Articles Posted in Defamatory Meaning

As noted previously on this blog, if an employer falsely suggests to others that an employee was fired for cause when, in truth, the employee quit the job voluntarily, the employer may be liable for defamation. Similarly, when news outlets report on the separation of public figures from their places of employment, they need to be careful with the words they use. Nobody wants to open a newspaper and encounter a story about how they were forcibly removed from a position they voluntarily quit, leaving readers with the false impression that some sort of misconduct occurred. A recent Virginia case involved a news story reporting that a school superintendent was “ousted.” In examining whether a term like this could support a defamation action, the court relied primarily on dictionary definitions.

In Sroufe v. Scripps Media, Inc., Dr. William D. Sroufe, the former superintendent of Colonial Heights Public Schools, took issue with a news story that aired in February 2023 on WTVR/CBS6. The broadcast allegedly misrepresented the circumstances of his departure from the school system. According to the report, Sroufe was “ousted” due to allegedly covering up misconduct by a softball coach at the school. This narrative, he asserted, was not only damaging to his reputation but also blatantly false.

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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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To be actionable as defamation in Virginia, the words used must be more harmful to a person’s reputation than a common insult or an accusation that most people would consider harmless or unimportant in evaluating a person’s character. Defamatory words are those which “tend 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 Bryant-Shannon v. Hampton Roads Cmty. Action Program, Inc., 299 Va. 579, 585 (2021)). But who, exactly, is this “community”? Who are these third persons in whose eyes defamatory meaning is to be measured? These questions become important when there is a lack of consensus among the general public about whether certain personal characteristics reflect poorly on a person’s character or whether they carry any negative connotations at all. Consider an accusation that another person is gay or transgender. If these statements are false, has the person’s reputation been lowered in the estimation of the community? Clearly, the answer depends on whom you ask. As to how the courts are dealing with this issue, a consensus has yet to emerge.

On the one hand, some courts have held that an allegation of homosexuality is defamatory per se because it implies immoral or criminal conduct. Other courts have pointed out that the Supreme Court invalidated sodomy laws with its decision in Lawrence v. Texas and that gay marriage is permitted in all 50 states, concluding that false accusations of homosexuality cannot be considered defamatory. Other courts have expressed concern that to find “gay” defamatory might be interpreted by the public as a validation of anti-gay sentiment. This is what a federal judge in New York had to say after ruling that false imputations of homosexuality are indeed actionable as defamation per se:

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When a party or an attorney files an objectively baseless defamation complaint, the trial court is required to impose sanctions on one or both of them, including but not limited to an award of attorneys’ fees. This is the main takeaway from Nestler v. Scarabelli decided a few days ago by the Virginia Court of Appeals. Litigation attorneys in both state and federal court are required to adhere not only to codes of ethics but also to procedural rules that prohibit using litigation for an improper purpose. Under Virginia Code § 8.01-271.1, any time a lawyer signs and files a complaint on behalf of a client, the lawyer is certifying that “to the best of his knowledge, information and belief, formed after reasonable inquiry, [the complaint] is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and…is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” The court found that Dr. Scarabelli violated that rule by filing a defamation claim against Dr. Nestler that had no reasonable chance of success. Consequently, the trial court was not only permitted but required to impose an appropriate punishment.

MCV Associated Physicians (“MCVAP”) hired Dr. Tiziano M. Scarabelli as the Virginia Commonwealth University Health Systems’ Director of Cardio-Oncology on a one-year contract. After only a few months, MCVAP had received several complaints from staff members about Dr. Scarabelli’s alleged lack of professionalism. MCVAP also received complaints about Dr. Scarabelli from interns, residents, and patients, some of which appeared to constitute allegations of sexual harassment, such as claims that Dr. Scarabelli was “very touchy feely,” would put his hands on women’s thighs, and would often comment on the physical attractiveness of women. There were also claims he was just rude, “always putting down other physicians.” After a year, MCVAP decided not to renew Dr. Scarabelli’s contract.

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The jury trial in the libel and slander case of Dominion Voting Systems v. Fox News Network is now less than two weeks away. The consensus among defamation law experts seems to be that the “big issue” in this case is whether Fox acted with “actual malice,” a requirement established by the seminal First Amendment case of New York Times v. Sullivan back in 1964. Public figures can’t win defamation suits unless they can prove the defendant made a false statement about them with actual malice, generally defined as knowledge of falsity or, at a minimum, “reckless disregard” for the truth, which is the equivalent of a high degree of awareness that the statement at issue is probably false. In most cases, that’s a very difficult thing to prove, and many defamation cases fail due to an inability of the plaintiff to prove actual malice. Dominion’s case against Fox, however, is anything but ordinary. From my perspective, the only real chance Fox had of winning this case at the trial level was not to convince the jury that it failed to act with actual malice (an unlikely prospect) but rather to convince the jury that it was merely broadcasting newsworthy allegations made by others and that it was not necessarily endorsing those allegations. In a recent pretrial ruling, however, the court found that a reasonable jury could only conclude that Fox did, in fact, endorse the conspiracy theories and adopt the accusations against Dominion as its own. The jury won’t be allowed to even consider the issue. That means this case is essentially done. Dominion wins. The only question is how high the judgment amount will be.

Prior to the court’s recent ruling on Dominion’s motion for summary judgment, Fox had a glimmer of hope. After all, Dominion is the party with the burden of proof, not Fox. It is Dominion that needs to prove that the statements made about Dominion on Fox’s broadcasts were false and that Fox is responsible for making them, even if the statements were made only by guests on Fox programming. Even with all the media coverage about those behind-the-scenes text messages by Fox hosts in which they reveal their true feelings about the outlandish and unsupported accusations against Dominion being made by the likes of Sidney Powell and Mike Lindell, at least they could argue to the jury that when a member of the President’s legal team makes a public accusation that a manufacturer of voting machines was complicit in a giant scheme to flip votes and steal an election, that is a newsworthy event that Fox should cover, regardless of whether the accusation is true or false; the accusation itself is news. Sadly for Fox, that ship has sailed. The court has already entered partial summary judgment establishing not only that the statements about Dominion made by Fox guests were false, but that Fox is responsible for republishing those statements as if they were Fox’s own accusations against Dominion.

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If you’ve been falsely accused of violating a law or breaking a rule, whether that false accusation can be deemed defamatory will depend on which rule you are alleged to have broken. Did someone say that they saw you jaywalk across a busy intersection? That may be false, but let’s be honest: who cares? Your reputation is not likely to suffer if some people harbor a false notion that you once crossed the street without using an available crosswalk. On the other hand, if that person falsely accuses you of stealing a car, that could actually cause the people who hear the accusation to think about you a little differently. They might not want to associate with you or transact business with you. A false accusation of committing a serious crime is said to carry “defamatory sting“–it hurts. A similarly false accusation about breaking a trivial rule may not carry such sting. When defamatory sting is lacking, the statement is not actionable as defamation.

The Virginia Court of Appeals published an opinion this week involving an HOA President, Theodore Theologis, who had filed a defamation claim against several of his neighbors in a Winchester townhome community. They had written a letter to the community criticizing his performance as President and supporting a petition seeking to remove him from the Board. One of the defendants had posted something to social media suggesting that the President had himself broken some of the HOA bylaws. He sued them all for defamation but the case was dismissed on various grounds raised by the defendants on separately filed demurrers. Theologis appealed to the Court of Appeals, which affirmed the dismissal of the case with prejudice.

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When relationships go bad, it’s not uncommon for one of the parties to seek to embarrass or harm the other by “exposing” the person for the horrible human being that he or she is. I see this most often in the form of revenge porn, social media bullying campaigns, and in efforts to contact the other person’s spouse or employer to disrupt those relationships and possibly get the other person fired. I’ve written earlier about how the First Amendment may protect informing another’s employer of harmful information if those allegations are completely true, but doing so carries risk. If the employer acts on the information and the employee suffers an adverse employment action, the whistleblower may face liability for defamation and tortious interference, particularly if the employee can convince the court that the statements or their implications are untrue.

Consider the case of Selamawit Teka* v. Jonathan Jack. In August 2021, Teka sued Jack in federal court, complaining that “Jack engaged in a course of unlawful and unauthorized contact with Teka’s employer, wherein he publicized and exposed personal details of Teka’s private life to those she works for without cause, reason or justification. In these communications, Jack publicized and exposed the contents of private social media conversations, and other details of Teka’s personal life, dealings, conversations and activity, to those with no legitimate interest or concern in her private affairs. Jack defamed Teka and violated her right to privacy with the intent to insult, humiliate and embarrass Teka, and get her fired.” The court was not impressed with the invasion-of-privacy claims, but it was persuaded that Teka had alleged a plausible cause of action for defamation and denied Jack’s motion to dismiss that claim.

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A 1968 story in the New York Times reports that “Nona Gaprindashvili of the Soviet Union, the women’s world chess champion,” defeated seven men at an international chess tournament in Sweden, where she was the only woman in the field. In the 1983 book, The Queen’s Gambit, which tells the fictional story of an American girl who rises from humble beginnings to become a top chess player, the author mentions Ms. Gaprindashvili by name in the book’s final chapter set at a prestigious chess tournament in Moscow, noting that she had “met all these Russian Grandmasters many times before.” Netflix released a popular series based on the book which concludes as the book did with the climactic tournament. And just as in the book, Netflix invoked Gaprindashvili’s name for dramatic effect. But they changed one detail. “There’s Nona Gaprindashvili,” an announcer says, while the camera pans to an actress resembling her. “But she’s the female world champion and has never faced men.”

Gaprindashvili, now 80 years old and living in Tbilisi, Georgia, was appalled to learn that her professional accomplishments had been diminished by the series and filed a lawsuit in California last week for defamation and “false light.” To me, the case provides a good illustration of the limitations of defamation law and the reasons some states recognize a cause of action for “false light.” (I should note here that Virginia is not one of those states.)

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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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