Criminal defense attorney Larry L. Archie received a good bit of publicity recently over his slogan, “Just Because You Did It Doesn’t Mean You’re Guilty,” as shown below on a North Carolina billboard. Yesterday, the Virginia Supreme Court issued a ruling that stands for a similarly counterintuitive proposition: despite the widespread notion that “truth is a complete defense” to defamation claims, you can’t always escape liability for slander even if everything you said was literally true. Even where the words, when read out of context, are literally true and defamatory meaning is not immediately apparent, Virginia law permits a plaintiff to maintain an action for defamation where innuendo would lead a reasonable reader to infer a defamatory meaning.
The case of Pendleton v. Newsome involves the heartbreaking story of a seven-year-old child with a severe peanut allergy who ingested a peanut at school and died. According to the allegations in the complaint, the child’s mother, Laura Mary-Beth Pendleton (the plaintiff) had informed the school staff earlier in the school year about her daughter’s severe allergy to peanuts, that she provided the school with specific instructions, signed by the child’s pediatrician, about how to treat her daughter in the event of an emergency, and that she brought in an “EpiPen Jr.” for the school to keep on hand to inject Epinephrine if needed. She alleges she was told by the school’s clinic assistant that they already had all the equipment they needed and didn’t need the EpiPen.
When the child died and the story received widespread publicity, several school officials gave statements to the press that deflected responsibility and emphasized the importance of parental responsibility, like this one allegedly issued by school superintendent Marcus J. Newsome and posted to the Chesterfield County Public Schools’ website:
Student and staff safety is a top priority. … Earlier this week, a first-grade student at Hopkins Elementary School died. Chesterfield County Public Schools is deeply saddened by the loss of this child and has reached out to her family. … Key…is a parent’s responsibility to provide the school with accurate, timely information; a health emergency plan…and the medicine necessary to execute the plan. … If any one of these items is missing, the doctor’s orders cannot be carried out. The school…relies on parents to follow through.
Ms. Pendleton sued for defamation, arguing that although these statements may be literally true when read in isolation, the circumstances surrounding the statement and the context in which they were made evidenced a malicious intent to divert public indignation from the school’s failures by falsely implying and insinuating that Ms. Pendleton had failed to inform the school authorities of the child’s allergy, failed to furnish a doctor-approved emergency medical plan, and failed to furnish the school clinic with the required medications for use in such an emergency. The trial court thought this was too much of a stretch and dismissed the case. On appeal, however, the Virginia Supreme Court expressed the view that Ms. Pendleton has a valid point, and that words ascribed to the defendants, given their plain meaning, are reasonably capable of conveying the defamatory innuendo alleged. It therefore reversed and sent the case back for a trial.
In cases of implied defamation, context plays a vital role. The court held that if defamatory meaning is not apparent from a literal reading of the statement, stating a valid claim requires a demonstration that the circumstances surrounding the making and publication of the statement could reasonably cause the statement to convey a defamatory meaning to a reasonable reader: “Allegations that such circumstances attended the making of the statement, with an explanation of the circumstances and the defamatory meaning allegedly conveyed, will suffice to survive demurrer if the court, in the exercise of its gatekeeping function, deems the alleged meaning to be defamatory.”
The court noted that “whether the circumstances were reasonably sufficient to convey the alleged defamatory meaning” remains a jury question. This should not be interpreted to mean that whether a statement is actionable as implied defamation is a jury question; it isn’t. The “gatekeeper” function requires the court to first determine in the first instance whether a statement is capable of conveying the alleged defamatory innuendo; if so, it then becomes the province of the jury to decide whether the statement actually conveyed that innuendo. (See my discussion of Webb v. Virginian-Pilot Media Companies, decided last year).
At trial, Ms. Pendleton will have the burden of proving: “(1) that the defendants made the statements alleged in the complaint, (2) that the statements, even if facially true, were designed and intended by the defendants to imply that the plaintiff was responsible for the death of her child, (3) that in the light of the circumstances prevailing at the time they were made, the statements conveyed that defamatory implication to those who heard or read them, and (4) that the plaintiff suffered harm as a result.”
Finally, it is worth nothing that the court specifically rejected a line of reasoning found in the widely cited case of Chapin v. Knight-Ridder, Inc., 993 F.2d 1087 (4th Cir. 1993). In that case, the court held that in defamation-by-implication cases, “the language must not only be reasonably read to impart the false innuendo, but it must also affirmatively suggest that the author also intends or endorses the inference.” The Supreme Court of Virginia rejected this notion, finding that although the speaker must have intended his words to express a defamatory innuendo, his intent can be proved by circumstantial evidence and need not be apparent from the words themselves.