When a party or an attorney files an objectively baseless defamation complaint, the trial court is required to impose sanctions on one or both of them, including but not limited to an award of attorneys’ fees. This is the main takeaway from Nestler v. Scarabelli decided a few days ago by the Virginia Court of Appeals. Litigation attorneys in both state and federal court are required to adhere not only to codes of ethics but also to procedural rules that prohibit using litigation for an improper purpose. Under Virginia Code § 8.01-271.1, any time a lawyer signs and files a complaint on behalf of a client, the lawyer is certifying that “to the best of his knowledge, information and belief, formed after reasonable inquiry, [the complaint] is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and…is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” The court found that Dr. Scarabelli violated that rule by filing a defamation claim against Dr. Nestler that had no reasonable chance of success. Consequently, the trial court was not only permitted but required to impose an appropriate punishment.

MCV Associated Physicians (“MCVAP”) hired Dr. Tiziano M. Scarabelli as the Virginia Commonwealth University Health Systems’ Director of Cardio-Oncology on a one-year contract. After only a few months, MCVAP had received several complaints from staff members about Dr. Scarabelli’s alleged lack of professionalism. MCVAP also received complaints about Dr. Scarabelli from interns, residents, and patients, some of which appeared to constitute allegations of sexual harassment, such as claims that Dr. Scarabelli was “very touchy feely,” would put his hands on women’s thighs, and would often comment on the physical attractiveness of women. There were also claims he was just rude, “always putting down other physicians.” After a year, MCVAP decided not to renew Dr. Scarabelli’s contract.

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The jury trial in the libel and slander case of Dominion Voting Systems v. Fox News Network is now less than two weeks away. The consensus among defamation law experts seems to be that the “big issue” in this case is whether Fox acted with “actual malice,” a requirement established by the seminal First Amendment case of New York Times v. Sullivan back in 1964. Public figures can’t win defamation suits unless they can prove the defendant made a false statement about them with actual malice, generally defined as knowledge of falsity or, at a minimum, “reckless disregard” for the truth, which is the equivalent of a high degree of awareness that the statement at issue is probably false. In most cases, that’s a very difficult thing to prove, and many defamation cases fail due to an inability of the plaintiff to prove actual malice. Dominion’s case against Fox, however, is anything but ordinary. From my perspective, the only real chance Fox had of winning this case at the trial level was not to convince the jury that it failed to act with actual malice (an unlikely prospect) but rather to convince the jury that it was merely broadcasting newsworthy allegations made by others and that it was not necessarily endorsing those allegations. In a recent pretrial ruling, however, the court found that a reasonable jury could only conclude that Fox did, in fact, endorse the conspiracy theories and adopt the accusations against Dominion as its own. The jury won’t be allowed to even consider the issue. That means this case is essentially done. Dominion wins. The only question is how high the judgment amount will be.

Prior to the court’s recent ruling on Dominion’s motion for summary judgment, Fox had a glimmer of hope. After all, Dominion is the party with the burden of proof, not Fox. It is Dominion that needs to prove that the statements made about Dominion on Fox’s broadcasts were false and that Fox is responsible for making them, even if the statements were made only by guests on Fox programming. Even with all the media coverage about those behind-the-scenes text messages by Fox hosts in which they reveal their true feelings about the outlandish and unsupported accusations against Dominion being made by the likes of Sidney Powell and Mike Lindell, at least they could argue to the jury that when a member of the President’s legal team makes a public accusation that a manufacturer of voting machines was complicit in a giant scheme to flip votes and steal an election, that is a newsworthy event that Fox should cover, regardless of whether the accusation is true or false; the accusation itself is news. Sadly for Fox, that ship has sailed. The court has already entered partial summary judgment establishing not only that the statements about Dominion made by Fox guests were false, but that Fox is responsible for republishing those statements as if they were Fox’s own accusations against Dominion.

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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.

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It’s never a good idea to slander another person, but in some circumstances a privilege may apply to a defamatory statement that exempts the statement from any libel or slander claims. Statements made on the witness stand in a legal proceeding, for example, are immune from defamation claims (even if they are false). The justice system is designed to sort out which witnesses are lying and which are telling the truth; it doesn’t permit an aggrieved individual to sue witnesses who offered unfavorable testimony during the trial. In other contexts, a “qualified” privilege may apply to the communication. In these situations, the privilege is not absolute and will be forfeited if abused. A qualified privilege generally attaches to communications between persons on a subject in which the persons share an interest or duty. For example, consider the employee performance review, where the person completing the review form and the person receiving it both share an interest or duty in the review being conducted. In situations like these, the reviewer is generally permitted–and expected–to include whatever negative feedback may be appropriate without having to worry about getting sued by the employee for defamation. However, this privilege is not absolute; a qualified privilege does not give the reviewer a license to maliciously defame another individual with impunity.

Defamatory words uttered with malice will not be protected by qualified privilege. This means that a plaintiff may often be able to pursue a defamation claim even when the claim is based on a statement made in a privileged context. A plaintiff can overcome the qualified privilege with clear and convincing evidence that the defendant made the statement with “malice” (not to be confused with “actual malice.”) Malice in this context can be shown in a variety of ways, such as a showing that (1) the statements were made with knowledge that they were false or with reckless disregard for their truth; (2) the statements were communicated to third parties who have no duty or interest in the subject matter; (3) the statements were motivated by personal spite or ill will; (4) the statements included strong or violent language disproportionate to the occasion; or (5) the statements were not made in good faith. (See Cashion v. Smith, 286 Va. 327, 339 (2013)).

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Defamation law in Virginia and Washington, D.C. is identical in most material respects. Choice-of-law principles usually won’t make much of a difference to the outcome of a defamation case. Both Virginia and D.C. follow the general principles of defamation law that are recognized throughout the United States. There are, however, some notable differences in terms of the specific rules and legal standards that apply to defamation cases. Today’s blog post summarizes some of the key differences that might affect how you choose to present your case or where you intend to bring it.

Defamation Per Se

Virginia recognizes both defamation per se and defamation per quod. In the District of Columbia, the law in this area is less clear. Defamation per se is a type of defamation that is considered so damaging to a person’s reputation that it is automatically assumed to be defamatory, without the need for the plaintiff to prove actual damages. In Virginia, defamatory statements qualify as “per se” defamatory if they (1) impute the commission of a crime involving moral turpitude; (2) impute that the plaintiff is infected with a contagious disease which would exclude the party from society; (3) impute an unfitness to perform the duties of a job or a lack of integrity in the performance of those duties; or (4) prejudice the party in his or her profession or trade. In the District, there isn’t a lot of authority recognizing defamation per se in any situation other than one involving a false statement relating to the commission of a serious crime. (See, e.g., Raboya v. Shrybman & Assocs., 777 F. Supp. 58, 59 (D.D.C. 1991) (“In the District of Columbia, in order to be actionable as libel per se, the contents of a defamatory publication must “impute…the commission of some criminal offense for which [the Plaintiff] may be indicted and punished, if the charge involves moral turpitude and is such as will injuriously affect [the Plaintiff’s] social standing, or,…the question is whether, from the language attributed to defendant, there is something from which commission of a crime can be inferred.’”)). Thus, a plaintiff contemplating a defamation claim based on a false statement prejudicing the plaintiff in his or her profession would usually be better off bringing the claim in Virginia, where damages may be presumed. Continue reading

You may have heard that truth is a complete defense to a claim of defamation. That’s essentially true, but here in Virginia, it’s more accurate to say that a plaintiff must prove falsity as part of his case in chief. Whether a statement claimed to be defamatory is true or false is normally an issue reserved for trial to be determined by a jury. That’s because it’s an issue of fact (as opposed to a question of law, which the judge can decide without deference to the jury). This means that in most cases, a defendant won’t be able to get a defamation claim dismissed on demurrer (i.e., thrown out at the very beginning of the litigation process, without the need for a trial) on the basis that the alleged defamatory statement is true and therefore not actionable. Trials are usually necessary to determine whether the statement is, in fact, true. Sometimes, however, the truth of the allegedly defamatory statement is apparent from the face of the pleadings. When this is the case, trial courts have been known to sustain demurrers.

A recent example comes from the County of Dinwiddie, Virginia (population 28,000). The facts of Dennis F. Harrup III v. Collison F. Royer et al. go something like this. Dennis Harrup owns Harrup Real Estate, LLC (“HRC”). HRC took out a loan of roughly one million dollars with Blue Ridge Bank, secured by a deed of trust (i.e., mortgage) establishing liens on several properties located throughout Richmond, Petersburg, and Lancaster. The deed of trust contained a provision restricting HRC’s right to sell the secured properties. In contravention of this restriction, HRC managed to sell one of the houses. A title search, for reasons that aren’t clear, did not reveal the liens held by Blue Ridge Bank. In the course of the sale, Mr. Harrup signed a “no financing agreement” indicating that he owned the house personally and that there were no liens or encumbrances against it. The documents clearly showed that both of these assertions were false–the property was owned by HRC, not Harrup personally, and there was a substantial lien against it held by Blue Ridge Bank.

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When relationships go bad, it’s not uncommon for one of the parties to seek to embarrass or harm the other by “exposing” the person for the horrible human being that he or she is. I see this most often in the form of revenge porn, social media bullying campaigns, and in efforts to contact the other person’s spouse or employer to disrupt those relationships and possibly get the other person fired. I’ve written earlier about how the First Amendment may protect informing another’s employer of harmful information if those allegations are completely true, but doing so carries risk. If the employer acts on the information and the employee suffers an adverse employment action, the whistleblower may face liability for defamation and tortious interference, particularly if the employee can convince the court that the statements or their implications are untrue.

Consider the case of Selamawit Teka* v. Jonathan Jack. In August 2021, Teka sued Jack in federal court, complaining that “Jack engaged in a course of unlawful and unauthorized contact with Teka’s employer, wherein he publicized and exposed personal details of Teka’s private life to those she works for without cause, reason or justification. In these communications, Jack publicized and exposed the contents of private social media conversations, and other details of Teka’s personal life, dealings, conversations and activity, to those with no legitimate interest or concern in her private affairs. Jack defamed Teka and violated her right to privacy with the intent to insult, humiliate and embarrass Teka, and get her fired.” The court was not impressed with the invasion-of-privacy claims, but it was persuaded that Teka had alleged a plausible cause of action for defamation and denied Jack’s motion to dismiss that claim.

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Last year I wrote a post about how it can be defamatory for an employer to misrepresent the reasons for an employee’s termination. If an employer says that an employee was fired because of reasons X, Y, and Z, the employee may have a valid defamation claim even if statements X, Y, and Z are all completely true. If the reason for the employee’s termination had nothing to do with those pretextual reasons, then the employer’s statement, taken as a whole, is false and therefore potentially defamatory. A case came across my desk today involving a very similar issue: whether a university can be held liable for defamation when announcing that a student’s dismissal from a degree program was due to certain seemingly valid and legitimate concerns based on the student’s failure to pass a required test, when the student’s dismissal was actually due to something else entirely. Consistent with earlier rulings, the court found that on these alleged facts, the plaintiff had presented a viable defamation claim.

The case is John Doe v. Shenandoah University. The alleged facts of the case, according to the opinion, go something like this. The plaintiff was born in Nigeria and emigrated to the United States, where he is now a permanent resident. He enrolled in the Physician Assistant Studies Program (“PA Program”) at Shenandoah University in Winchester, Virginia. At some point after his enrollment, he developed Social Anxiety Disorder, a health condition characterized by extreme fear of social settings. He requested and received various accommodations due to this disorder, such as (a) time and a half for all quizzes and examinations and (b) testing in a quiet, distraction-free environment. One test he was required to pass as part of the PA Program was the Objective Structured Clinical Exam (“OSCE”), a “time-limited practical exam conducted at the end of certain semesters in the PA program” consisting of “a set of predefined stations related to patient care.”

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The Depp v. Heard defamation trial in Virginia isn’t over yet, but everyone seems to have already picked a side. Whether you’re one of the 7.5 billion people viewing #justiceforjohnnydepp on TikTok or one of the 26 million checking out #justiceforamberheard, chances are that if you’re interested in the case, you have an opinion about which side should win. And if we’re talking odds here, you’re probably on Team Johnny. But how many of you actually know what this case is about? Contrary to what all the viral memes would have you believe, the case isn’t actually about which party was “the abuser” in the relationship. This case isn’t about men’s rights, #MeToo, or #BelieveWomen. It is a lawsuit involving competing claims of defamation that will require a jury of seven people to make very specific findings of fact on a limited number of issues. If the jury does its job and focuses solely on answering the questions the judge will soon instruct them to answer, there is a good chance that both Johnny and Amber will lose this case and return to their California homes empty-handed. From what I’ve seen of the evidence so far, neither side has a particularly strong case.

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You’ve heard by now that companies like Facebook and Twitter are not liable for defamation when their platforms are used to circulate false and defamatory content. The law most often cited as the source of this protection is known as Section 230 of the Communications Decency Act. Section 230 provides protection to companies that supply the platform, forum, or other technology that others can use to communicate information, provided the companies are not involved in creating the content that gets posted on their sites. Section 230 generally allows such companies to moderate and delete content without losing immunity, but not create content themselves. Although Section 230 protects internet companies from liability as a publisher of speech, it does not protect them in situations where liability is sought on some other theory, such as intellectual property infringement or liability as the seller of a defective product.

In the case of Tyrone Henderson v. The Source for Public Data, the Eastern District of Virginia was faced with the question of whether Section 230 could apply to claims raised under the Fair Credit Reporting Act. The issue had apparently never come up before, but the court readily determined that Section 230 did apply because the defendants were being sued for publishing content created by others and were not involved in creating that content themselves. Section 230 is not limited to defamation claims and can be invoked in any case where its requirements are satisfied.

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