As I have discussed on this blog before on several occasions, a literally true statement can give rise to a defamation claim if a reasonable listener would infer a defamatory message from the words (and images) used, even if the words themselves do not convey that defamatory meaning directly. If innuendo would cause a reasonable listener to “read between the lines” and infer that the speaker is communicating a defamatory statement about another individual despite the use of words that are not themselves false or defamatory, that can be sufficient to state a viable claim. This is the concept of “defamation by implication.” Earlier this month, in a case brought by a convicted felon, Judge Gibney of the Eastern District of Virginia permitted such a case to proceed to trial.
The case arose out of this CBS 6 broadcast in the Richmond area. Watch it carefully. Did you see or hear anything that would likely cause damage to someone’s reputation? Well, someone named Angela Engle Horne thought so, and so she sued the station for defamation, claiming that her reputation had been damaged by the story. Here’s what happened, according to papers filed in the case:
Horne applied for a position as Director of Budget and Finance for the Prince George County School System back in 2014. On her application, she truthfully disclosed that she had been convicted of a felony (an 18-year-old drug charge, according to this Internet post Horne apparently made during her initial search for legal advice). Virginia law prohibits convicted felons from working at schools, but she got the job anyway. A few months later, an anonymous individual wrote the school board and asked why the school system had illegally hired a convicted criminal. After consultation with legal counsel and after asking Horne to resign (an offer she declined), the county fired her.
Acting on an anonymous tip, WTVR (which operates CBS 6) contacted Bobby Browder, Superintendent for the School System and the person who had terminated Horne’s employment, and asked for comment on whether the school system had hired, and then fired, a convicted felon. While Mr. Browder would not discuss specifics about any particular individual, he agreed to be interviewed on the air about the school system’s hiring process in general. CBS 6 ran the story (which really wasn’t much of a “story” since Browder would not discuss specifics) and concluded it with the following statement: “Virginia state law is also specific when it comes to filling out an application for a school system. It is a Class 1 misdemeanor to make false representations when it comes to revealing criminal convictions.”
So did you spot the defamation? If you don’t know Angela Engle Horne personally, then you are probably scratching your head. She is not mentioned by name anywhere in the story, but she was, in fact, the individual who was “hired, and then fired” by the Prince George County school system. And she was a convicted felon, so that part of the story was true. What she claimed in her lawsuit, however, was that the story gave viewers the false impression that she had lied on her job application by failing to disclose her prior conviction. That implication, she alleged, was false.
WTVR moved to dismiss the case, and later for summary judgment, arguing that the news story was completely true. But the court denied the motions, finding that while the statements made in the broadcast might have been literally true, the story was “reasonably capable of the defamatory meaning alleged by Horne.” The name of the story was “Felon Hired, Then Fired,” and those words were displayed across the screen for the duration of the segment. Viewed in context, the court held, viewers could reasonably infer that the school system fired the felon for failing to disclose the prior conviction on her job application.
So the court allowed the case to proceed to trial. What’s interesting to me is that there is no discussion in the opinion about the “of and concerning” test, which requires a showing that the defamatory words at issue referred to the plaintiff specifically, either directly or by implication. As mentioned previously, the story does not mention Horne by name. That’s not dispositive of the issue. To satisfy the of-and-concerning test, a publication does not need to identify the plaintiff by name, but it does need to identify the plaintiff with sufficient particularity so that people who know the plaintiff would understand the communication to be referring to that person. To me, this seems like a potentially fatal flaw in Horne’s case. Even if the broadcast could be reasonably interpreted as an implied accusation that a convicted felon tried to conceal the fact of the conviction from the school system, I don’t see anything in the broadcast suggesting the faintest hint of that person’s identity.
Interestingly, the case did proceed to trial, but WTVR never had to present any evidence; the court entered judgment in WTVR’s favor as a matter of law, immediately after Horne rested her case. How did that happen? Well, because Horne’s position as Director of Budget and Finance for the School System involved substantial responsibility for the conduct of governmental affairs, the court found her to be a public official at the time of the publication. She was, therefore, required to prove that WTVR acted with actual malice. At trial, she was unable to prove (in the court’s view) that WTVR knew the implications in its story were false, or that it acted with reckless disregard for the truth.