If you’ve been falsely accused of violating a law or breaking a rule, whether that false accusation can be deemed defamatory will depend on which rule you are alleged to have broken. Did someone say that they saw you jaywalk across a busy intersection? That may be false, but let’s be honest: who cares? Your reputation is not likely to suffer if some people harbor a false notion that you once crossed the street without using an available crosswalk. On the other hand, if that person falsely accuses you of stealing a car, that could actually cause the people who hear the accusation to think about you a little differently. They might not want to associate with you or transact business with you. A false accusation of committing a serious crime is said to carry “defamatory sting“–it hurts. A similarly false accusation about breaking a trivial rule may not carry such sting. When defamatory sting is lacking, the statement is not actionable as defamation.
The Virginia Court of Appeals published an opinion this week involving an HOA President, Theodore Theologis, who had filed a defamation claim against several of his neighbors in a Winchester townhome community. They had written a letter to the community criticizing his performance as President and supporting a petition seeking to remove him from the Board. One of the defendants had posted something to social media suggesting that the President had himself broken some of the HOA bylaws. He sued them all for defamation but the case was dismissed on various grounds raised by the defendants on separately filed demurrers. Theologis appealed to the Court of Appeals, which affirmed the dismissal of the case with prejudice.
The opinion noted that Theologis listed 24 separate statements in his complaint that he alleged were defamatory but was asked at oral argument to identify the five most damaging statements. When, as an attorney, you’re asked at oral argument to identity the worst things said about your client (i.e., the most defamatory of the defamatory statements), you know the court is having an issue with defamatory sting. (This is the same question I ask prospective clients when they come to me with complaints about supposedly terrible things said about them in a Twitter thread and I go through the thread and can’t identify anything particularly noteworthy. If internet bullies refer to a prospective client of mine as a “jerk,” a “total waste of space,” a “pscycho,” and a “child molester,” all I really want to hear more about is the “child molester” accusation, because that’s the only statement that really holds defamatory meaning in a way likely to be interpreted as fact.)
Theologis identified the following statements as the worst of the bunch:
- “[Theologis] has made repeated efforts to impose far more restrictive policies than provided for in the Covenants & By-Laws. Examples are…”
- “…absurdly stringent yet disparately applied enforcement of ‘violations’ as seen through his adversarial view.”
- [Theologis] “at times exclud[ed] [fellow board members] from board decision-making altogether,”
- “thereby usurping the authority granted to the Board as a whole via the Covenants & By-Laws.”
- Stating that Theologis “[s]cheduled a special board meeting using dubious circumvention of proper guidelines for doing so as outlined in the Covenants & By-Laws.”
The statements identified in the complaint but not making the list included statements asserting that Theologis’s leadership or communication style as president was poor, adversarial, or detrimental to the best interests of the homeowner’s association, and a statement claiming that Theologis’s “behavior extends to an ongoing failure to communicate properly with homeowners as well, often to the point of appearing to be purposefully deceptive.”
First of all, to the extent that all of these statements reflect mere personal opinions of the authors, they would not be actionable. The court, however, did not get into First Amendment issues. Rather, it decided to assume for the sake of argument that the statements were all factual in nature so that it could reach the issue of whether the accusations carried sufficient defamatory sting, which was one of the few arguments all five defendants argued in their respective demurrers. (Appellate courts may affirm an order sustaining a demurrer only on a ground raised by the defendant in the trial court.)
Without exception, the court held that the statements lacked sufficient sting and were therefore not actionable. In so holding, it looked primarily to the Schaecher opinion, which found that a defamation claim could not be supported by a false assertion that someone violated a covenant, ordinance, or easement. Most of the accusations against Theologis related to his supposed failure to properly apply or follow various provisions of the HOA’s governing documents. The court found that these statements were similar to the ones at issue in Schaecher in that they were contractual in nature and did not accuse anyone of reprehensible conduct. To be merely accused of not abiding by HOA rules would not tend to subject Mr. Theologis to shame, scorn, or contempt in the community. Such accusations, even if unjustified, lacked defamatory sting and were therefore not actionable.