Articles Posted in Defamation by Implication

Competing for customers by telling them a competitor is “under investigation” is surprisingly common. I hear this from prospective clients all the time. Most of the time, the accusation isn’t any more specific than that the client is under investigation for something. No one really knows what exactly, but the implication is that if some authority is investigating the client for something–anything–then the client is probably guilty of doing something improper and should be shunned by customers. I suppose one reason this appears to be a fairly common phenomenon is that many think that if they keep the accusation vague enough, and assert only that a competitor is being investigated and hasn’t (yet) been formally found guilty of any specific conduct, then the statements can’t be defamatory. Most courts would disagree with this logic.

A couple of federal cases brought by Grover Gaming, Inc., provide an example of the majority view. Grover is a provider of electronic pull tabs for charitable gaming, a market regulated by the Virginia Department of Agriculture and Consumer Services’ Office of Charitable and Regulatory Programs. Grover is licensed to manufacture and supply these games. In Grover Gaming v. William J. Rice, Grover alleged that Rice (an employee of Powerhouse Gaming, Inc., a competitor of Grover) had been going around claiming that Grover and its employee, Trish Riley, were under “serious state investigation,” which Grover asserted was false. In a parallel case, Grover Gaming v. Rodger Huffman, Grover sued another Powerhouse Gaming employee for essentially saying the same thing, albeit to different customers. “They are under a very serious State Investigation in Virginia!!!!!” Huffman allegedly said. “Be careful dealing with Trish Riley!!! She’s fully involved!!!” Continue reading

Defamation actions cannot be based on expressions of pure opinion because such statements are protected by the First Amendment. To survive a motion to dismiss, a plaintiff needs to allege a false assertion of fact. Separating fact from opinion, however, is not always as clear-cut as one might expect. Courts have reached differing conclusions on whether words like “racist” and “unethical” state facts or merely personal opinions. The easiest way to distinguish fact from opinion is to ask whether the statement is capable of being proven true or false. If so, it’s likely a factual statement. (Statements of opinion can’t be proven true or false because they depend on the speaker’s personal, subjective viewpoint.) To do this, it’s necessary to determine exactly what “the statement” is. In other words, what, exactly, is the message the defendant has conveyed to others about the plaintiff that has caused (or is causing) an adverse effect on the plaintiff’s reputation? This is where it becomes necessary to examine the precise context in which the statement was made.

In Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40, 48 (2009), the Virginia Supreme Court held that in analyzing whether a statement claimed to be defamatory is one of fact or opinion, “a court may not isolate one portion of the statement at issue from another portion of the statement” but must instead “consider the statement as a whole.” The court explained that to fully understand the meaning of the statement being communicated, it’s necessary to view the words claimed to be defamatory together with any accompanying statements and not to examine portions of a larger statement in isolation. Courts also need to consider the speaker, the audience, and the means or media used to communicate the message.

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Last year I wrote a post about how it can be defamatory for an employer to misrepresent the reasons for an employee’s termination. If an employer says that an employee was fired because of reasons X, Y, and Z, the employee may have a valid defamation claim even if statements X, Y, and Z are all completely true. If the reason for the employee’s termination had nothing to do with those pretextual reasons, then the employer’s statement, taken as a whole, is false and therefore potentially defamatory. A case came across my desk today involving a very similar issue: whether a university can be held liable for defamation when announcing that a student’s dismissal from a degree program was due to certain seemingly valid and legitimate concerns based on the student’s failure to pass a required test, when the student’s dismissal was actually due to something else entirely. Consistent with earlier rulings, the court found that on these alleged facts, the plaintiff had presented a viable defamation claim.

The case is John Doe v. Shenandoah University. The alleged facts of the case, according to the opinion, go something like this. The plaintiff was born in Nigeria and emigrated to the United States, where he is now a permanent resident. He enrolled in the Physician Assistant Studies Program (“PA Program”) at Shenandoah University in Winchester, Virginia. At some point after his enrollment, he developed Social Anxiety Disorder, a health condition characterized by extreme fear of social settings. He requested and received various accommodations due to this disorder, such as (a) time and a half for all quizzes and examinations and (b) testing in a quiet, distraction-free environment. One test he was required to pass as part of the PA Program was the Objective Structured Clinical Exam (“OSCE”), a “time-limited practical exam conducted at the end of certain semesters in the PA program” consisting of “a set of predefined stations related to patient care.”

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When a person’s reputation is attacked, sometimes what stings the most is not so much what was actually said but what was implied. Virginia recognizes defamation by implication claims and permits plaintiffs to recover when (1) the defendant makes a statement designed and intended to imply certain false and defamatory facts, (2) in a context that would cause reasonable listeners or readers to infer the intended defamatory meaning, and (3) the plaintiff suffers harm as a result. (See Pendleton v. Newsome, 290 Va. 162, 175 (2015)). To be actionable, however, the inference urged by the plaintiff must be a reasonable one; if the judge has to squint her eyes and stretch her imagination to interpret the defendant’s statement the way the plaintiff is interpreting it, she will likely dismiss the case at the outset. That’s what happened earlier this year in a case brought against Ferrum College by its former athletic director.

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As a general rule, statements of opinion are not actionable as defamation. It’s also true, however, that indirect implications from a statement can form the basis of a defamation claim. When a person prefaces a statement with “in my opinion” or “I firmly believe,” it has no effect on whether the statement carries defamatory implications or innuendo. If a speaker expresses an opinion under circumstances that would cause a reasonable listener to understand that the opinion is based on the speaker’s knowledge of undisclosed facts, that “opinion” can be treated as an implied assertion of fact. And if that factual assertion isn’t true and conveys a defamatory meaning about someone, defamation liability may arise.

This isn’t really an exception to the rule that you can’t sue someone for defamation based on an expression of opinion. Pure opinions remain protected by the First Amendment. The question is whether a reasonable listener or reader would infer from a particular statement (whether couched as an opinion or otherwise) that the speaker or writer knows certain facts, unknown to the audience, which support the opinion and are detrimental to the reputation of the person about whom the statement is made. This is going to depend heavily on context, the identity of the parties, and the specific words used.

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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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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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Even without winking and nudging, defamatory statements can be communicated by innuendo just as clearly as they can by express statements. If you’re going to publish a “hit piece” about another person designed to damage that person’s reputation, you can’t escape defamation liability simply by being careful not to state directly what you are unambiguously expressing indirectly. Libel through innuendo does not enjoy any greater protection under the First Amendment than blatant libel. Defamation may be implied when an author intends for his audience to “read between the lines” while being careful not to make an express statement that is literally false.

I’ve written about defamation by implication before, but one case I haven’t yet covered is Steven D. Parker v. Lancaster County School Board, pending in the Richmond Division of the Eastern District of Virginia. The basic facts, according to the November 4th opinion, are essentially as follows. Dr. Parker is the former Superintendent of Lancaster County Public Schools. He claims he received consistently excellent performance reviews during his tenure. Towards the end of his contract, the School Board Chair instructed Dr. Parker to hire more African-American administrators, even if they were less qualified than white applicants. Dr. Parker pushed back against this idea as he considered it an ill-advised “race-based hiring quota.” The School Board ultimately decided not to renew Dr. Parker’s contract, for reasons Dr. Parker alleges have to do with his refusal to provide preferential treatment to unqualified African-American job applicants and his participation in a racial-harassment investigation into one of the Board members.

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Defamatory statements falling into certain categories deemed particularly damaging to one’s reputation are considered defamatory “per se” and may be compensable even without proof of reputational harm. False accusations of morally reprehensible criminal activity are a common example of this “per se” form of defamation. As the Virginia Supreme Court has put it, defamatory words will be considered defamation per se when they “impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished.” (Tronfeld v. Nationwide Mut. Ins. Co., 272 Va. 709, 713 (2006)). One thing that remains unclear, however, is the degree of specificity required before a statement will be deemed defamatory per se. Must the statement describe specific conduct, or is it sufficient to merely characterize unspecified conduct as criminal in nature? Must a specific criminal offense be identified? There doesn’t yet seem to be a consensus on these questions. The latest Virginia court to deal with them allowed a case to proceed on the basis of very vague allegations.

Here’s what happened in the case of Frances J. Belisle v. Laura Baxter, according to the opinion. Frances brought two counts of defamation per se against Baxter, a police officer with the City of Hopewell, arising out of her arrest at Hopewell High School for disorderly conduct. The police were at the high school at its request to provide security at a school event in which Frances’ minor daughters were participants. They set up a barricade of tables to form a controlled entry point to a hallway in the school. When Frances approached the tables with her 9-year-old daughter, seeking to escort her to a classroom, she was initially told that only the daughter could enter. The police eventually decided it was OK to allow the parent to come in, but when Frances later observed Officer Baxter stopping another mother from entering the hallway, she decided to intervene.

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Whether a particular tort is deemed intentional, as opposed to merely negligent, can have far-reaching implications. Intentional torts and negligent torts are treated very differently when it comes to things like insurance coverage, sovereign immunity, and recoverable damages. Defamation is one of those torts that cannot be easily categorized, as the degree of intent required to hold someone liable for defamation differs depending on the circumstances. If the plaintiff is a public figure, he will have to prove the defendant intentionally made a false statement, or at least made the statement with a high degree of awareness of its probably falsity. Private-figure plaintiffs, on the other hand, need only demonstrate a level of culpability akin to negligence, a standard that does not require a showing of intent. States differ in their treatment of defamation-by-implication cases, but in Virginia, the speaker must have intended to make a defamatory implication to be held liable.

Some would argue that defamation by implication should only be deemed an intentional tort in those cases where malice is required. Most court opinions involving claims of implied defamation focus solely on whether the statement implies a defamatory meaning to the reasonable listener or reader, without regard to the defendant’s subjective intent in making the statement. According to Section 563 of the Restatement (Second) of Torts, “the meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express.” If the requisite level of intent for defamation liability is mere negligence (the usual standard in cases not involving public figures or officials), it might make sense to hold the speaker liable for a reasonable defamatory inference even if that inference was not the intended meaning. Since the Virginia Supreme Court decided Pendleton v. Newsome, however, it has been clear that plaintiffs seeking to hold defendants liable based on a defamatory implication must demonstrate not only a defamatory inference but that the defendant intended to communicate that inference.

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