Defamatory statements falling into certain categories deemed particularly damaging to one’s reputation are considered defamatory “per se” and may be compensable even without proof of reputational harm. False accusations of morally reprehensible criminal activity are a common example of this “per se” form of defamation. As the Virginia Supreme Court has put it, defamatory words will be considered defamation per se when they “impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished.” (Tronfeld v. Nationwide Mut. Ins. Co., 272 Va. 709, 713 (2006)). One thing that remains unclear, however, is the degree of specificity required before a statement will be deemed defamatory per se. Must the statement describe specific conduct, or is it sufficient to merely characterize unspecified conduct as criminal in nature? Must a specific criminal offense be identified? There doesn’t yet seem to be a consensus on these questions. The latest Virginia court to deal with them allowed a case to proceed on the basis of very vague allegations.
Here’s what happened in the case of Frances J. Belisle v. Laura Baxter, according to the opinion. Frances brought two counts of defamation per se against Baxter, a police officer with the City of Hopewell, arising out of her arrest at Hopewell High School for disorderly conduct. The police were at the high school at its request to provide security at a school event in which Frances’ minor daughters were participants. They set up a barricade of tables to form a controlled entry point to a hallway in the school. When Frances approached the tables with her 9-year-old daughter, seeking to escort her to a classroom, she was initially told that only the daughter could enter. The police eventually decided it was OK to allow the parent to come in, but when Frances later observed Officer Baxter stopping another mother from entering the hallway, she decided to intervene.
Frances told Baxter that young children shouldn’t be unsupervised and that Baxter should either allow parents to escort their children down the hallway or that Baxter or one of the other officers escort the children themselves. Baxter disagreed and an argument ensued. Eventually Baxter demanded that Frances leave the school or be arrested. When that did not immediately happen, Baxter put Frances in handcuffs. When Frances demanded to know the reason for her arrest, Baxter responded that she was being arrested “for disorderly conduct in a public place.” Disorderly conduct is a crime, so, naturally, Frances sued for defamation per se (among other claims and defendants).
The court identified the following eight statements Baxter was alleged to have made about Frances:
- “Baxter demanded that Fran[ces] leave the [s]chool or be arrested.”
- “Baxter told Whittington that she was taking Fran[ces] to jail.”
- “Keohane republished false and defamatory statements of and concerning Fran[ces] that he…had heard from Baxter and Whittington, including: ‘She…was very loud, very aggressive and belligerent to the officers. They gave her several opportunities to leave the area and to calm down and that just didn’t happen. If she just listened to the Officers, the arrest would have never occurred.'”
- “Baxter told Fran[ces] that no parents were allowed in the hallway and it was not her ‘job to escort children.'”
- “Baxter said ‘no’ and argued with Whittington for about a minute.”
- “When Fran[ces] started to film the incident with her cell phone, Baxter initially ordered Fran[ces] to stop.”
- “Baxter stated to Fran[ces] publicly and in front of many people that Fran[ces] was being arrested for ‘disorderly conduct in a public place.'”
- “In her testimony [at Frances’s trial in Hopewell General District Court], Baxter flatly contradicted Kyles. Baxter confirmed that no curse words were used by Fran[ces] during the whole incident and that Kyles was, in fact, lying to the Court.”
To me, the incident described in the complaint sounds like nothing more than a common kerfuffle between a stubborn police officer and an overly assertive parent. But defamation is a complex tort where liability often depends on the subjective perception of the reader, and in this case, the court decided that statements 1-3 were all potentially defamatory. The court denied Baxter’s motion to dismiss as to those statements, “albeit barely.”
Statement #1 alleged that Officer Baxter gave Frances an order: something along the lines of, “if you don’t get out of here, I’m going to arrest you.” The court held that this statement–presumably overheard by others–implied that Frances committed a crime. Taking the allegations of the complaint as true, the court reasoned, Frances did not commit a crime, and could thus potentially prove that the implication was false. And because the statement imputed to Frances the commission of a crime, it qualified as defamation per se.
That ruling will probably surprise a lot of people. Notice how Statement #1 was completely truthful. It was a warning: leave, or be arrested. Frances didn’t leave, and she was arrested as promised. Notice how Baxter was speaking directly to Frances, not to third parties. And even applying the court’s reasoning finding an implied assertion of criminal activity, notice how vague the implication is. Statement #1 does not identify any specific conduct on behalf of Frances, nor does it identify the particular crime for which she would be arrested if she didn’t leave. The court essentially found that the mere suggestion that a person may have committed a crime of some sort may be actionable as defamation if no crime in fact occurred.
Here’s what I want to know: what should Baxter have said to Frances to avoid subjecting herself to defamation liability? It seems to me that under the court’s logic, any time an officer arrests a person who turns out to be not guilty runs the risk of getting sued for defamation. Arresting a person implies the person committed a crime. False accusations of criminal activity are defamatory per se. Boom! The cop is liable. Should suing for defamation really be that easy? Should the law require an officer in Baxter’s position to delicately qualify instructions to people? I suppose Baxter might have avoided a lawsuit had she said “if you don’t get out of here, I’m going to arrest you, but in case anyone is listening, I should clarify that I will be arresting you only on my personal suspicion that you may have committed the crime of disorderly conduct, a crime of which you are presumed innocent until proven guilty in a court of law.”
The court denied the motion to dismiss statement #2 as well. Statement #2 was “Baxter told [Hopewell Police Captain] Whittington that she was taking Fran[ces] to jail.” Again, that was a truthful statement accurately describing Baxter’s intent. As with the first statement, however, the court found it “plausibly suggests that Frances committed a crime for which Baxter arrested Frances.” If Frances can prove at trial that she did not actually commit a crime, the court reasoned, she is entitled to recover for defamation per se.
Curiously, the court did not allow Statement #7 to proceed, which alleged that “Baxter stated to Fran[ces] publicly and in front of many people that Fran[ces] was being arrested for ‘disorderly conduct in a public place.'” This was just Baxter’s explanation of why she was detaining Frances, the court reasoned, and “Frances cannot maintain her cause of action for defamation based on Baxter’s explanation for Frances’s detention.” I agree with the court’s reasoning here, but how is this any different from Statement #1? Doesn’t Statement #7 also imply that Frances committed the crime of disorderly conduct?
Statement #3 also survived dismissal. That was based on an allegedly false statement that Frances “was very loud, very aggressive and belligerent to the officers.” Frances claimed she was none of these things, so the court permitted the claim to proceed. But aren’t these characterizations a matter of opinion? How loud is “very loud”? Frances needs to prove falsity to prevail on her defamation claim, so even if she proves she acted “calmly and compliantly” as she claims, how can she prove that the volume of her speech was not so loud as to be considered “very” loud? By her own admission, she was involved in a verbal disagreement with Officer Baxter. Who’s to say whether her behavior was “aggressive” or “belligerent”? To me, this is a matter of personal opinion, and personal opinions cannot be actionable as defamation.
Anyway, Belisle v. Baxter is a 49-page opinion and I’ve only scratched the surface. The point I wanted to make with today’s blog entry is that there remains a lot of uncertainty in predicting how defamation claims will be decided in Virginia, and that courts are still grappling with trying to figure out exactly what it means for a statement to be considered defamatory per se.
Obviously, I have some issues with this ruling. I’ve always understood the defamation-per-se rule as requiring a statement falsely accusing a person of engaging in certain specific conduct. There’s a big difference between “Dave stabbed Victor with a kitchen knife” and “Dave committed a crime.” The latter is vague, arguably a matter of opinion, and communicates very little information. (Did Dave jaywalk? Cheat on his taxes? Who knows?) The former conveys specific false factual information that will undoubtedly cause severe harm to Dave’s reputation. That’s what the law of defamation per se is designed to protect against. To impose defamation liability for any statement that vaguely suggests or implies possible criminal activity of an undisclosed nature would open the floodgates to hordes of thin-skinned plaintiffs looking for their day in court.