Statements of pure opinion are protected by the First Amendment and are not actionable as defamation. Whether an alleged defamatory statement is one of fact or opinion is a question of law to be decided by the court, not the jury. It is also for the trial judge (and not the jury) to determine whether a particular statement may support a defamation action. At the same time, however, statements alleged to be defamatory must be evaluated in context, along with all accompanying statements, and cannot be considered in isolation. (See Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40, 48 (2009)). This is all black-letter defamation law, but courts have struggled with the question of how exactly to instruct a jury considering a defamation claim based on a statement that includes both statements of fact and expressions of opinion. Today we have a new opinion offering some guidance. (Full disclosure: my firm was involved in the case).
Handberg v. Goldberg involved a dispute between a Loudoun County resident and The Morgan Center, a provider of educational advocacy services. The Morgan Center (run by Dr. Felicia Goldberg) kept Mr. Handberg’s debit card on file and would seek authorization from him prior to charging it for various services. Billing disagreements arose and Handberg eventually sent an email to his son’s school informing them that Dr. Goldberg no longer represented his son and including various details about the parties’ billing dispute. Dr. Goldberg sued Mr. Handberg for defamation based on this email, identifying 11 specific statements she believed were defamatory. Among those 11 statements were these three:
- “That ‘given the change in behavior [he] saw on this case, [he] would not recommend that LCPS agree to reimburse advocacy services in the future, given the advocate’s role in the negotiation and their conflict of interest;’”
- “That ‘in the case of the Morgan Center and Dr. Goldberg, they could not resist the temptation to cash in on what they perceive as a windfall;’” and
- “That ‘I don’t think this is in the students [sic] interest or LCPS interest.’”
The trial court correctly ruled on demurrer that these three statements were expressions of opinion and therefore not actionable. At trial, the entire (unredacted) email was admitted in evidence. When it came time to instruct the jury, the trial court did not inform the jury that the court had already ruled that several statements in the email were not actionable or that it could not base its verdict on any of these statements. Instead, the jury was simply asked to consider the email in its entirety. It entered a verdict in favor of Dr. Goldberg, but the Virginia Supreme Court reversed based on this improper instruction.
The problem with the jury instructions was that they permitted the jury to base its defamation verdict on statements of opinion. The three statements of opinion were not redacted from the email, and the jury was not asked to complete a special verdict form identifying which statements in the email they found actionable. Neither of these things is necessarily required, the Court held, but since there was no way to determine whether the verdict was based on the three statements that had been dismissed on demurrer, the verdict could not stand. Trial courts are required to perform a “gatekeeping function” to prevent juries from considering non-actionable statements, and the trial court failed in this regard.
The Court offered the following guidance for crafting jury instructions in defamation cases involving mixed statements of fact and opinion:
Trial courts will have to decide on a case-by-case basis whether an unredacted document containing both actionable statements of fact and statements of mere opinion should be presented to the jury for purposes of providing context for the actionable statements of fact, as was done with the email in the present case; or whether only the actionable statements of fact should be presented for the jury’s consideration. See, e.g., Raytheon Tech. Servs. Co., 273 Va. 292 at 304-06 (holding that three of five statements at issue on a defamation claim, which were statements of mere opinion in an employee performance evaluation, should not have been submitted to the jury). Either way, the trial court must specifically instruct the jury as to the actionable factual statements that the jury can consider in determining whether the defendant defamed the plaintiff—as opposed to statements of mere opinion which cannot be a basis for a defamation claim.
Notably, the Court criticized its own 1987 holding in Richmond Newspapers, Inc. v. Lipscomb (234 Va. 277) in which the Court rejected an argument that the trial court “should have winnowed out obviously non-defamatory material in its instructions to the jury” and held that “there is no duty upon a trial court to segregate potentially defamatory from non-defamatory material in granting instructions to the jury.” That holding was an “aberration,” the Court says today.
Setting aside my obvious bias, this is a good ruling. I would add that in implementing this holding going forward, trial courts should be careful not to blindly adhere to the Virginia Model Jury Instructions, as they (in their current form) do not direct juries to take context into account when determining meaning. If the “statement” at issue in the case consists of several paragraphs of mixed fact and opinion, it’s not enough to just ask the jury to decide whether the statement was made and whether it was true or false. If the jury is permitted to view and consider expressions of opinion, it must somehow be communicated to the jury that those non-actionable portions of the statement are to be considered for context and meaning only–to shed light on the proper interpretation of the accompanying statements of fact–and cannot be the sole basis for a finding of defamation liability.
There are a number of ways trial courts might choose to present mixed statements of fact and opinion to a jury. Statements of opinion that don’t add context or meaning to the statements of fact can be redacted. Or the jury can be given a special verdict form and asked to identify which specific statements they found defamatory, to ensure the verdict is not based on a non-actionable expression. The jury can be instructed that certain statements (i.e., those of opinion or rhetorical hyperbole) are non-defamatory and are to be considered solely for context. In appropriate circumstances, a court may want to instruct the jury to consider and decide whether certain statements–even those phrased as apparent opinions–should be interpreted instead as implied assertions of fact. What trial courts can’t do is instruct the jury in such a way as to permit the jury to find defamation liability based on statements that are not actionable as a matter of law. If that happens (as it did in the Handberg case), the instructions are defective and the verdict may be reversed on appeal.