Defamatory Meaning Category Archives — Page 2 of 6 — The Virginia Defamation Law Blog Published by Reston Defamation Attorney — Virginia Slander & Libel Lawyer

May 17, 2019

Defamation By Implication Is an Intentional Tort

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.

January 30, 2019

Rhetorical Hyperbole Is Not Defamation

by Lee E. Berlik

Under Virginia law, rhetorical hyperbole is not defamatory. Rhetorical hyperbole refers to statements that–while they may seem at first glance to express factual assertions about a person–cannot reasonably be interpreted as stating actual facts. To prove defamation, a plaintiff needs to show falsity; rhetorical hyperbole does not literally assert facts, so it is not susceptible of being proven true or false. Therefore, courts treat is as non-actionable opinion.

Another reason rhetorical hyperbole is not considered defamatory is that the law encourages “imaginative expression” in public debate. In Milkovich v. Lorain Journal Co., the Supreme Court noted that rhetorical hyperbole has “traditionally added much to the discourse of our Nation.” (See 497 U.S. 1, 20 (1990)).

January 5, 2019

To Determine Whether an Insult Is Defamatory, Ask the Human Race

by Lee E. Berlik

When the Virginia Citizens Defense League, a gun-rights organization, sued Katie Couric for defamation back in 2016, the two big issues from a legal perspective were (1) whether the edited video of the VCDL members conveyed a false statement of fact, and (2) if so, whether that false message carried a defamatory meaning sufficient to support a cause of action for defamation. When I first wrote about the case the day after it was filed, I devoted most of my blog post to the issue of whether video and still images can support the falsity element of a defamation claim (they can). Now that the case has completed its journey through the legal system, I thought I would revisit this case, this time focusing more on the second issue: that of defamatory meaning.

At the trial level, the court answered both questions in the negative, finding that the video was “not false” and that, even if it were false, it lacked sufficient defamatory meaning to survive a motion to dismiss. On appeal to the Fourth Circuit, the Court of Appeals held as I predicted it might: it overruled the trial court’s determination that the video was not false, but nevertheless affirmed the dismissal of the case because that falsity did not carry defamatory meaning sufficient to state a claim for defamation under Virginia law. What surprised me about the ruling was not the result but how little was written in the opinion about whether the law should recognize a defamation claim based on a false statement deemed despicable by a large segment of society, but not by the majority of Americans. This seemed to be a good case for the court to grapple with that issue, as the degree to which VCDL members’ reputations suffered among viewers of the documentary likely varied according to viewers’ opinions on gun ownership. Instead, the court held (in a footnote, no less) that defamatory meaning should be measured according to “the common estimation of mankind” without consideration of variations that may exist among smaller segments of the populace.

August 8, 2018

Conspiracy Theorists: Defamatory Meaning Depends on Who’s Talking

by Lee E. Berlik

The Internet is full of morons. If an Internet troll who clearly has no idea what he or she is talking about posts false statements on social media about another person, the effect on the reader is different than if the same statement had been written by an authoritative figure and circulated to the public in a formal news release. Readers would tend to believe the assertions made in the authority figure’s formal statement, and tend to dismiss the troll’s statement as nothing more than meaningless Internet noise. In actions for libel and slander, the perceived knowledgeability and credibility of the speaker plays an important role in the determination of whether defamatory meaning has been conveyed by a particular statement.

The Alex Jones lawsuit comes to mind. Alex Jones is the host of InfoWars and an extremely popular online conspiracy theorist. He has claimed that the 2012 shooting at Sandy Hook Elementary School was an elaborate hoax, complete with adult and child actors, invented by government-backed “gun grabbers.” Many of his followers apparently believed his claims and have been harassing the victims’ families. Recently, several of the families have filed defamation lawsuits against Jones, arguing that he “persistently perpetuated a monstrous, unspeakable lie: that the Sandy Hook shooting was staged, and that the families who lost loved ones that day are actors who faked their relatives’ deaths.”

April 18, 2018

What’s An Opinion?

by Lee E. Berlik

The First Amendment to the United States Constitution protects the right to express one’s opinions without fear of defamation lawsuits or other punishment. If you had a bad experience at a local restaurant, you are free to post a negative review on Yelp, Google, or some other consumer-review site and tell the world exactly what you think of the place. The restaurant may not appreciate the effect of your review on its average “star rating,” but it won’t be able to sue you for defamation (not successfully, anyway) if all you did was express your constitutionally-protected opinions. But what are those, exactly?

Distinguishing opinions from statements of fact is not as simple as it sounds, and in many cases, judges and scholars will reach opposite conclusions. For example, a common accusation that gets thrown around a lot is “scam artist” or “scammer.” Is that a factual assertion or an opinion? It’s hard to say without knowing more context. Is the declarant using the term to accuse someone of being “grossly unfair” (an opinion) or is he saying that actual fraud is taking place? Suppose someone writes online that Gatorade’s marketing campaign is a “scam” because Gatorade doesn’t really quench thirst as well as plain water. Contrast that with a statement accusing a local accountant of scamming customers out of hundreds of dollars by manipulating their tax returns. To “scam” someone means different things in different contexts.

January 22, 2018

Defining the Relevant Community When Examining Defamatory Meaning

by Lee E. Berlik

For an untrue statement about a person to be actionable as libel or slander, it has to be defamatory in nature. I’ve written about defamatory meaning before, but basically what this means is that the statement has to be more harmful than a mere insult; rather, it must cast a person is such a negative light that people hearing or reading the statement would be deterred from associating or dealing with the person about whom the statement was made. A defamatory statement thus lowers its subject in the eyes of the community. But which community are we talking about? Who are these people in whose estimation one may be defamed? Suppose a person is falsely accused of having been discovered in possession of an assault rifle. Whom should we ask about whether that statement carries defamatory meaning, the National Rifle Association or the Coalition to Stop Gun Violence?

There’s not a whole lot of case law to answer this question. The position of the Restatement of Torts is 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 Restatement (Second) of Torts § 559 cmt e). That seems to be the majority position in courts across the country, including Virginia, whether they express the principle in these terms or not.

June 3, 2017

The Substantial Truth Doctrine Saves Katie Couric–For Now

by Lee E. Berlik

If a statement claimed to be defamatory is substantially true (even if partially inaccurate), Virginia courts will generally not allow offended parties to bring defamation actions based on the minor inaccuracies. If the damaging aspect of the statement–the part that tends to affect one’s reputation–is substantially true, small factual errors that may exist in the less-important details are deemed insufficient to support a defamation action under the so-called “substantial truth doctrine.” In the Katie Couric defamation case I wrote about back in September, an interesting question arose: is a non-responsive or evasive answer to a question substantially the same thing as sitting in complete silence in response to that question? Judge Gibney thought so, and recently dismissed the case based in part on that reasoning. I would be surprised if that ruling gets upheld on appeal, though it may not ultimately make a difference to the outcome of the case.

Let’s recap briefly what the case is about. Katie Couric produced a documentary on gun violence called Under the Gun. Under the Gun portrays firearms as a serious social problem and advocates in favor of gun control. Ostensibly in an effort to show both sides of the gun-control debate, she invited members of the Virginia Citizens Defense League, a gun-rights organization, to be interviewed on camera. There is a scene in the film where she asks the VCDL group the following pointed question: “If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?” It’s a question often asked by gun-control advocates, and a question most gun-rights advocates are comfortable answering. But in Couric’s film, the responses shown on camera amount to what appears to be bewildered and uncomfortable silence. When the camera cuts away, viewers are left with the impression that the VCDL members had never considered the question before and were unable to come up with a single answer to it.

May 25, 2017

Can Small Business Owners Sue When Their Companies Are Defamed?

by Lee E. Berlik

As a small-business owner, can you sue for defamation personally if someone makes a false and damaging statement about your business? The answer will depend to a large degree on the size of your company and the extent to which the public views you and your company as one and the same. The determining factor is whether a false statement made only about your business (and not about you personally) nevertheless tends to degrade your personal reputation in the eyes and ears of those who hear the statement. If you own XYZ Company and XYZ has 1000 employees, a statement falsely accusing XYZ of producing a defective widget will not necessarily lower you as an individual in the eyes of the community. On the other hand, if XYZ Company is a single-member LLC with no employees or contractors on staff, the very same statement might be deemed to have the “sufficient nexus” that Virginia law requires to make the statement actionable by the business owner individually (as well as the business itself).

Under Virginia law, defamation requires (1) publication of (2) an actionable statement with (3) the requisite intent. What we’re talking about here is the second element of that test, which requires among other things that the statement at issue be “of and concerning” the person or entity bringing the lawsuit. To win a defamation case, you have to show that the statement at issue was intended to refer to you specifically and people who heard it understood it as such. A preliminary question for the judge is whether a reasonable person hearing or reading the statement could conclude that the defamatory statement was essentially “about” the plaintiff, even if the plaintiff is not mentioned by name in the statement.

May 1, 2017

Not Everybody Reads That Story the Way You Do

by Lee E. Berlik

Hypersensitivity is not a desirable personality trait if you are a plaintiff in a defamation case. If you’re the type of person who tends to jump to conclusions about an author’s intent when reading certain statements made about you on social media, you should think twice (and consult with a defamation attorney) before rushing off to sue the writer for libel. This is because when a judge is faced with the task of deciding whether to allow a defamation claim to go forward, one of the preliminary rulings he or she must make is about how a reasonable reader would interpret the words claimed to be defamatory. If most people reading the article or social-media post would not draw the same defamatory conclusions that you are drawing when they read the statement, your case will likely be dismissed at the outset.

When a statement is clear, straightforward and unambiguous, interpretation usually won’t be an issue. But sometimes even the most well-intentioned writer can express thoughts in a manner that implies hidden meaning to at least some readers. Defamation liability can arise out of a statement that is literally true if a defamatory meaning can be reasonably inferred. Key to this principle, however, is that the inferred meaning must be reasonable; it cannot extend beyond the “ordinary and common acceptation of the words used.” A hypersensitive plaintiff who resorts to twisted logic or an overly-technical interpretation to reach a defamatory understanding from non-defamatory words will not be successful in court. Before allowing a case to go to a jury, the judge will examine the circumstances surrounding the making and publication of the statement and decide whether innuendo arising from the statement could cause a reasonable reader to infer a defamatory message.

March 6, 2017

Don’t Overlook Defamation Per Quod

by Lee E. Berlik

When suing for libel or slander in Virginia, it helps if you can make out a claim for that form of defamation known as defamation per se. If the judge agrees that your claim qualifies, he or she will instruct the jury to presume general damages and authorize it to award punitive damages even in the absence of compensatory damages. However, too often, plaintiffs place unneeded emphasis on trying to characterize their claim as defamation per se and overlook regular garden-variety defamation, known as defamation per quod. Defamation per quod can give rise to fairly substantial liability, as Rolling Stone found out when a former University of Virginia won $3 million based on a false portrayal of her in an article about rape on campus.

Defamatory words fall into the “per se” category if they: (1) 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; (2) impute that a person is infected with some contagious disease, where if the charge is true, it would exclude the party from society; (3) impute to a person unfitness to perform the duties of an office or employment of profit, or want of integrity in the discharge of the duties of such an office or employment; or (4) prejudice the plaintiff in his or her profession or trade. (See Carwile v. Richmond Newspapers, 196 Va. 1, 7 (1954)).