The Virginia Defamation Law Blog

February 6, 2012

Jeremy Mayfield’s Defamation Claims Against NASCAR Heard on Appeal

The Fourth Circuit Court of Appeals is poised to rule on the appeal of NASCAR driver Jeremy Allen Mayfield, who is appealing the dismissal of his case involving claims of defamation, breach of contract, and deceptive trade practices. The trial court had dismissed the case based in large part on contractual release and indemnification provisions, including a release of liability arising from the publication of the results of any substance-abuse test.

Mayfield entered into a written contract with NASCAR in which he agreed to submit to random drug testing. On May 1, 2009, NASCAR asked Mayfield to submit to such a test. He complied and informed David Black, the president of Aegis, the chemical company performing the test, that he had taken Claritin and Adderall just prior to submitting a sample for testing. On May 7, 2009, Mayfield was informed that his test came back positive for amphetamines. After some confusion about the number of samples and whether Aegis tested the correct sample, NASCAR informed Mayfield that he was suspended as a driver and as the owner of a team. The president of NASCAR, Brian France, then held a press conference announcing to the world that Mayfield had been suspended for taking either performance-enhancing or recreational drugs.

After the press conference, Black informed reporters that the positive test result had nothing to do with any over-the-counter medication. As a result of these public statements, Mayfield and his corporate NASCAR team filed suit against NASCAR, France, Aegis, and Black, claiming that they were responsible for publicly defaming him. Mayfield argued in the suit that the statements were “intentional, malicious, reckless and false.”

June 10, 2011

Virginia Defamation Lawyer’s Arguments Rejected in Warren County

by Lee E. Berlik

When SolAVerde’s attorney spoke to the media about his client’s defamation claims against the Town of Front Royal and certain councilmen, he sounded pretty confident. The court, however, disagreed with his arguments and dismissed the Town from the lawsuit, finding it to be immune. The court also dismissed the defamation claims against the other defendants, but left the door open for SolAVerde, a Virginia solar energy company, to amend its claims against them.

The Complaint alleged that the defendants, in effect, accused the owners of SolAVerde of offering a bribe to public officials in connection with the bidding on a contract for a solar energy processing and production facility. According to plaintiff, a member of the Front Royal town council, whom they were unable to identify specifically, leaked a memorandum to the news media that raised the question of whether certain proposed monetary incentives were actually bribes. The plaintiffs sought $30 million in reputational damages.

However, in a May 26, 2011, opinion, Judge Paul Peatross Jr., sitting by designation in the Warren County court, dismissed the defamation claim. He found that the town was entitled to sovereign immunity because whatever the council members had done in connection with the bids and the possible contract, they were making a governmental decision. “The doctrine of sovereign immunity protects municipalities from tort liability arising out of the exercise of governmental functions,” he wrote. Judge Peatross concluded that the acts alleged by the plaintiffs, including the alleged leak of the document, “amount to a governmental function by the Town of Front Royal acting in its legislative capacity regarding the consideration of solar power for the Town of Front Royal,” and that the town is thus immune from defamation liability.

May 25, 2011

In Lawyer’s Defamation Action, Draft Complaint Afforded Absolute Privilege

by Lee E. Berlik

Virginia courts have long held that statements made in connection with judicial proceedings are entitled to absolute protection from defamation liability. To encourage truthfulness in litigation, Virginia public policy has extended an absolute privilege to statements made in a party’s pleadings, statements made during depositions, and to the testimony of witnesses at trial, provided the statements are generally relevant to the proceeding. But what protection, if any, should be afforded to pre-litigation statements, such as those contained in a demand letter to a prospective defendant?

Fairfax Circuit Court Judge R. Terrence Ney recently had the opportunity to consider whether a defamation claim could be based on allegedly defamatory statements made in a draft complaint forwarded to a small group of prospective defendants for purposes of exploring settlement opportunities prior to filing suit. The issue has not yet been decided by the Virginia Supreme Court, and is particularly interesting because the ethical rules that prohibit lawyers from making frivolous claims arguably do not apply to statements made outside a judicial proceeding. As a result, when drafting pre-litigation demand letters, many lawyers are far less assiduous in their fact-checking than they would be when filing an actual pleading with the court.

In a sense, the situation is similar to the question of whether to grant a privilege to a law firm’s statements in a press release announcing a lawsuit. If a complaint contains defamatory statements, they would not be actionable, even if made with knowledge of their falsity, due to the absolute privilege for statements made in judicial proceedings. A press release discussing the lawsuit, however, is made outside the judicial proceeding, so it does not enjoy the same level of protection. Like a press release, a demand letter containing a draft complaint is very closely related to a judicial proceeding, or at least a contemplated one, but is not part of the proceeding itself.

April 21, 2011

Lawyer Review Leads to Defamation Lawsuit

by Lee E. Berlik

Consumer review sites continue to grow in popularity. Sites like Angie’s List, Avvo, and Yelp (to name but a few) allow people to post their experiences with lawyers, doctors, hairdressers, restaurants, roofers, and just about anyone else, and assign a rating to the service provider they used. When used honestly, these sites can provide a benefit to consumers. But they can also provide a mechanism for bogus reviews intended to maliciously destroy a business’s reputation. Here in Virginia, negative reviews are often the subject of defamation lawsuits.

In general, the First Amendment protects expressions of opinions on these sites. All legitimate reviews, both positive and negative, can help consumers come to well-informed conclusions. Negative reviews, however, cross the line if they include false statements of fact. Consumers are free to express unfavorable opinions regarding their experiences with a service provider, but the First Amendment does not allow them to defame the service provider by posting false information.

A Texas lawyer recently filed a defamation action, claiming that a negative review that he received on Citysearch.com was not only derogatory but false and was the result of a conspiracy to defame him, evidently in retaliation for his decision to fire a paralegal at report card.jpg his law firm. Attorney Michael Weston sued his former paralegal and the man believed to be her husband.

March 31, 2011

AP Reporter Accused of Libel by Tweet

by Lee E. Berlik

Did an Associated Press reporter commit a foul against an NBA referee earlier this year by defaming him on Twitter during a league game? On March 14, 2011, National Basketball Association official Bill Spooner filed a federal defamation case against Associated Press sports beat reporter Jon Krawczynski for a brief item that Krawczynski wrote on his Twitter account that suggested Spooner was officiating a game dishonestly. During an NBA game between the Minnesota Timberwolves and the Houston Rockets on January 24, 2011, Krawczynski tweeted (twote?) that Spooner told Minnesota coach Kurt Rambis after an allegedly bad call against a Minnesota player that Rambis would “get it back,” and that Spooner went on to compensate for the incorrect call with a “make-up” call against Houston.

Spooner says that although he had a brief verbal exchange with Rambis about the foul call, he said nothing to the coach about giving anything back to the Timberwolves. His lawsuit, filed in the U.S. District Court for the District of Minnesota, says Krawczynski defamed him by telling Krawczynski’s Twitter followers in effect that Spooner had engaged in a “form of game fixing.” Spooner discusses in his complaint that the NBA was recently caught up in a controversy involving former ref Tim Donaghy, who pleaded guilty in federal court in 2007 after being accused of betting on games that he officiated.

The NBA itself discouraged the lawsuit, although it doesn’t believe Spooner actually cheated either. According to a league spokesman, “We investigated the content of the tweet when it appeared, found it to be without substance, and informed Mr. Spooner that we considered the matter closed. We subsequently advised Mr. Spooner’s lawyer that we did not think suing a journalist over an incorrect tweet would be productive.”

March 24, 2011

“Girls Gone Wild” Defamation Suit Nets $3 Million

by Lee E. Berlik

Kids these days. The use of fake IDs by teens is nothing new, but when that ID contains the name of a real person, and the imposter goes on to do naughty things while posing as someone else, the law of defamation can come into play. And if you’re inclined to post a YouTube video of that identity thief engaged in acts of questionable moral character, you’d better conduct some due diligence to ensure you don’t destroy someone’s reputation. That’s a lesson that Joe Francis, the entrepreneur behind the risqué “Girls Gone Wild” videos, may have just learned as a result of a $3 million default judgment entered against him earlier this month in New Jersey federal court.

In a complicated scenario typical of the Internet age, in 2008 Francis wanted to take advantage of that year’s scandal involving New York Gov. Eliot Spitzer and a prostitute named Ashley Alexandra Dupre. He offered Dupre $1 million to appear in a magazine spread and participate in a promotional tour for “Girls Gone Wild,” but withdrew his offer when he found that he already had useful footage of Dupre from five years before, when she was 17 years old.

After Francis used the footage, Dupre sued him, claiming that she was underage and did not understand the release she had signed. However, Francis was able to come up Fake IDs.jpg with a video of Dupre providing consent to appear in “Girls Gone Wild,” stating that she was 18, and showing the driver’s license of another woman who was of legal age. Dupre then dropped her suit against Francis.

February 19, 2011

Prominent Defamation Lawyers Pursue Sherrod’s Libel Case Against Breitbart

by Lee E. Berlik

Last summer, United States Department of Agriculture official Shirley Sherrod was forced to resign after conservative activist Andrew Breitbart posted online a speech that she had made 23 years before, when she worked for a nonprofit organization. The video that Breitbart posted supposedly showed that Sherrod, who is African American, had engaged in racial discrimination against a white farmer who needed financial assistance. It soon emerged, however, that the video clip that Breitbart placed online was significantly edited, and that in full context, Sherrod emerged as a supporter of equal opportunity rather than as a racist. After all that background was revealed, President Obama took the unusual step of formally and publicly apologizing to her. She was offered her job back, but she declined the offer. Instead, she hired a team of preeminent defamation attorneys to take Mr. Breitbart to court.

On February 11, 2011, Sherrod filed a defamation suit in D.C. Superior Court against Breitbart and two alleged accomplices, alleging that the depiction of her as a racist had caused her financial losses, physical symptoms, and “irreparable reputation and career damage.” Sherrod is seeking compensatory and punitive damages as well as a court order that Breitbart remove the offending material from his blog. Breitbart has not yet formally responded to the lawsuit, but he did say in a statement that he “categorically rejects the transparent effort to chill his constitutionally protected free speech.”

Defamation suits against public figures are never easy. The First Amendment has been interpreted by the Supreme Court for several decades to give a very wide berth to people who criticize public officials or discuss matters of public concern. In general, celebrities or other public figures who sue for defamation cannot win unless they can show that the defendant made the offending statement with “actual malice,” which essentially amounts to knowledge that the defamatory statements were false, or reckless disregard for their truth or falsity.

February 4, 2011

Defamation Lawsuit Exposes Redskins Owner to Ridicule

by Lee E. Berlik

It doesn’t take a defamation expert to see the flaws in the $2 million libel lawsuit filed this week by Redskins owner Dan Snyder against the Washington City Paper. Mr. Snyder took offense at an article titled, “The Cranky Redskins Fan’s Guide to Dan Snyder: From A to Z (for Zorn), an Encyclopedia of the Owner’s Many Failings,” which contains a detailed list of reasons the author considered him a bad owner. Mr. Snyder also disapproved of an image of him, published with the article in question, on which someone had doodled devil horns and a mustache, which Mr. Snyder deemed “an anti-Semitic caricature of himself” which “forced” him to file the lawsuit. Talk about thin skin.

First of all, how ironic is it that Mr. Snyder claims he was forced to bring this lawsuit to protect his reputation and good name, and yet by virtue of suing the newspaper, he has stoked the interest of the media and triggered widespread public scrutiny into his prior activities, vastly increasing the number of people who will seek out and read The Cranky Redskins Fan’s Guide to Dan Snyder? Personally, I’m not a regular reader of the Washington City Paper and would never have known about the alleged defamatory statements had Mr. Snyder not called my attention to them by suing the paper. Mr. Snyder and his lawyers have alerted the otherwise complacent populace to a long list of alleged bad acts by the Redskins owner. Even if he wins the case, will he really have done himself and his reputation any favors by suing an outspoken critic?

But he won’t win. As I explained in an earlier blog post, not just any hurtful or offensive comment will constitute libel or slander upon which a plaintiff could successfully sue for millions of dollars. Defamation liability requires the publication of a false factual statement that concerns and harms the plaintiff or the plaintiff’s reputation. Statements of opinion, regardless of how unfavorable the opinion, are not actionable. Thus, calling Mr. Snyder a failure, likening him to the devil, and referring to the “stain” he supposedly left on the Redskins are all constitutionally protected as free speech.

February 2, 2011

Virginia Supreme Court Declines to Set Aside Defamation Verdict Against County Administrator

by Lee E. Berlik

In Virginia, as in other states, potentially defamatory statements made in official government proceedings receive protection from defamation claims. But some such statements get the benefit of absolute privilege, which means that even a knowingly false statement can’t be the basis of liability, while a larger category of statements receive only a qualified privilege. A qualified privilege gives the plaintiff an opportunity to show that the statement was made with malice — and to recover damages if he or she can prove that it was.

In Small v. Nogiec, the Supreme Court of Virginia examined remarks made by a county assistant administrator during a meeting of the Board of Supervisors of Isle of Wight County, and concluded that only a qualified privilege applies to the statements since they were not made in a legislative context. The court therefore unanimously upheld a jury verdict for the plaintiff.

In March 2007, Alan Nogiec retired from his job as the county’s director of Parks and Recreation. A few months before he retired, the county’s museum was damaged by heavy rains. In May 2007, Assistant County Administrator Patrick Small gave a report at a board meeting about efforts being undertaken to repair the museum. He said that before the storm, information about the likelihood of flooding “had been suppressed” by the parks director and that this “borders on negligence in my opinion.”

November 15, 2010

Defamation Claim Against Virginia Lawyer Goes Forward

by Lee E. Berlik

Statements made by litigants and their attorneys in judicial proceedings cannot form the basis for a defamation action because they are protected by an absolute privilege. But what if an attorney, desirous of increased media exposure, takes copies of what might otherwise be considered slanderous statements and forwards them to the media? Do statements made in judicial proceedings lose their privileged status when republished to third parties? The answer, according to Norfolk judge Charles E. Poston, is that it depends on whether the attorney acted with malice.

In D’Alfio v. Theuer, a sea captain sued a lawyer who had filed at least one lawsuit against him on behalf of a client claiming employment discrimination. The lawsuit, the sea captain contended, contained numerous false and defamatory allegations, such as that the captain had ordered a seaman on his ship to be handcuffed in retaliation for speaking to a newspaper reporter and that he had threatened to put him in a straightjacket. What the captain found particularly troublesome, however, was that the seaman’s lawyer faxed a copy of the lawsuit to the media. He sued the lawyer for defamation.

The lawyer filed a “demurrer” (essentially a motion to dismiss the complaint) on the ground that the allegedly defamatory statements were protected by absolute or qualified privilege. Judge Poston overruled the demurrer and permitted the lawsuit to proceed.