Defamation law in Virginia and Washington, D.C. is identical in most material respects. Choice-of-law principles usually won’t make much of a difference to the outcome of a defamation case. Both Virginia and D.C. follow the general principles of defamation law that are recognized throughout the United States. There are, however, some notable differences in terms of the specific rules and legal standards that apply to defamation cases. Today’s blog post summarizes some of the key differences that might affect how you choose to present your case or where you intend to bring it.
Defamation Per Se
Virginia recognizes both defamation per se and defamation per quod. In the District of Columbia, the law in this area is less clear. Defamation per se is a type of defamation that is considered so damaging to a person’s reputation that it is automatically assumed to be defamatory, without the need for the plaintiff to prove actual damages. In Virginia, defamatory statements qualify as “per se” defamatory if they (1) impute the commission of a crime involving moral turpitude; (2) impute that the plaintiff is infected with a contagious disease which would exclude the party from society; (3) impute an unfitness to perform the duties of a job or a lack of integrity in the performance of those duties; or (4) prejudice the party in his or her profession or trade. In the District, there isn’t a lot of authority recognizing defamation per se in any situation other than one involving a false statement relating to the commission of a serious crime. (See, e.g., Raboya v. Shrybman & Assocs., 777 F. Supp. 58, 59 (D.D.C. 1991) (“In the District of Columbia, in order to be actionable as libel per se, the contents of a defamatory publication must “impute…the commission of some criminal offense for which [the Plaintiff] may be indicted and punished, if the charge involves moral turpitude and is such as will injuriously affect [the Plaintiff’s] social standing, or,…the question is whether, from the language attributed to defendant, there is something from which commission of a crime can be inferred.’”)). Thus, a plaintiff contemplating a defamation claim based on a false statement prejudicing the plaintiff in his or her profession would usually be better off bringing the claim in Virginia, where damages may be presumed.
A Strategic Lawsuit Against Public Participation, or SLAPP, is an action filed by someone (often someone rich and powerful) with the goal of punishing or preventing the expression of opposing points of view (as opposed to seeking damages for actual harm to reputation). Anti-SLAPP protection is more robust in the District than it is in Virginia. D.C.’s anti-SLAPP Act includes specific procedural tools to expedite the dismissal of meritless litigation whereas in Virginia the anti-SLAPP statute leaves much up to the discretion of the trial judge. On the other hand, the scope of D.C.’s statute is somewhat narrower than the scope of Virginia’s statute. In D.C., the anti-SLAPP statute will only apply to claims “arising from an act in furtherance of the right of advocacy on issues of public interest.” (See D.C. Code § 16-5502). In Virginia, anti-SLAPP protection may be afforded to any statement “regarding matters of public concern that would be protected under the First Amendment to the United States Constitution,” without regard to whether that statement was made in furtherance of the right of advocacy on an issue of public interest.
In Virginia, “All words shall be actionable which from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace.” (See Va. Code § 8.01-45). D.C. has no comparable statute. Engaging in “fighting words” likely to provoke an immediate physical retaliation may get you arrested for disorderly conduct in D.C., but not sued for insulting words.
False Light / Intrusion Upon Seclusion
D.C. recognizes these “invasion of privacy” claims whereas Virginia does not. A plaintiff pleading a claim of false light under D.C. law must allege (1) publicity (2) about a false statement, representation, or imputation (3) understood to be of and concerning the plaintiff and (4) which places the plaintiff in a false light that would be offensive to a reasonable person. (See Kitt v. Capital Concerts, Inc., 742 A.2d 856, 859 (D.C. 1999)). The tort of intrusion upon seclusion has three elements: (1) an invasion or interference by physical intrusion, by use of a defendant’s sense of sight or hearing, or by use of some other form of investigation or examination; (2) into a place where the plaintiff has secluded himself, or into his private or secret concerns; and (3) that would be highly offensive to an ordinary, reasonable person. (See Wolf v. Regardie, 553 A.2d 1213, 1217 (D.C. 1989)). In Virginia, you can’t sue for either of these things unless the behavior meets the requirements of some other tort.
Substantive Defamation Law Essentially the Same
In Virginia, the elements of defamation are (1) publication of (2) an actionable statement with (3) the requisite intent. (See Tharpe v. Saunders, 285 Va. 476, 480 (2013)). In the District of Columbia, the elements require a plaintiff to show: (1) that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant published the statement without privilege to a third party; (3) that the defendant’s fault in publishing the statement amounted to at least negligence; and (4) either that the statement was actionable as a matter of law irrespective of special harm or that its publication caused the plaintiff special harm. (See Crowley v. N. Am. Telecommunications Ass’n, 691 A.2d 1169, 1173 (D.C. 1997)). In practice, although courts from the two jurisdictions have expressed the required elements in different terms, they mean essentially the same thing. Most of what appear to be extra requirements in D.C. are baked into Virginia’s “actionable statement” concept.
Other than the anti-SLAPP statute, there aren’t really any meaningful differences in the defenses one can bring to a defamation action, either. The District’s “fair comment” privilege protects opinions based on facts that are well known to readers. To take advantage of this privilege, a defendant must show that the publication was fair and accurate and that the publication properly attributed the statement to the official source. The privilege does not appear to be recognized in Virginia, but this is of little practical effect because the privilege only protects opinions (see Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 88 (D.C. 1980)) and opinions are not actionable anyway.
Virginia and D.C. both recognize the similar defense of “fair report,” which allows the media to report on matters of public interest without fear of defamation liability. Reporters and news organizations that report on government activities are shielded from defamation claims this privilege so long as the publication is a “fair and substantially correct statement of the transcript of the record.” (See Alexandria Gazette Corp. v. West, 198 Va. 154 (1956)). The privilege protects “press reports of official actions or proceedings, so long as the report was accurate and either complete or fairly abridged.” (See Chapin v. Knight-Ridder, Inc., 993 F.3d 1087, 1097 (4th Cir. 1993)). As expressed by a D.C. court, “[d]efamatory matter concerning another in a report of any official proceeding or any meeting open to the public which deals with matters of public concern is published on a conditionally privileged occasion if the report is (a) accurate and complete, or a fair abridgement of what has occurred, and (b) published for the purpose of informing the public as to a matter of public concern.” (See Oparaugo v. Watts, 884 A.2d 63, 81 (D.C. 2005)). Everyone has a right of access to public records, and the fair report privilege makes it easier for the media to communicate the information contained therein to the public so that the government can be held accountable.