Articles Posted in Opinion

As a general proposition, libel and slander liability requires a defamatory statement of fact; expressions of opinion are not actionable. Distinguishing assertions of fact from expressions of opinion, however, is not always an easy task. Factual statements are generally those that contain—expressly or impliedly—a provably false factual connotation. “Mr. Smith drank ten shots of tequila last night” is a statement of fact; either he drank ten shots or he didn’t. Expressions of opinion, on the other hand, are relative in nature and depend largely upon the speaker’s personal viewpoint. They tend to consist of evaluative statements reflecting the speaker’s own political, moral, or aesthetic views. “I think Mr. Smith drinks more tequila than he really should” would likely be deemed an expression of opinion by most courts. But consider the statement “I think Mr. Smith must be an alcoholic.” Fact or opinion?

Statements that appear at first to be opinions but which could fairly be interpreted as implying the existence of facts not disclosed by the speaker are treated by Virginia courts as opinions “laden with factual content,” which is a sufficient predicate upon which to base a defamation action. (See Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 298 n.8 (1987)). Ultimately, whether a statement of apparent opinion will be deemed sufficiently laden with factual content to support a defamation action will depend on a number of factors that would influence how a reasonable reader or listener would most likely interpret the statement. Considerations include the following:

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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Most Virginia litigators probably associate the Supreme Court’s decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal with an increased pleading burden in federal court, requiring that lawsuits allege “plausible” claims rather than just remote possibilities. In the limited context of pleading defamation claims, however, the plausibility standard applicable in federal court appears to be making it easier to survive preliminary dismissal motions in federal court than in Virginia state court.

Earlier this year, I wrote about Potter v. Associated Press, in which a federal court allowed a defamation claim to go forward despite the absence of facts sufficient to show defamatory meaning, reasoning that it was plausible the claim was valid. Last month, in the latest example of this phenomenon, the Eastern District of Virginia held that unlike in state court, defamation claims can survive even if they do not allege the exact words used. Why? Because all that is needed to survive a motion to dismiss in federal court is a “short and plain” statement of the claim demonstrating a plausible right to relief. A complaint may be plausible on its face even if it fails to set forth the exact words allegedly used by the defendant.

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Redouane Goulmamine, M.D., is physician based in Petersburg, Virginia, who conducts business under the name “The Petersburg Spine Center.” According to a complaint he filed in the Richmond Division of the Eastern District of Virginia federal court, he became aware that several employees of CVS Pharmacy were providing false information about him to patients and refusing to fill prescriptions he had written. CVS eventually made it official, sending him a letter notifying him that the pharmacy would no longer fill his prescriptions and implying its decision was based on its belief that Dr. Goulmamine had been writing pain-pill prescriptions for drug addicts.

Dr. Goulmamine sued CVS for defamation, insulting words, and tortious interference with contract/business expectancy. The complaint recites nearly two-dozen conversations with CVS employees alleged to be defamatory. Some of the statements were clearly statements of opinion (e.g., “he is filling too many prescriptions”), but the court noted that several alleged statements amounted to statements of fact that were claimed to be false. These statements primarily fell into two camps: (1) false factual statements about Dr. Goulmamine himself (e.g., that he was in jail; that he had overprescribed to a pregnant patient; that one of his patients had died from a Xanax overdose; and that someone in his office was producing fraudulent prescriptions); and (2) false or misleading factual statements about Dr. Goulmamine’s standing in relationship to regulatory bodies (e.g., that the DEA, FBI, or Board of Medicine was investigating him or had revoked his license, or that he was being “audited.”)
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Online review sites wield enormous power, and some enterprising consumers have begun leveraging that power to extract refunds or other benefits from businesses worried about protecting their online reputations. Suppose you’re at an orthodontist’s office being fitted for some $5000 braces when the orthodontist accidentally pierces the inside of your cheek. You decide that (a) the doctor is incompetent and (b) the world should be made aware of that fact for the good of mankind. Your first instinct is to go to Yelp or HealthGrades and write a scathing review warning the public about the dangers of dealing with this orthodontist. But then you realize you might be able to gain even greater satisfaction another way: you contact the doctor, tell him of your plans to write a negative online review, and offer to refrain from posting the review if he will waive the $5000 charge for the braces. You get free braces, and the doctor gets to preserve his 5-star Yelp rating. Win-win, right?

Consumers have a First Amendment right to express their opinions regarding products and services they have received, but things get a little tricky when people threaten to exercise that right as a means to extract money from someone. Some would call this blackmail, known in Virginia as extortion. Extortion is governed by Va. Code § 18.2-59, which provides in pertinent part, “Any person who (i) threatens injury to the character…of another person,…and thereby extorts money, property, or pecuniary benefit or any note, bond, or other evidence of debt from him or any other person, is guilty of a Class 5 felony.”
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To successfully maintain an action for libel or slander, a plaintiff’s complaint must allege facts that support each element of the tort. Failure to plead the required elements will lead to an early dismissal, and failure to prove the required elements at trial will result in losing the case. Trying to figure out exactly what those elements are, however, has never been easy in Virginia. Supposedly, the test for a valid defamation claim includes only three elements: (1) publication of (2) an actionable statement with (3) the requisite intent. The problem with applying this seemingly simply test is that element (2) is so complicated that it should really be broken down into several elements of its own. I attempted to do that with this blog post I wrote back in 2013, and I encouraged the Virginia Supreme Court to adopt a more useful seven-element test for defamation the last time I appeared before it, but my suggestion has not caught on with the justices. On June 4, 2015, the court decided Schaecher v. Bouffault, the new definitive case outlining the elements of defamation in Virginia.

Although the court still enumerates only three elements, we now have additional guidance on what it means to allege and prove an “actionable statement.” The two big takeaways from the case are (1) Virginia now follows Fourth Circuit precedent on the definition and scope of defamatory “sting”, and (2) it can be defamatory to call someone a “liar,” but whether such a statement will be actionable will depend on the circumstances surrounding the statement and the context in which it was made, as those considerations will govern whether the statement would be interpreted as a statement of fact (actionable) or opinion (not actionable). The gravity of the lie itself will also be relevant to the determination, as the lie must cause reputation to be adversely affected to a sufficient magnitude before it will be deemed defamatory.
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The case of AdvanFort Co. v. International Registries, Inc. involves a defamation claim brought by AdvanFort and its owners against their former attorney, maritime lawyer John Cartner, and The Maritime Executive, a maritime industry journal. According to the complaint, shortly after AdvanFort complained about getting billed over $28,000 for less than two weeks’ worth of legal services, Cartner wrote an article entitled “Self-Described AdvanFort ‘Billionaire’ May Not Be” in which he made numerous assertions allegedly calculated to lower AdvanFort in the estimation of the maritime community. Cartner responded that his article amounted to mere rhetorical hyperbole, which is not actionable, and that the article was not written with malice.

Defamation requires either a provably false factual assertion or a statement that can be reasonably interpreted as stating or implying actual facts about a person. Rhetorical hyperbole is protected under the First Amendment and cannot form the basis of a defamation claim. (See Milkovich v. Lorain Journal Co., 497 U.S. 1, 17, 21). The Fourth Circuit has described rhetorical hyperbole as a statement that “might appear to make an assertion, but a reasonable reader or listener would not construe that assertion seriously.” (See Schnare v. Ziessow, 104 Fed. App’x 847, 851 (4th Cir. 2004)).

In analyzing whether a particular statement will be actionable as defamation in Virginia, it’s usually helpful to review recent cases to see how actual judges have ruled. It’s often not entirely clear whether a statement is an assertion of fact, an expression of opinion, or rhetorical hyperbole. Here’s how Judge O’Grady ruled with respect to the various statements at issue in this article:
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To be actionable as libel, a statement must reasonably imply false and defamatory facts when read in context. Context is important because the setting of the speech makes its nature apparent and helps determine how its intended audience would have interpreted the statement. In some cases, a literally false statement will not be actionable because contextual factors demonstrate that the true meaning of the statement is something other than what the words alone might suggest. In other words, the statement that a plaintiff must prove false to prevail in a defamation case is not necessarily the literal phrase published but rather what a reasonable reader would have understood the author to have said. In Farah v. Esquire Magazine, the United States Court of Appeals for the District of Columbia Circuit discussed the importance of these principles in a case involving political satire.

Jerome Corsi is the popular author of several New York Times bestsellers and the book “Where’s the Birth Certificate? The Case that Barack Obama is Not Eligible to be President” published by WND Books. Joseph Farah is the Editor and CEO of WND’s parent company, WorldNetDaily.com, a competitor of Esquire Magazine. On the day after “Where’s the Birth Certificate” was released, Esquire published an online article on “The Politics Blog” entitled “BREAKING: Jerome Corsi’s Birther Book Pulled from Shelves!” A copy of the Drudge Siren, a symbol of sensationalistic news, appeared above an image of the book’s cover. The article claimed that Farah had announced plans to recall and “pulp” the entire first run of the book and to refund purchaser’s money because three weeks earlier, Obama had produced his long form birth certificate indicating he was born in Hawaii. Later, Esquire published an update clarifying that the article was satirical, but the writer of the article referred to Corsi as an “execrable piece of shit” in an interview published on another online publication, The Daily Caller.

Farah and Corsi sued for defamation and other torts. According to the complaint, after the article was published, Farah received numerous requests for confirmation of the story and comment, and consumers began requesting refunds. The plaintiffs also claimed that they were attacked by book supporters and that book stores pulled the book from their shelves or refused to sell it. Farah and Corsi contended that Esquire only published the update after Farah indicated that he was exploring legal options and that the update was likewise false and defamatory. The district court granted Esquire’s motions to dismiss under both Federal Rule of Civil Procedure 12(b)(6) and D.C.’s Anti-SLAPP Act, D.C. Code § 16-5501 et seq.

To survive demurrer, claims for defamation must set forth the exact language of the alleged statements claimed to be defamatory. Some Virginia judges (like Judge Charles E. Poston of Norfolk) refer to this requirement as a “heightened pleading” standard, but care should be taken not to confuse this terminology with the heightened pleading standard for fraud claims, which generally requires that fraud allegations identify the time, place, content, and maker of each alleged fraudulent statement. No such particularity is required for defamation claims in Virginia.

Judge Poston recently sustained a demurrer to a defamation claim that failed to allege the specific words spoken. In Owens v. DRS Automotive Fantomworks, Inc., Mr. and Mrs. Owens tasked DRS and Daniel Short with converting their 1960 Thunderbird into a 1960 Thunderbird Police Interceptor. The Owens paid DRS two deposits of $15,000 each which DRS used for restorations, repair work and part expenditures including the purchase of a Police Interceptor from Alexander Thiess. When the defendants refused to give the Owens documentation of the expenditures, the Owens asked DRS to return the vehicle. DRS demanded that the Owens pay an additional $3,313. The Owens refused and sued DRS. DRS filed a counterclaim alleging that the Owens defamed it in statements made to Mr. Theiss and his superiors. The Owens demurred to the defamation counterclaim, arguing that it failed to allege sufficient facts.

The allegedly defamatory statements were that the Owens described Mr. Short’s business practices as illegal, criminal, shady and not on the up-and-up; asserted that Mr. Short and DRS were under criminal and civil investigation and that they likely stole the Police Interceptor; claimed Mr. Short was a “liar” regarding the history of Tbird.jpgthe Police Interceptor, and that he deceived and overcharged the Owens for the Interceptor. The counterclaim, however, contained only two verbatim quotes: that the Owens called Mr. Short a “liar” and that DRS sold vehicles with “open-titles.” The court found the vague allegations insufficient.

Well-known climate scientist Michael Mann made good on his threat to sue the National Review and columnist Mark Steyn for defamation based on statements made online questioning Mann’s global warming research. In response, the defendants filed a special motion to dismiss under D.C.’s anti-SLAPP statute, arguing that the online statements were made in furtherance of the right of advocacy on an issue of public interest. The court found that the anti-SLAPP statute did apply but nevertheless denied the motion.

Mann is a professor of meteorology and the Director of the Early System Science Center at Penn State. He is well known for his research on global warming and has published papers and books on the subject. The University of East Anglia’s Climate Research Unit (CRU) exchanged emails with Mann which were later misappropriated. In one email, a CRU scientist referred to Mann’s “nature trick” of adding in real temperatures for the last twenty years and from 1961 to “hide the decline.” Upon discovery of the emails, the University of East Anglia investigated the matter and concluded that the honesty and rigor of the CRU scientists was not in doubt but that the email referencing Mann’s “nature trick” was misleading.

In 2010, Penn State initiated an investigation of Mann and the CRU emails. The investigatory committee was comprised entirely of Penn State faculty members. Based on an interview with Mann, the committee cleared Mann of three of four charges against him. The last charge involved an allegation that Mann’s research might deviate Mann.jpgfrom accepted norms. The committee interviewed an MIT professor who was critical of Mann’s work and later expressed dismay with the scope of the investigation and the committee’s analysis of the CRU emails.

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