Allegations of Malice Must Be Plausible

When public figures bring defamation lawsuits, First Amendment concerns dictate that they must demonstrate “actual malice” as a prerequisite to recovery (See New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964)). This is generally defined as either actual knowledge of falsity or, at a minimum, reckless disregard for the truth. Falsity alone is insufficient to support a defamation claim brought by a public figure; if the defendant had no reason to know that his or her statements about the public figure were false, the defendant will not be liable for defamation. Knowing this, public figures represented by competent counsel are always careful to ensure they allege in their pleadings that the defendant acted with actual malice. More and more, however, Virginia state courts are saying that conclusory allegations of this sort are not enough. To survive a demurrer, the plaintiff must plead facts that, if true, would create a plausible inference of actual malice.

A few days ago, the Court of Appeals of Virginia made this point clear in the case of Tonya D. Chapman v. Jonathan Burkett. Ms. Chapman, a public figure due to her position as Chair of the Virginia Parole Board, filed this complaint against Mr. Burkett and others, alleging they defamed her with a news story that reported on the differences between a 13-page initial draft of an Inspector General report and a heavily redacted 6-page final report. Essentially, Chapman was upset because the story seemed to suggest that the report was heavily edited for political reasons as opposed to a determination that the initial conclusions were false and unfounded. She claimed the article implied that she violated the law and that the reporter acted with actual malice in that he knew this implication was false.

Did Ms. Chapman allege actual malice? In matter-of-fact terms, yes, she did. For example, pointing to the line in the article about how the Inspector General determined that Chapman “violated multiple state codes and policies and violated the constitution of Virginia,” she alleged that the defendants “knew that such statement was false when they published it.” (See Complaint ¶ 59). The trial court wasn’t convinced that this was a Prisoner-297x300sufficient allegation of actual malice and sustained the defendants’ demurrer. The Court of Appeals agreed and affirmed the dismissal.

The reason? There just weren’t enough allegations in the complaint to demonstrate plausibly that the defendants published their story with actual malice. There was no dispute that there was an earlier, longer version of the Inspector General report that concluded that Chapman had committed a criminal offense. There was also no dispute that by the time the Inspector General’s office issued its final report, the report did not contain this conclusion. Chapman’s position was that the reason the final report did not include the determination she had committed a crime was because it wasn’t true, and that the reporter must have known this when writing the article and presenting his report on television. The court did not agree.

The court noted that Chapman seemed to hang her hat on the observation that there were various discrepancies between the draft and final report. The fact that there were discrepancies, however, does not necessarily mean that the conclusions in the draft report were false or unfounded. In fact, the whole point of the news story was the fact that there were two different versions of the report. Chapman herself acknowledged in her complaint that another reporter had reviewed both versions and that the reason for the various discrepancies was “not immediately clear.” There were no allegations in the complaint explaining why one reporter had actual knowledge that the draft report contained false statements while another reporter was unable to reach a similar determination.

In short, although the public-figure plaintiff did allege that the defendant acted with actual malice, this conclusory and self-serving allegation was simply not plausible in light of the other allegations in the complaint. The Court of Appeals found that Chapman effectively “failed to plead that Burkett had actual malice” because there were no allegations demonstrating that Burkett knew the statements he reported from the draft report were false.

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