When public figures bring defamation lawsuits, First Amendment concerns dictate that they must demonstrate “actual malice” as a prerequisite to recovery (See New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964)). This is generally defined as either actual knowledge of falsity or, at a minimum, reckless disregard for the truth. Falsity alone is insufficient to support a defamation claim brought by a public figure; if the defendant had no reason to know that his or her statements about the public figure were false, the defendant will not be liable for defamation. Knowing this, public figures represented by competent counsel are always careful to ensure they allege in their pleadings that the defendant acted with actual malice. More and more, however, Virginia state courts are saying that conclusory allegations of this sort are not enough. To survive a demurrer, the plaintiff must plead facts that, if true, would create a plausible inference of actual malice.
A few days ago, the Court of Appeals of Virginia made this point clear in the case of Tonya D. Chapman v. Jonathan Burkett. Ms. Chapman, a public figure due to her position as Chair of the Virginia Parole Board, filed this complaint against Mr. Burkett and others, alleging they defamed her with a news story that reported on the differences between a 13-page initial draft of an Inspector General report and a heavily redacted 6-page final report. Essentially, Chapman was upset because the story seemed to suggest that the report was heavily edited for political reasons as opposed to a determination that the initial conclusions were false and unfounded. She claimed the article implied that she violated the law and that the reporter acted with actual malice in that he knew this implication was false.