Articles Posted in Truth and Falsity

Is truth an absolute defense to a defamation claim? Despite what you may have read elsewhere, the answer (here in Virginia) is no. Aside from the fact that falsity is an element of the claim that needs to be proven by the plaintiff (rather than an issue to be raised as a defense), “defamation by implication” is a developing area of the law in which liability can be based on a statement that is literally true.

In Virginia, before a defamation claim will get to a jury, a judge will need to make a threshold determination regarding whether the statement in question can be reasonably interpreted as defamatory under applicable legal principles. A statement you might interpret as defamatory isn’t going to cause much damage to your reputation, and therefore will not support a defamation claim, if people reading or hearing the statement don’t understand what it means. Sometimes, the context in which a statement is made makes all the difference as to how it will be interpreted and understood. When considering all the surrounding facts and circumstances, an undeniably true statement may nevertheless convey a false and defamatory impression.

This is where inferences come into play. Sometimes the true meaning of a statement comes not only from the actual words spoken, but from inferences fairly attributable to those words. In other words, a defamatory statement can be expressedmisdirection.jpg indirectly rather than directly. Determining whether an implied statement is capable of supporting a defamation claim can be tricky.

When SolAVerde’s attorney spoke to the media about his client’s defamation claims against the Town of Front Royal and certain councilmen, he sounded pretty confident. The court, however, disagreed with his arguments and dismissed the Town from the lawsuit, finding it to be immune. The court also dismissed the defamation claims against the other defendants, but left the door open for SolAVerde, a Virginia solar energy company, to amend its claims against them.

The Complaint alleged that the defendants, in effect, accused the owners of SolAVerde of offering a bribe to public officials in connection with the bidding on a contract for a solar energy processing and production facility. According to plaintiff, a member of the Front Royal town council, whom they were unable to identify specifically, leaked a memorandum to the news media that raised the question of whether certain proposed monetary incentives were actually bribes. The plaintiffs sought $30 million in reputational damages.

However, in a May 26, 2011, opinion, Judge Paul Peatross Jr., sitting by designation in the Warren County court, dismissed the defamation claim. He found that the town was entitled to sovereign immunity because whatever the council members had done in connection with the bids and the possible contract, they were making a governmental decision. “The doctrine of sovereign warren_courthouse.jpgimmunity protects municipalities from tort liability arising out of the exercise of governmental functions,” he wrote. Judge Peatross concluded that the acts alleged by the plaintiffs, including the alleged leak of the document, “amount to a governmental function by the Town of Front Royal acting in its legislative capacity regarding the consideration of solar power for the Town of Front Royal,” and that the town is thus immune from defamation liability.

It doesn’t take a defamation expert to see the flaws in the $2 million libel lawsuit filed this week by Redskins owner Dan Snyder against the Washington City Paper. Mr. Snyder took offense at an article titled, “The Cranky Redskins Fan’s Guide to Dan Snyder: From A to Z (for Zorn), an Encyclopedia of the Owner’s Many Failings,” which contains a detailed list of reasons the author considered him a bad owner. Mr. Snyder also disapproved of an image of him, published with the article in question, on which someone had doodled devil horns and a mustache, which Mr. Snyder deemed “an anti-Semitic caricature of himself” which “forced” him to file the lawsuit. Talk about thin skin.

First of all, how ironic is it that Mr. Snyder claims he was forced to bring this lawsuit to protect his reputation and good name, and yet by virtue of suing the newspaper, he has stoked the interest of the media and triggered widespread public scrutiny into his prior activities, vastly increasing the number of people who will seek out and read The Cranky Redskins Fan’s Guide to Dan Snyder? Personally, I’m not a regular reader of the Washington City Paper and would never have known about the alleged defamatory statements had Mr. Snyder not called my attention to them by suing the paper. Mr. Snyder and his lawyers have alerted the otherwise complacent populace to a long list of alleged bad acts by the Redskins owner. Even if he wins the case, will he really have done himself and his reputation any favors by suing an outspoken critic?

But he won’t win. As I explained in an earlier blog post, not just any hurtful or offensive comment will constitute libel or slander upon which a plaintiff could DevilDoodle.jpgsuccessfully sue for millions of dollars. Defamation liability requires the publication of a false factual statement that concerns and harms the plaintiff or the plaintiff’s reputation. Statements of opinion, regardless of how unfavorable the opinion, are not actionable. Thus, calling Mr. Snyder a failure, likening him to the devil, and referring to the “stain” he supposedly left on the Redskins are all constitutionally protected as free speech.

The tort of defamation is widely misunderstood. Social media outlets like Facebook, LinkedIn and Twitter, which allow easy publication and dissemination of information to a wide audience, are leading to a rise in defamation lawsuits in Virginia and around the country. To be insulted by another, especially when it happens in a public forum, can be hurtful and embarrassing. Whether the insult constitutes actionable defamation under Virginia law, however, or whether it is sufficient to satisfy Virginia’s “insulting words” statute, can present some complicated issues, often implicating the United States Constitution. Relevant considerations for any lawyer examining a defamation claim include the type and context of the speech, the identity of the speaker, the identity of the plaintiff, and the existence of qualified immunity or other defenses.

In Virginia, defamation includes both libel (written defamation) and slander (spoken defamation). There is no need for clever mnemonic devices to distinguish libel from slander, because Virginia law makes no meaningful distinction between the two and speaks only of the merged tort of defamation. The essence of any defamation claim is that a defendant published a false factual statement that concerns and harms the plaintiff or the plaintiff’s reputation. While it is common to recite that “truth is a defense,” that is not technically true, as falsity is a required element of the plaintiff’s proof.

Proof of several elements is required. The defendant must know that the statement was false or must have lacked a reasonable basis for believing it to be true. Defamatory words that cause prejudice to a person in her profession are actionable as defamation “per se,” meaning that it is not necessary to prove actual injury to reputation. Expressions of opinion, however, are constitutionally protected as free speech. Therefore, mere statements of opinion cannot form the basis of a defamation lawsuit.

A couple from Culpeper, Virginia, has sued the Culpeper Police Department for alleged inappropriate behavior upon discovering sexually explicit photographs on a cell phone.  According to the lawsuit, the police arrested Nathan Newhard in March 2008 for DUI and possession of a firearm, and confiscated his cell phone.  Upon inspecting the phone, a town police officer discovered sexually explicit photographs of his girlfriend.  The officer then used the police radio system to announce the availability of the pictures to any interested police officer and several officers viewed the photographs.  Shortly thereafter, Mr. Newhard claims, the police notified his employer, the County of Culpeper School System, that Mr. Newhard had nude photos on his cell phone.  The school told him he would not be recommended for another term, and he resigned.  

Mr. Newhard describes the litigation as a case brought to remedy “egregious and unconscionable violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution” and asserts counts for “deliberate indifference,” “right to privacy,” “outrageous conduct,” defamation, intentional infliction of emotional distress, and failure to train.

It will be interesting to see which claims stick.  I stongly doubt the alleged facts state a valid claim for defamation (which requires a showing of falsity) or intentional infliction of emotional distress (which generally requires more extreme conduct than that alleged, as well as more severe emotional injuries).  A claim that appears to be missing is tortious interference with contractual relations.  If what Mr. Newhard is claiming is true, and a police officer showed a nude picture of his girlfriend to his employer for the purpose of getting him fired, that is the sort of behavior that would likely support a tortious interference claim.

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