Appearances can be deceiving. But in terms of analyzing whether a particular government employee should be treated as a “public official” for purposes of asserting a defamation claim, appearances may make all the difference in whether a plaintiff will be required to show malice or merely negligence. Horne v. WTVR was a case based on a claim of implied defamation that I wrote about back in 2017. As noted in my earlier blog post, the case ended with a directed verdict in favor of WTVR, because the trial court deemed Ms. Horne a public official and found insufficient evidence of malice to justify allowing a jury to consider the claim. Ms. Horne appealed that ruling, and on June 18, 2018, the Fourth Circuit Court of Appeals affirmed. In doing so, it elaborated on what it means to be a “public official” in Virginia.

If the plaintiff in a defamation case is a public official, he cannot “recover[] damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’―that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” (New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964)). This is significant, because private plaintiffs are only required to establish negligence to succeed on a defamation claim–a much lower threshold.

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As I looked over a recent batch of opinions from the Western District of Virginia, one of them caught my eye for two reasons. First, I never imagined that a person might file a federal lawsuit against Golden Corral over an accusation of stealing chicken legs. We truly live in litigious times. Second, the case reminded me of the seldom-invoked “shopkeeper’s privilege” against defamation claims, otherwise known as merchant immunity. I don’t believe I’ve written about it before, so let’s dive in.

Here’s what happened in Leah Wynette Williams v. Lisa Annette Lipscomb, according to the opinion. It was Leah Williams’ daughter’s birthday, so to celebrate, they headed out to Golden Corral along with a sibling and Leah’s mother, Phyllis. They ordered the dinner buffet, for which they paid a fixed price. As they were eating, their server, Lisa Lipscomb, seemed to hover in the general vicinity of their table, sweeping the floor continuously. At one point, the server accused the family of attempting to smuggle food home for future consumption. She warned the family that the restaurant had security cameras, and went to get the manager, telling him that she had seen Phyllis putting chicken legs in her purse. The manager asked to look inside the purse. The family refused. Instead, Leah called 9-1-1, claiming to be “in fear for her family’s lives and safety.” They waited for an officer to arrive, had a brief discussion, and that was essentially the end of the matter. That is, until Leah sued the server, the manager, and the Golden Corral franchisee for defamation and various other claims.

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The Internet is full of morons. If an Internet troll who clearly has no idea what he or she is talking about posts false statements on social media about another person, the effect on the reader is different than if the same statement had been written by an authoritative figure and circulated to the public in a formal news release. Readers would tend to believe the assertions made in the authority figure’s formal statement, and tend to dismiss the troll’s statement as nothing more than meaningless Internet noise. In actions for libel and slander, the perceived knowledgeability and credibility of the speaker plays an important role in the determination of whether defamatory meaning has been conveyed by a particular statement.

The Alex Jones lawsuit comes to mind. Alex Jones is the host of InfoWars and an extremely popular online conspiracy theorist. He has claimed that the 2012 shooting at Sandy Hook Elementary School was an elaborate hoax, complete with adult and child actors, invented by government-backed “gun grabbers.” Many of his followers apparently believed his claims and have been harassing the victims’ families. Recently, several of the families have filed defamation lawsuits against Jones, arguing that he “persistently perpetuated a monstrous, unspeakable lie: that the Sandy Hook shooting was staged, and that the families who lost loved ones that day are actors who faked their relatives’ deaths.”

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If a defendant claims he defamed the plaintiff only because he was “following orders,” acting at the instruction of his boss or other principal, and the evidence supports this, can a defamation claim be brought against the person who gave the order? In a word, yes. If a principal instructs his agent to make a public statement and that statement defames the reputation of another person or entity in a manner that would be actionable under Virginia law, the defamed party’s remedy is not limited to a lawsuit against the individual speaker; he may also pursue a claim against whoever is ultimately responsible the statement having been made.

Vicarious liability principles apply to defamation actions just as they do in tort law generally: the principal is normally liable for the tortious conduct of his agent. (See Mann v. Heckler & Koch Def., Inc., No. 1:08cv611 (JCC), 2008 WL 4551104 at *8 (E.D. Va. Oct. 7, 2008) (denying motion to dismiss defamation claim on basis that employer could be vicariously liable for employee’s defamatory statement); Fuste v. Riverside Healthcare Ass’n, Inc., 265 Va. 127, 134 (2003) (recognizing that defamation liability may be founded upon statements made by an authorized agent)). Corporations, for example, can only act through the conduct of their employees. If an employee commits libel or slander in the course of performing his or her duties for the employer, the employer itself can be held liable for defamation.

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Vicarious liability principles apply to defamation actions just as they do in tort law generally: the principal is normally liable for the tortious conduct of his agent committed within the scope of the agency relationship. Employers can thus be held liable for defamatory statements made by their employees while acting within the scope of their employment. This does not mean, however, that employers need to police every single employee interaction lest they be subject to defamation liability. Virginia businesses cannot be held liable for employee statements made outside the scope of their employment. But what does that mean, exactly?

On June 11, 2018, the Fourth Circuit decided the case of Sade Garnett v. Remedi Seniorcare of Virginia, LLC. Remedi SeniorCare is an institutional pharmacy that ships medications to nursing homes and other long-term care facilities. Sade Garnett worked at its Ashland, Virginia location, often alongside Aaron Try, a night supervisor. One day, Garnett told Try she would be out the next day to undergo surgery. During that absence, Try allegedly told other Remedi employees that “Sade was having surgery on her vagina because she got a STD [be]cause that’s the only reason a female gets surgery on her vagina,” and that “Sade was having a biopsy of her vagina.” Garnett sued Remedi for defamation, based on the false STD accusation.

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On July 1, 2017, a new Virginia law commonly referred to as its “anti-SLAPP” statute went into effect. Anti-SLAPP statutes are laws designed to make it easier to obtain quick dismissals of frivolous lawsuits brought to punish someone for expressing a repugnant idea or to discourage others from expressing those ideas. Defamation law and the First Amendment often go head-to-head in the situation where a speaker defames the character of another individual in the course of speaking out on an issue of public concern. Virginia’s anti-SLAPP statute basically says that when this occurs, the First Amendment should be given greater weight, and the speaker should not be held liable in a defamation action unless the statements were made with actual or constructive malice. If a person, acting in good faith, mistakenly gets some facts wrong when speaking out on a matter of public interest, that person is entitled to immunity under the statute, and may be entitled to reimbursement of legal fees if forced to defend against a libel or slander lawsuit. One question that the statute does not answer, however, is this: When, exactly, does it kick in? Can it be applied retroactively? In other words, does it apply to defamation actions based on statements made prior to July 1, 2017?

The answer largely depends on whether the anti-SLAPP statute is treated as “substantive” or “procedural” in nature. By definition, substantive laws involve the creation of duties, rights, and obligations, whereas procedural laws are those that control only the method of obtaining redress or enforcement of rights. (See Harris v. DiMattina, 250 Va. 306 (1995)). Under Section 8.01-1 of the Virginia Code, all Virginia statutes are to be given effect even if the cause of action arose prior to the effective date of a new law, but courts retain authority to disregard a new law in such instances if the new law would “materially change the substantive rights of a party (as distinguished from the procedural aspects of the remedy)” or would cause a miscarriage of justice.

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The First Amendment to the United States Constitution protects the right to express one’s opinions without fear of defamation lawsuits or other punishment. If you had a bad experience at a local restaurant, you are free to post a negative review on Yelp, Google, or some other consumer-review site and tell the world exactly what you think of the place. The restaurant may not appreciate the effect of your review on its average “star rating,” but it won’t be able to sue you for defamation (not successfully, anyway) if all you did was express your constitutionally-protected opinions. But what are those, exactly?

Distinguishing opinions from statements of fact is not as simple as it sounds, and in many cases, judges and scholars will reach opposite conclusions. For example, a common accusation that gets thrown around a lot is “scam artist” or “scammer.” Is that a factual assertion or an opinion? It’s hard to say without knowing more context. Is the declarant using the term to accuse someone of being “grossly unfair” (an opinion) or is he saying that actual fraud is taking place? Suppose someone writes online that Gatorade’s marketing campaign is a “scam” because Gatorade doesn’t really quench thirst as well as plain water. Contrast that with a statement accusing a local accountant of scamming customers out of hundreds of dollars by manipulating their tax returns. To “scam” someone means different things in different contexts.

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Harassment and bullying can take place in many different forms. Sometimes the conduct is actionable in a court of law, and sometimes it isn’t. Sometimes it involves defamation of character, whereas other times the harassment takes the form of electronic stalking. Before scheduling an appointment to speak with a lawyer, you should know the difference. In a nutshell: if the bad actor’s harassing activity consists primarily of spreading false rumors about a person on social media, then we’re most likely dealing with the law of defamation. Conversely, if the harassment consists of persistent threats of sexual assault or physical bodily harm, you’re dealing with the law of criminal stalking. Defamation occurs when a person publishes an “actionable statement” with the requisite intent. Stalking occurs when a person “on more than one occasion engages in conduct directed at another person with the intent to place, or when he knows or reasonably should know that the conduct places that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person’s family or household member.” (See Va. Code § 18.2-60.3). I write about defamation law all the time, so the rest of this post will focus on what stalking is and how it is different.

A defendant commits the crime of stalking when the following elements are met:

  1. The defendant directed his or her conduct toward the victim on at least two occasions;
  2. The defendant intended to cause fear or knew or should have known that his or her conduct would cause fear; and
  3. The defendant’s conduct caused the victim to experience reasonable fear of death, criminal sexual assault, or bodily injury.

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For an untrue statement about a person to be actionable as libel or slander, it has to be defamatory in nature. I’ve written about defamatory meaning before, but basically what this means is that the statement has to be more harmful than a mere insult; rather, it must cast a person is such a negative light that people hearing or reading the statement would be deterred from associating or dealing with the person about whom the statement was made. A defamatory statement thus lowers its subject in the eyes of the community. But which community are we talking about? Who are these people in whose estimation one may be defamed? Suppose a person is falsely accused of having been discovered in possession of an assault rifle. Whom should we ask about whether that statement carries defamatory meaning, the National Rifle Association or the Coalition to Stop Gun Violence?

There’s not a whole lot of case law to answer this question. The position of the Restatement of Torts is that a “communication to be defamatory need not tend to prejudice the other in the eyes of everyone in the community or of all of his associates, nor even in the eyes of a majority of them. It is enough that the communication would tend to prejudice him in the eyes of a substantial and respectable minority of them.” (See Restatement (Second) of Torts § 559 cmt e). That seems to be the majority position in courts across the country, including Virginia, whether they express the principle in these terms or not.

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To establish defamation, a plaintiff in federal court must plausibly show the defendant (1) published (2) an actionable statement with (3) the requisite intent. An “actionable statement” is one that is (1) factual (as opposed to opinion); (2) false; (3) defamatory in nature; and (4) about the plaintiff. Certain potentially defamatory statements are protected from defamation actions by qualified privilege. Specifically, the privilege applies to communications between persons on a topic in which they share a common interest or duty. (See Larimore v. Blaylock, 259 Va. 568, 572 (2000)).

A plaintiff can overcome this privilege if he shows by clear and convincing evidence that (1) the statements were made with knowledge that they were false or with reckless disregard for their truth; (2) the statements were communicated to third parties who have no duty or interest in the subject matter; (3) the statements were motivated by personal spite or ill will; (4) the statements included strong or violent language disproportionate to the occasion; or (5) the statements were not made in good faith. (See Cashion v. Smith, 286 Va. 327, 339 (2013)).

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