The Depp v. Heard defamation trial in Virginia isn’t over yet, but everyone seems to have already picked a side. Whether you’re one of the 7.5 billion people viewing #justiceforjohnnydepp on TikTok or one of the 26 million checking out #justiceforamberheard, chances are that if you’re interested in the case, you have an opinion about which side should win. And if we’re talking odds here, you’re probably on Team Johnny. But how many of you actually know what this case is about? Contrary to what all the viral memes would have you believe, the case isn’t actually about which party was “the abuser” in the relationship. This case isn’t about men’s rights, #MeToo, or #BelieveWomen. It is a lawsuit involving competing claims of defamation that will require a jury of seven people to make very specific findings of fact on a limited number of issues. If the jury does its job and focuses solely on answering the questions the judge will soon instruct them to answer, there is a good chance that both Johnny and Amber will lose this case and return to their California homes empty-handed. From what I’ve seen of the evidence so far, neither side has a particularly strong case.
Public officials have an uphill battle when seeking to sue media outlets for defamation. The public has a legitimate interest in the workings of government and reporters have the right and privilege to communicate information about the actions of public officials so that the government can be held accountable. Consequently, the law has evolved to make it difficult for public officials to sue media organizations for libel, even if a news story about them contains inaccuracies. Specifically, public officials can’t prevail in a defamation action based on their official conduct unless they can prove, with clear and convincing evidence, that the false story was published about them with actual malice, generally defined as knowledge of falsity (or, at a minimum, reckless disregard of the truth). Private individuals, by contrast, generally are not required to meet this standard. The high bar for public figures is designed to strike a balance between the private right against unfair attacks on one’s reputation and the First Amendment right of writers and publishers to share information on matters of public interest and concern. A recent decision of the Eastern District of Virginia shows how difficult it can be for public officials to meet their burden of proof.
The case of Joseph E. Preston v. City Council of the City of Petersburg involved a dispute between the City of Petersburg and its former City Attorney, Joseph Preston. The basic facts, according to the summary-judgment opinion, are as follows. Preston was the City Attorney from October 2016 to September 2018. On September 4, 2018, while Preston was on vacation, the City Council held a special meeting in his absence and passed two motions. One motion terminated Preston’s employment, effective immediately. The second motion stated that Preston would be allowed back into City Hall to retrieve his personal belongings “only by appointment and only if accompanied by a police officer.” The reasons for the firing and the restrictions on Preston’s ability to enter City Hall are not clear.
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.
Clever defamation lawyers seem to have developed a new technique for bringing lawsuits against the rich and powerful. Step One: Announce to the world that a public figure has mistreated you in some way. Step Two: Wait for the public figure to issue a statement disputing your story and proclaiming innocence. Step Three: Sue the public figure for defamation on the theory that the public figure falsely communicated to the public that you are a liar. Sound familiar?
In 2005, California lawyer Tamara Green told the Today Show that Bill Cosby drugged and groped her. Years later, speaking to Newsweek, Cosby’s publicist responded to Green’s accusation as follows: “This is a 10-year-old, discredited accusation that proved to be nothing at the time, and is still nothing.” Ms. Green then sued Cosby for defamation, complaining that “in an effort to continue the public branding of [Green] as a liar, Defendant Cosby…stated explicitly, stated in effect, stated by innuendo, implied, and/or insinuated, that Defendant Cosby’s drugging and sexual assault against Plaintiff Green never occurred, and therefore that Plaintiff Green lied and was a liar.”
In every defamation case, it’s necessary to determine whether the plaintiff should be treated as a public figure, a public official, or a regular Average Joe. This is because “public” plaintiffs face a much higher burden of proof than “private” plaintiffs. A private plaintiff normally only needs to prove that a defamatory statement was made with negligence in regard to whether the statement was true or false, whereas a public plaintiff generally needs to show that the defendant acted with malice, which is much more difficult to prove than negligence. There are many justifications for the discrepancy, but the most frequently cited are that (a) public plaintiffs voluntarily assumed the spotlight, and they should know that having people talk loosely about them comes with the territory, and (b) by virtue of their notoriety, public plaintiffs have more opportunities to rebut defamatory statements. Courts sometimes use the terms “public figure” and “public official” interchangeably, but they are conceptually different, and different considerations determine whether a plaintiff should be treated as one or the other.
The main distinguishing feature is that public officials are not necessarily attention-seeking, and as a result, they are not always treated as “public” plaintiffs who would need to show malice in order to prevail in a defamation action.
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:
California lawyer Tamara Green has accused Bill Cosby of sexual assault. Bill Cosby, speaking through his publicist, characterized the accusation as “discredited” and as amounting to “nothing.” First question: is Cosby calling Green a liar? Second question: is it defamatory to call someone a liar if they’re actually telling the truth? Third question: is a celebrity personally liable for defamatory statements made by that person’s attorney or publicist? Ms. Green believes the answers to all three questions are YES, judging by the fact that she sued Mr. Cosby for defamation a few days ago in Massachusetts federal court. Personally, I’m not so sure.
Let’s begin at the beginning: what did Cosby actually say? In defamation actions, it is important to know the exact words used, lest liability be based on embellishments or mischaracterizations of those words by the plaintiff’s attorney. First of all, it wasn’t Cosby himself who responded to Ms. Green’s allegations. Her lawsuit is based on statements made by his attorney and publicist. Back in 2005, when Ms. Green first went public with her accusations in an appearance on the Today Show (video below), Mr. Cosby’s lawyer at the time, Walter M. Phillips, Jr., allegedly issued a statement calling the accusations “absolutely false” and saying that the alleged assault “did not happen in any way, shape, or form.”
Years later, in a Newsweek interview published in February 2014, Cosby’s publicist (claimed to be David Brokaw) gave Newsweek this statement: “This is a 10-year-old, discredited accusation that proved to be nothing at the time, and is still nothing.” As if to demonstrate the reason we have a requirement here in Virginia to plead the actual words used, Ms. Green does not include this quotation in her complaint. Instead, she characterizes the statement as follows: “in an effort to continue the public branding of Plaintiff as a liar, Defendant Cosby through Brokaw stated explicitly, stated in effect, stated by innuendo, implied, and/or insinuated, that Defendant Cosby’s drugging and sexual assault against Plaintiff Green never occurred, and therefore that Plaintiff Green lied and was a liar.”
If Sally Ferreira‘s allegations are true, she has a valid claim for defamation per se against rapper 50 Cent which could possibly result in a seven-figure damages award. Ms. Ferreira, an actress, model, and dancer, sued 50 Cent (real name Curtis J. Jackson, III) for defamation and emotional distress in federal court in New York, making the following allegations:
Ms. Ferreira has appeared in music videos for various artists such as 50 Cent, Kanye West, Jay Z, Nicki Minaj, Missy Elliot, and Lil’ Kim. In March, Ms. Ferreira participated in 50 Cent’s music video for the song “Big Rich Town,” filmed on the subway in the Bronx. Shortly after the video shoot, leaked photographs of Ms. Ferreira and 50 Cent taken during the shoot appeared on Hip Hop Weekly and MediaTakeOut.com, along with commentary speculating (erroneously) that the two were spotted riding the subway together and that they were romantically involved.
When a defamatory statement is made about a public figure, a plaintiff must prove that the statement was published with actual malice, i.e. with knowledge that the statement was false or with reckless disregard of whether it was false or not. Mere proof that a defendant failed to investigate the truth of a statement is not enough to show actual malice, and where a defendant relies on a responsible source in making a statement, he has not been grossly negligent, much less malicious. However, evidence of intent to avoid the truth can be sufficient to satisfy the actual malice standard. The Second Circuit recently addressed these issues in Dongguk University v. Yale University.
When Shin Jeong-ah applied for a position as an art history professor at the prestigious Dongguk University in South Korea, she stated that she held a Ph.D. from Yale University in Art History, and she submitted a document on Yale University letterhead that purported to be a certification of her degree. The certification contained an exact reproduction of Yale Associate Dean Pamela Schirmeister’s signature but misspelled the name and also misspelled the word “century” in Shin’s listed concentration – Twentieth Century Art. Nevertheless, Dongguk hired Shin and sent Yale an Inquiry Letter with the certification attached seeking to verify its authenticity. Dean Schirmeister received the letter and responded via fax “confirming that the attached letter [the certification] was issued by the Yale Graduate School and signed by me.”
Two years later, Dongguk became suspicious that Shin may have plagiarized her dissertation. An investigation revealed that Yale had no record of the dissertation and that in fact Shin had not received a Ph.D. from Yale. The Korean press latched on to the story, and Yale’s Deputy Counsel Susan Carney and Dean Edward Barnaby began referring all Shin-related media inquiries to its Office of Public Affairs.
Anti-SLAPP laws provide an expedited procedure for dismissing lawsuits that are filed primarily to inhibit the valid exercise of constitutionally protected speech. A defendant seeking to avail herself of an Anti-SLAPP statute must show that the allegedly defamatory statements concern a public matter or a matter of public interest. Not all statements about a person in the public eye qualify. Rather, the subject of the statement must be involved in a public controversy or be so famous that her involvement in a private dispute is a matter of public interest. A California appellate court recently addressed this issue in Albanese v. Menounos and concluded that some celebrity disputes are just none of our business and don’t require the protection of the anti-SLAPP statute.
Lindsay Albanese is a celebrity stylist who worked at NBC for several years as a stylist for Maria Menounos of Access Hollywood fame. Albanese contends that on one occasion after leaving NBC, when Albanese and Menounos ran into each other at an event, Menounos loudly proclaimed that “Dolce and Gabbana won’t lend to me anymore because they said you never returned anything.” Menounos also allegedly told someone at the party afterwards that Albanese had stolen from her while she worked at NBC.
Albanese sued Menounos for defamation, tortious interference with prospective economic advantage, and intentional infliction of emotional distress, arguing that the statements were made with malice, actual knowledge of their falsity, and with specific intent to injure Albanese’s reputation and employment. Her complaint seeks damages for injury to her personal, business and professional reputation, embarrassment, humiliation, severe emotional distress, shunning, anguish, fear, loss of employment and employability and economic loss in the form of lost wages and future earnings. Menounos moved to strike the complaint under California’s anti-SLAPP law.