Articles Posted in Opinion

As often repeated on this blog, the expression of an opinion is protected by the First Amendment and cannot form the basis of a defamation claim. “It is firmly established that pure expressions of opinion are protected by both the First Amendment to the Federal Constitution and Article I, Section 12 of the Constitution of Virginia and, therefore, cannot form the basis of a defamation action.” (See Williams v. Garraghty, 249 Va. 224, 233 (1995)). What’s an opinion? Generally speaking, it’s a relative statement told from the speaker’s personal perspective that isn’t susceptible of being proven true or false. It’s a statement that can’t reasonably be interpreted as conveying actual facts about a person. If a jury instruction is worded in such a way as to allow for the possibility that the jury will find a defendant liable for defamation based on a statement of opinion, that verdict will likely be set aside or reversed. People are entitled to their opinions, no matter how negative or disparaging they might be; you can’t go around suing everyone who criticizes you (not successfully, anyway) unless that criticism includes defamatory falsehoods in addition to the negative opinions being expressed.

It isn’t always easy to distinguish statements of fact from statements of opinion, and lawyers get this wrong all the time. The latest decision of the Virginia Supreme Court to deal with this issue is the case of Amanda C. Padula-Wilson v. Scott David Landry, decided May 14, 2020. The plaintiff was a mother of three children involved in custody and visitation proceedings. When the custody hearing didn’t go as she had hoped, she sued one of the therapists for defamation. (She brought numerous other claims as well in a complaint containing 276 numbered paragraphs, but those claims are outside the scope of this blog). The trial court dismissed the claim, finding that the therapist’s statement was protected by both qualified privilege and absolute judicial privilege. The Virginia Supreme Court granted an appeal, but ultimately agreed with the trial court that the claim was not actionable and affirmed the dismissal.

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Hey, all you politicians from around the country who would bring your defamation lawsuits here in Virginia because you’ve been told it’s a plaintiff-friendly jurisdiction: just because our anti-SLAPP laws may not be as robust as they are in some other states (and that may be about to change: see House Bill 759) doesn’t mean that the First Amendment doesn’t afford protection to political commentary and opinion. Even in Virginia, a person’s personal opinions regarding a politician or celebrity are immune from defamation claims, no matter how insulting or derogatory those opinions may be. You knew when you ran for office that there would be a lot of public discussion about your behavior; the occasional inadvertent factual error comes with the territory. Politicians are expected to have skin thick enough to withstand public criticism.

Not all of them do. Much has been written about the Virginia lawsuits filed by California Congressman Devin Nunes, but today I want to discuss Joseph D. Morrissey v. WTVR, LLC. Joe Morrissey previously served as the leading prosecutor for the City of Richmond, Virginia, and is a former member of the Virginia General Assembly. As such, he is a public figure. He filed a defamation lawsuit against WTVR, LLC d/b/a CBS 6 and its reporter, Mark Holmberg, based on this video segment it ran back in 2016. Morrissey claimed the video made him appear unfit to serve as mayor and portrayed him as a “stupid liar, who was a sex crazed maniac.” In the video, Holmberg refers to Morrissey as a “fool” and a “clown” and stated that the Virginia State Bar was “coming after him.” Morrissey demanded $1,350,000 in damages.

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Statements of pure opinion are protected by the First Amendment and are not actionable as defamation. Whether an alleged defamatory statement is one of fact or opinion is a question of law to be decided by the court, not the jury. It is also for the trial judge (and not the jury) to determine whether a particular statement may support a defamation action. At the same time, however, statements alleged to be defamatory must be evaluated in context, along with all accompanying statements, and cannot be considered in isolation. (See Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40, 48 (2009)). This is all black-letter defamation law, but courts have struggled with the question of how exactly to instruct a jury considering a defamation claim based on a statement that includes both statements of fact and expressions of opinion. Today we have a new opinion offering some guidance. (Full disclosure: my firm was involved in the case).

Handberg v. Goldberg involved a dispute between a Loudoun County resident and The Morgan Center, a provider of educational advocacy services. The Morgan Center (run by Dr. Felicia Goldberg) kept Mr. Handberg’s debit card on file and would seek authorization from him prior to charging it for various services. Billing disagreements arose and Handberg eventually sent an email to his son’s school informing them that Dr. Goldberg no longer represented his son and including various details about the parties’ billing dispute. Dr. Goldberg sued Mr. Handberg for defamation based on this email, identifying 11 specific statements she believed were defamatory. Among those 11 statements were these three:

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The Virginia Supreme Court has had enough of defamation verdicts based on subjective statements that are relative in nature and depend largely on the speaker’s viewpoint. Such statements are statements of opinion, not fact, and cannot support a defamation verdict. A few years ago, the Court made it very clear that “ensuring that defamation suits proceed only upon statements which actually may defame a plaintiff, rather than those which merely may inflame a jury to an award of damages, is an essential gatekeeping function of the court.” (See Webb v. Virginian-Pilot Media Companies). This means that if a plaintiff files an action for libel or slander based solely on a statement of opinion, the trial court’s duty is to dismiss the case at the outset.

Of course, this doesn’t always happen, as illustrated by the recent case of William D. Sroufe v. Muriel Tamera Waldron. Mr. Sroufe is the division superintendent for Patrick County Public Schools. Ms. Waldron is a former principal of Stuart Elementary School in Patrick County. Mr. Sroufe was unhappy with Ms. Waldron’s performance, particularly in connection with her administration of Virginia’s Alternative Assessment Program (“VAAP“) for students with learning disabilities. He decided to ask the school board to reassign her to a teaching position, explaining his reasoning as follows in a letter he gave to her:

You failed to ensure that the [Individualized Education Program] Teams understand the [VAAP] participation criteria and apply them appropriately when considering students with disabilities for the VAAP. Your actions will result in students being required to take [Standards of Learning] assessments who, under a correct interpretation of the criteria, should not have been required to do so.

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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.

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Defamation Law 101 teaches that expressions of opinion are protected by the First Amendment and are not actionable in court. To bring a successful defamation suit, you’ll need to prove that someone made a false statement of fact about you. If that person merely expressed his or her personal opinion, the law of defamation will not provide a remedy, no matter how unfavorable the opinion is or how harshly it was expressed. Distinguishing assertions of fact from expressions of opinion, however, is not always an easy task. Smart lawyers and even judges will frequently disagree with each other on whether a particular statement is “fact” or “opinion”.

In theory, the differences are clear. A statement of fact is one that contains an assertion capable of being proven true or false. Statements of opinion are those that can’t be proven true or false because they depend on the speaker’s personal, subjective viewpoint. A recent Virginia case illustrates the difficulties that come with applying this test to real-world situations.

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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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