier for the media to communicate the information contained therein to the public so that the government can be held accountable.

Some courts view the fair report privilege or “reporter’s privilege” as an exception to the republication rule. Normally, a person who repeats a defamatory statement is liable for republishing it, just as if he or she were the original speaker. Where a reporter repeats a defamatory statement made at a proceeding covered by the fair report privilege, however, no republication liability will attach provided the report is a fair characterization of what was originally said. If a media account of a government proceeding is fair and accurate, the publisher will be protected even if statements made at the proceeding and repeated in the publication were false and defamatory.

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As often repeated on this blog, the expression of an opinion is protected by the First Amendment and cannot form the basis of a defamation claim. “It is firmly established that pure expressions of opinion are protected by both the First Amendment to the Federal Constitution and Article I, Section 12 of the Constitution of Virginia and, therefore, cannot form the basis of a defamation action.” (See Williams v. Garraghty, 249 Va. 224, 233 (1995)). What’s an opinion? Generally speaking, it’s a relative statement told from the speaker’s personal perspective that isn’t susceptible of being proven true or false. It’s a statement that can’t reasonably be interpreted as conveying actual facts about a person. If a jury instruction is worded in such a way as to allow for the possibility that the jury will find a defendant liable for defamation based on a statement of opinion, that verdict will likely be set aside or reversed. People are entitled to their opinions, no matter how negative or disparaging they might be; you can’t go around suing everyone who criticizes you (not successfully, anyway) unless that criticism includes defamatory falsehoods in addition to the negative opinions being expressed.

It isn’t always easy to distinguish statements of fact from statements of opinion, and lawyers get this wrong all the time. The latest decision of the Virginia Supreme Court to deal with this issue is the case of Amanda C. Padula-Wilson v. Scott David Landry, decided May 14, 2020. The plaintiff was a mother of three children involved in custody and visitation proceedings. When the custody hearing didn’t go as she had hoped, she sued one of the therapists for defamation. (She brought numerous other claims as well in a complaint containing 276 numbered paragraphs, but those claims are outside the scope of this blog). The trial court dismissed the claim, finding that the therapist’s statement was protected by both qualified privilege and absolute judicial privilege. The Virginia Supreme Court granted an appeal, but ultimately agreed with the trial court that the claim was not actionable and affirmed the dismissal.

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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.

Defamation per se is not a separate tort. The tort is called defamation, and defamation per se is just a particular type of defamation. Lawyers get this wrong all the time, assuming erroneously that any statement that, say, imputes to the plaintiff an unfitness to perform the duties of a job or a lack of integrity in the performance of those duties, automatically qualifies for a multi-million-dollar defamation-per-se case. Did a co-worker tell your boss that you engaged in unprofessional or unethical conduct? Sure, a statement like that might be designed to convey that you are unfit to perform the functions of your job, but it takes more than that to bring a valid claim for defamation per se.

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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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