Must Context Be Apparent from the Face of the Complaint?

Last month, the Supreme Court of Virginia held in Pendleton v. Newsome that where defamatory meaning is not apparent from the face of a statement claimed to be defamatory, a plaintiff may introduce evidence to show that the statement was made in a context that would reasonably cause the statement to be interpreted in a defamatory sense. Allegations that the circumstances surrounding the making and publication of the statement were such as would convey a defamatory meaning, together with an explanation of meaning allegedly conveyed, “will suffice to survive demurrer if the court, in the exercise of its gatekeeping function, deems the alleged meaning to be defamatory.”

This language certainly seems to suggest that a court might properly dismiss a defamation claim if the full context of the statement is not pled in the complaint. In Potter v. Associated Press, however, the Eastern District of Virginia denied a motion to dismiss and allowed a defamation claim to go forward after expressly recognizing that the complaint omitted the full context of the statement and that the context was necessary to determine whether the statement could reasonably be interpreted to have defamatory meaning.

Dena Potter was a news editor for the Associated Press involved in covering the 2013 Virginia gubernatorial contest between Terry McAuliffe and Ken Cuccinelli. She was fired shortly after a story came out that mistakenly accused McAuliffe of lying to a federal investigator probing a death-benefits scam. According to her complaint, despite the fact that she wasn’t the editor responsible for the story, AP executive editor Kathleen Carroll made defamatory statements about Potter to other AP employees regarding Carroll’s decision to fire Potter. The statements included:

1. Statements to the effect that Potter had made a “grievous mistake” from which “there was no recovery.”
2. Statements to the effect that Potter had “failed the [AP’s] own standards.”
3. Statements that there were “no employees involved in something like” what Potter was involved with “who did not leave the company.” and 4. Statements that the standard Carroll applied to fire Potter “does not mark a change in our standards.”

The court noted that whether a statement is one of fact or one of opinion is a matter of law to be decided by the court, and recognized further that “the Court must look to the actual language used, as well as the context and general tenor of the statement,” to make this determination. The court then observed that Potter’s complaint lacked AP logo.pngsufficient allegations of context to enable the court to determine whether statements 2-4 should be interpreted as statements of fact or opinion.

Curiously, rather than grant the motion to dismiss for failure to plead the statements in their entirety, including allegations of the circumstances surrounding the making and publication of the statements, the court denied the motion, finding that the complaint alleged a plausible claim: “Accordingly, at this early stage of the litigation, the Court finds that Potter has alleged facts which, considered in the light most favorable to Potter, plausibly allege statements actionable as defamation.”

A Virginia state court would likely have reached a different result and dismissed the case (albeit without prejudice, giving the plaintiff an opportunity to file an amended complaint complete with allegations of factual context). Perhaps the AP’s decision to remove this case to federal court wasn’t such a good idea after all.

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