To be actionable as libel or slander, a statement must not only be false, but must also be defamatory in nature. To have defamatory meaning, a statement must carry a sufficient degree of “sting”; merely offensive or unpleasant statements are not defamatory. See Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993) (noting that falsity of statement and defamatory sting must coincide). A communication that is merely unflattering, annoying, irksome, or embarrassing, or that hurts the plaintiff’s feelings, without more, is not actionable in Virginia. See R. Sack, Libel, Slander and Related Problems 45 (1980). So how much of a sting is enough to state a claim?
While the Virginia Supreme Court has not spoken recently on the requisite degree of “sting” required to support a defamation action, federal courts applying Virginia law have held that a statement may be actionable only if it contains a false assertion of fact that “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” See Wolf v. Fed. Nat. Mortg. Ass’n, 830 F. Supp. 2d 153, 168 (W.D. Va. 2011). This is also the position taken by the Virginia Model Jury Instructions and the Restatement (Second) of Torts. See Va. Model Jury Instr. 37.010; Restatement (Second) Torts § 559 (1977). (Update: On June 4, 2015, the Virginia Supreme Court decided Schaecher v. Bouffault, in which it formally adopted the Restatement test that has been followed in the Fourth Circuit for several years.)
Until the Schaecher decision, the most recent pronouncement by Virginia’s highest court on the issue appears to be the 1904 case of Moss v. Harwood, in which the court held that to be actionable as defamation, the words must be such that would tend “to injure one’s reputation in the common estimation of mankind, to throw contumely, shame, or disgrace” upon the plaintiff, or which would tend “to hold him up to scorn, ridicule, or contempt, or which [are] calculated to render him infamous, odious, or ridiculous.” Moss v. Harwood, 102 Va. 386, 46 S.E. 385, 387 (1904).
A more recent example comes from the Norfolk Circuit Court in a decision dated March 26, 2021. In Solomon H. Ashby, Jr. v. John L. Rowe, Jr., the former city attorney of Portsmouth sued its former Mayor for mischaracterizing his legal advice. The City Attorney, Solomon Ashby, claimed that the mischaracterization resulted in “injury and harm to both his good personal reputation and his good business reputation, as well as great humiliation, shame, vilification, exposure to public infamy, scandal, and disgrace.” (See para. 27 of the complaint). He sought $2 million in damages.
The court dismissed the case, finding that a slight mischaracterization of legal advice lacked sufficient defamatory sting to be actionable.
The basic facts of the case go something like this. The Portsmouth police chief filed controversial charges arising out of the destruction and defacement of Portsmouth’s Confederate monument. This displeased the City Manager, who put the police chief on administrative leave. This, in turn, displeased some citizens, who began to call for the City Council to fire the City Manager. The City Council sought legal advice from Mr. Ashby about whether it should indeed fire the City Manager. Mr. Ashby drafted a memo advising them not to do it. Shortly after receiving this advice, the City Manager resigned, and the City Council decided to fire Mr. Ashby as City Attorney.
In speaking to the press to explain the reasoning behind the decision to fire the attorney, former Mayor John Rowe explained that the legal advice they received regarding whether to fire the City Manager caused them to lose confidence in Mr. Ashby:
That [advice] was the straw that broke the camel’s back. I have never seen an opinion like that before. It just did not make any sense and it doesn’t make any sense now….It’s what we thought was not very balanced and good advice, and that shakes your confidence.
The Mayor described the legal memo as one “culminating in an opinion that you can’t fire the city manager, that the city manager is bulletproof, and that just does not hold up.”
Mr. Ashby had not, in fact, opined that the City Manager could not be fired, so he sued for defamation. While the court agreed (or assumed) the Mayor’s characterization of the memo was false, it pointed out that the falsity was relatively minor in that Mr. Ashby did suggest that firing the City Manager could be deemed illegal:
However, he did write that the City Council should not do so; that a vote for her discharge could be a violation of two sections of the Portsmouth City Code, both of which are misdemeanors; that a citizen could file a “charge” with a magistrate against members so voting; that he (the plaintiff) “would have to forward the facts of City Council’s action to the Commonwealth Attorney’s Office for consideration.” [for possible criminal prosecution].
The court concluded that although statements accusing a professional of willful incompetence or unethical conduct would likely have sufficient “sting” to state a claim for defamation, the statement at issue in this case was more akin to a “slight mischaracterization” of legal advice. The court recognized that a gross mischaracterization of certain types of advice might carry sufficient sting (such as where a lawyer is falsely accused of having advised a client to engage in illegal or immoral activity), but that was not the situation here. In this case, the slight mischaracterization of the lawyer’s advice was found insufficient to injure his “reputation in the common estimation of mankind,” throw shame or disgrace upon him, or hold him up to scorn or ridicule by the community.
In another recent case, Wall v. Wal-Mart Stores, Inc., the court examined the statement “Oh, you said you want to fight me” and analyzed whether it carried the requisite degree of defamatory sting (based on the assumption that the plaintiff did not actually want to fight the declarant). In holding that defamatory sting was lacking, the court looked primarily to the Schaecher case. There, regarding the statement “It would appear that Mrs. Schaecher was not totally truthful,” the court found it did not meet the threshold for defamatory sting because “it is married to a single and relatively benign particular fact regarding whether Schaecher was operating a commercial kennel, and so does not necessarily impugn Schaecher’s character as a whole.” (See Schaecher v. Bouffault, 290 Va. 83, 102 (2015)). In the Wal-Mart case, the court found that the alleged statements about supposedly wanting to fight were tied to a “single and relatively benign” incident; namely, a dispute with customer service employees at Wal-Mart. “Stating that a customer wants to fight an employee, without more, does not inflict such reputational injury as to subject the customer to ‘disgrace, shame, scorn, or contempt,'” the court ruled. “Instead, it merely suggests that the customer, like many before and since, had an unpleasant and perhaps heated interaction with customer service.”
When analyzing a particular statement to determine whether it might be sufficient to state a cause of action for defamation, ask yourself these questions: Is the statement the type of statement that would have a tendency to harm reputation? Would reasonable people hearing the statement be deterred from associating or dealing with the subject of the statement if they believed it to be true? Does the statement pertain to the subject’s honesty, integrity, or virtue, or is it a mere insult? The answers to these questions may not be clear. If necessary, I can help you. What is clear is that only those statements with a sufficient degree of sting will be deemed actionable in Virginia.