When I wrote about the elements of defamation back in 2013, I noted that one of the requirements for a successful defamation action is that the statement at issue be “defamatory in nature.” In other words, to be actionable, that statement must convey a defamatory meaning to the reader or listener; it cannot be merely insulting or provocative. What does it mean to be defamatory? The definition varies from state to state. In New York, a defamatory statement is one that exposes an individual “to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or…induce[s] an evil opinion of one in the minds of right-thinking persons, and…deprives one of…confidence and friendly intercourse in society.” (See Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163, 177 (2d Cir. 2000)). Here in Virginia, defamatory words are those “tend[ing] 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 Schaecher v. Bouffault, 290 Va. 83 (2015)). Words that rise to this level have been said to carry the requisite degree of “defamatory sting.”
Regardless of which state’s definition is applied, statements that tend to expose another to hatred, ridicule, or contempt are generally considered defamatory in nature. Disparaging statements about another’s moral values, personal integrity, or financial standing may fall into this category. Note, however, that although cases often recite that being made to look “ridiculous” in the community is sufficient to convey defamatory meaning, defamatory meaning is just one element of a defamation action. The tort of defamation also requires a false statement of fact. Therefore, not every statement that tends to expose another to public ridicule will be actionable in court.
Let’s say we’re dealing with a political cartoon. More often than not, the cartoon will be drawn to convey a message that mocks the politician’s known behavior, expressing the cartoonist’s personal viewpoint. Such a cartoon might subject the politician to public ridicule, but it would amount to the cartoonist’s personal opinion, which is protected by the First Amendment. To be actionable, a cartoon is going to need to state (or, more likely, imply) a factual assertion about its subject that is false. If all it does is ridicule facts known to be true, it may well deter third persons from associating or dealing with the subject of the cartoon, but it won’t be grounds for a lawsuit. (It’s also worth noting here that cartoons are rarely the target of defamation actions because most of them aren’t intended to be taken literally. A cartoon might depict Donald Trump wearing a Nazi uniform, for example, but that wouldn’t be sufficient to support a claim because readers would interpret that cartoon as a criticism of Trump’s political beliefs and not as a literal assertion that he keeps a Nazi uniform in his closet).
We speak of “defamation of character,” but defamatory words don’t necessarily cast aspersions on another’s character traits. It is sufficient if they would tend to deter others from wanting to associate with you, for whatever reason. An accusation that a person acquired a severe case of Noma’s Disease (a disease that often results in horrible facial deformities) through no fault of his own would fall into this category: the statement doesn’t impugn the person’s integrity, character, or reputation, but it would tend to cause others to steer clear, lest they become infected themselves. False accusations that tend to cause social aversion are defamatory in nature.
Now, notice that defamatory words are those that “tend” to harm the reputation of another. It is not necessary that the communication actually cause harm to another’s reputation or actually deter third persons from associating or dealing with him. Rather, whether a statement is defamatory in nature depends upon its general tendency to have such an effect. Let’s use Donald Trump as an example again. Suppose a columnist publishes an article in a national newspaper in which he writes (falsely) that Trump is a card-carrying member of the Ku Klux Klan. Suppose further that despite the article’s falsity, Trump’s reputation and standing in the community does not suffer one bit. Perhaps because the KKK endorsed Trump for President, readers just don’t seem to think it’s a big deal whether or not Trump is a member, or perhaps they do think it’s a big deal, but the statement nevertheless doesn’t lower Trump in their estimation of him because he already occupied such a low position (essentially rendering Trump libel-proof). The point is, for purposes of determining whether calling someone a KKK member carries defamatory meaning, it doesn’t matter. What matters is whether the statement would tend to harm one’s reputation, and in this example, the statement qualifies. Whether the statement actually causes damage to someone’s reputation remains a relevant inquiry, but the relevance is to the amount of damages a plaintiff may be entitled to recover, not to whether the statement is actionable in the first place.
When we talk about the tendency of a statement to harm a person’s reputation in the eyes of the community, which segment of the community are we talking about? If same-sex marriage is legal, should a false implication of homosexuality be considered defamatory? I’m not going to answer that question here, but it illustrates the issue: not all recipients of a communication will react to it in the same way, so whose opinions should the law be concerned about? Regardless of whether gay marriage is legal, some people will go out of their way to avoid interacting with a homosexual person, whereas others couldn’t care less about the sexual preferences of other people.
The Fourth Circuit, citing the Restatement (Second) of Torts, has held 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 Wells v. Liddy, 186 F.3d 505, 526 (4th Cir. 1999)). So if most people in the relevant community would not regard a particular statement as defamatory but some minority of the population would, the question would be whether that minority of people amounts to “a substantial and respectable” segment of the public. So we’re not talking about small extremist groups or criminal organizations. If Gang Member A tells Gang Member B falsely that Gang Member C had a change of heart and is refusing to participate in an upcoming robbery, this may lower Gang Member C in the eyes of Gang Member B, but the law doesn’t care because a criminal enterprise is not a substantial nor a respectable segment of society. If the false statement is that a straight person is homosexual, the court would be faced with a more difficult question because–morally righteous or not–a substantial portion of the public continues to hold members of the LGBT community in low esteem. Not surprisingly, courts across the county have reached different conclusions on the issue of whether it can be defamatory to call someone gay.
Finally, who gets to decide whether a statement carries defamatory meaning? Sometimes whether a statement is defamatory in nature is obvious or cannot reasonably be disputed: to be falsely identified as a murderer is defamatory in nature; to be falsely identified as an idiot is not. Other times, it’s a close call. Resolving it involves both the judge and the jury. The judge acts as a gatekeeper and has the ability to throw out any statements that cannot reasonably be interpreted as conveying a defamatory meaning. The judge will review the complaint and evaluate the statement in context, along with all accompanying statements, and decide whether the statement is potentially defamatory. If it isn’t, the judge will dismiss the claim at the outset. But if the judge finds a reasonable jury could conclude that the statement is defamatory in nature, the claim will survive and will eventually be presented to the jury. Ultimately, it will be up to the jury to decide whether the statement at issue is defamatory.