Articles Posted in Media Defendants

Since the Supreme Court decided the seminal Curtis Publishing case back in 1967, public figures have played an important role in U.S. defamation jurisprudence. That case held that it should be more difficult for public figures to sue for libel and slander than ordinary private citizens, because if public figures have voluntarily thrust themselves “into the vortex” of a public debate, they should assume that they may become the subject of public discussion and should be willing to accept the risk that on occasion, less-careful fact-checkers may say certain things about them that aren’t true. Therefore, although private citizens will only need to demonstrate negligence to recover damages caused by defamation, public figures need to prove the defendant either knew he or she was spreading false information, or acted with reckless disregard for whether the information was true or false. This heightened level of wrongful intent is known as malice.

Some erroneously equate public figures with celebrities. In reality, the level of fame a plaintiff needs to achieve before being categorized as a “public figure” by a Virginia court is much lower than that of household-name celebrities. Moreover, courts recognize “limited purpose” public figures and subject them to the same obstacles regular all-purpose public figures face when the alleged defamation is based on the subject matter of their public participation and involvement.

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When U.S. News asked me last year to comment on Phi Kappa Psi’s plans for a defamation lawsuit against Rolling Stone, I responded that one of the first obstacles the fraternity would have to overcome would be to persuade the court that the article was “of and concerning” PKP as an institution and that it was not just about the individual perpetrators. The “of and concerning” test refers to the principle that a person suing for defamation needs to demonstrate that the defamatory words at issue referred to him or her (or it) specifically, either directly or by implication. That obstacle has now been overcome, as Judge Richard E. Moore of the Charlottesville Circuit Court has ruled that the article is reasonably capable of being interpreted as conveying defamatory allegations against Phi Kappa Psi. He overruled Rolling Stone’s demurrer and has allowed the case to proceed. It will ultimately be up to the fact-finder to determine whether the article is defamatory with respect to the fraternity.

Under Virginia law, a complaint for defamation must show on its face that the alleged defamatory statements are “of and concerning” the plaintiff. A plaintiff satisfies the “of or concerning” test if he shows that the statement was intended to refer to him specifically and would be so understood by persons reading it who knew him. Gazette, Inc. v. Harris, 229 Va. 1, 37 (1985). Whether a statement may reasonably be interpreted as “of and concerning” a plaintiff is a question of law to be decided by the court. If a statement cannot be so interpreted in the opinion of the judge, the case will be dismissed at the outset. But if the court finds a reasonable jury could conclude that the defamatory statement relates to the plaintiff, the court will allow the case to proceed to trial. That is what has happened in the Phi Kappa Psi case.

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When local politicians sue media defendants over false and defamatory stories related to their official conduct, they need to show that the article in question was published with actual malice. That means that it’s not enough to show negligent reporting or that some of the facts in the article are untrue; a successful public official bringing a defamation claim against a newspaper must show that the paper either knew the facts were wrong or that they were most likely wrong, and proceeded to publish them anyway.

In Hanover County, Virginia, Supervisor Sean M. Davis is taking a crack at the publisher of Style Weekly and its reporter, Peter Galuszka, over an article written last December that questioned whether Mr. Davis was exerting improper influence on a local high school’s curriculum. After noting that several books and movies had been banned from Hanover High School, the article described “some students, former teachers and parents” as saying that Supervisor Davis had “personally intervened to have teachers suspended or face other disciplinary actions if they present ideas or images that Davis considers too liberal.” In truth, claims his lawsuit, Davis “had absolutely nothing to do with the suspension or firing of any teacher or the banning of any book.” His challenge is going to be in proving that the reporter republished the accusations against him with knowledge that they were untrue, or at least with a high degree of awareness that the accusations were probably untrue.

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In Virginia, when a defamation action is brought by a private individual (as opposed to a public figure), the plaintiff will usually only need to establish negligence to meet the “intent” element required to prevail in such actions. Public figures, on the other hand, need to prove the defendant acted with New York Times malice. A little-known exception to the rule for private individuals, however, is that if the statement at issue does not make “substantial danger to reputation” apparent to the reasonable publisher, then even private plaintiffs would need to prove malice to recover for defamation. As explained by the Virginia Supreme Court in Gazette, Inc. v. Harris, 229 Va. 1, 22-23 (1985), a threshold question of law for the trial judge is to determine “whether a reasonable and prudent editor should have anticipated that the words used contained an imputation necessarily harmful to reputation.”

Do not confuse “substantial danger to reputation” with defamatory meaning. Regardless of the state of mind of the defendant, a statement won’t be actionable if it doesn’t carry the requisite defamatory sting. Every defamatory statement must contain the sort of false characterizations that would tend to harm one’s reputation. What plaintiffs need to prove in every defamation action is not just that a statement has the potential to cause substantial danger to reputation but that it actually is the sort of statement that would tend to harm reputation. What we’re talking about now–the “Gazette test”–deals with the foreseeability and obviousness of the harmful nature of the statement. In other words, while a successful plaintiff will always need to demonstrate defamatory meaning, if that defamatory meaning would not be readily apparent to a reasonable person in the position of the defendant at the time the statement was made, the plaintiff will need to prove malice, even if he or she is a private individual.

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Has an author deemed it appropriate to include your name in a list of the “Ten Most Dangerous Child Molesters” or the “Top Five Dumbasses of All Time”? According to a recent opinion authored by Judge O’Grady of the Eastern District of Virginia, if you’re claiming defamation based on an Internet “listicle,” chances are you’re going to lose, simply by virtue of the fact that the ubiquitous listicle format is a pretty good sign that what you’re reading is opinion, regardless of the contents of the list.

List-format articles (“listicles”) are everywhere these days. They’re designed to convey ideas in an easy-to-digest format, making them particularly well suited for mobile devices. By their very nature, Judge O’Grady wrote, top-ten lists and other listicles signal to the reader that the content to follow consists of the author’s opinion, rather than provable fact. “These finite lists inherently require authors to exercise opinion and discretion as they choose and rank who or what to include,” the court observed. As such, courts will most likely find statements made therein to be nonactionable opinion, even if they might be construed as statements of fact in other contexts.

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Last month, the Supreme Court of Virginia held in Pendleton v. Newsome that where defamatory meaning is not apparent from the face of a statement claimed to be defamatory, a plaintiff may introduce evidence to show that the statement was made in a context that would reasonably cause the statement to be interpreted in a defamatory sense. Allegations that the circumstances surrounding the making and publication of the statement were such as would convey a defamatory meaning, together with an explanation of meaning allegedly conveyed, “will suffice to survive demurrer if the court, in the exercise of its gatekeeping function, deems the alleged meaning to be defamatory.”

This language certainly seems to suggest that a court might properly dismiss a defamation claim if the full context of the statement is not pled in the complaint. In Potter v. Associated Press, however, the Eastern District of Virginia denied a motion to dismiss and allowed a defamation claim to go forward after expressly recognizing that the complaint omitted the full context of the statement and that the context was necessary to determine whether the statement could reasonably be interpreted to have defamatory meaning.
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The Internet is full of factual assertions that were true at the time they were first published, but no longer are. Can future events modify the factual and legal landscape in such a way as to create defamation liability where there initially was none?

Earlier I wrote about the case of Lorraine Martin v. Hearst Corporation. Lorraine Martin brought a defamation action against several news outlets which had published accounts of her arrest for drug-related charges. It’s not that she wasn’t arrested; her complaint was that the charges were dropped in 2012 and that the publications refused to remove the original articles, which were still available online and causing harm to her reputation. The statements had become false over time, she argued, because Connecticut has an “erasure statute” which provides that after a certain amount of time after the dismissal of a criminal charge, the charge is deemed “erased” and the person’s arrest record is wiped clean. The District of Connecticut rejected this argument, finding nothing in the statute to suggest that the legislature had intended to impose any requirements on anyone outside of courts or law enforcement. On January 28, 2015, the Second Circuit affirmed the dismissal of her claims.

On August 26, 2010, the Connecticut Post, Stamford Advocate, and Greenwich Time, all published articles online stating that Martin had been arrested and charged with numerous drug violations after police received information handcuffs.jpgthat a pair of brothers was selling marijuana in town. News 12 Interactive, LLC, published an Internet article reporting that Martin was arrested “after police say they confiscated 12 grams of marijuana, scales and traces of cocaine from [her] house.” Martin conceded that these statements were all true at the time they were originally published. (Note: even before reading the court’s analysis, it should be apparent to most of you that when a plaintiff admits her defamation action is based on a true statement, there are going to be problems.)

So you may have heard that environmental scientist Paul Brodeur is seeking $1 million in damages for libel, defamation, slander and false light against the movie studios behind 2013’s highly acclaimed film American Hustle. Why? Because according to him, the movie damaged his reputation by “attributing…a scientifically unsupportable statement” to him. Had this action been filed in Virginia rather than California, it would not likely go very far.

Here’s the scene: it’s the late 1970s or early 1980s, and the two characters played by Christian Bale and Jennifer Lawrence are arguing about the new microwave oven that just exploded in their kitchen:

Irving Rosenfeld: I told you not to put metal in the science oven! What did you do that for?

Suppose you’ve spoken your mind about someone you don’t like and have been accused of defamation. Should you apologize? If you intentionally defamed the character of another person out of ill will or spite, you’re probably not going to want to apologize. But if you’ve either had a change of heart or a sudden realization that you’re about to get sued, there are some good reasons to say you’re sorry.

For one thing, apologizing–if done right–can mitigate the plaintiff’s damages. Plaintiffs who sue for libel or slander in Virginia aren’t just limited to recovery of out-of-pocket pecuniary losses; they can also recover damages for pure emotional distress. Even without proof of actual reputational harm, Virginia courts have allowed plaintiffs to recover compensation for mental anguish, embarrassment, and humiliation. In essence, the worse the plaintiff feels, the higher the potential for a large damages award. In the business world, studies of disgruntled customers have shown that they are more than twice as likely to forgive a company that performs poorly but then apologizes than one that offers payment in lieu of an apology. It stands to reason, then, that a plaintiff’s emotional distress will likely be diminished if you make a sincere, timely apology, and publish that apology to the same group to whom you made the defamatory remarks.
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According to The Virginian-Pilot, Portsmouth attorney Sterling H. Weaver was “convicted in Portsmouth General District Court of assault” in June 2006. A new lawsuit filed by that attorney alleges that a WAVY-TV report, broadcast in February 2014, reported similarly that “in 2006, a Chesapeake judge sentenced [Mr. Weaver] to 30 days in jail for grabbing a prosecutor by the throat after she asked to postpone a case.” (The quote is from the complaint, not the WAVY-TV report). Mr. Weaver says that he heard the report while in jail, where he was staying after being “indicted for assault on a law enforcement officer and sexual battery of that officer.” The report was defamatory, the lawsuit claims, because “the 2006 charge of assault was dismissed.”

Those of you who share with me an unnatural interest in Virginia defamation law are naturally curious as to what the issues in this case are going to be. There are several in my mind, but here are the first few that jump out:
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