The Virginia Defamation Law Blog

October 21, 2020

Prior Restraints of Defamatory Speech

In Virginia, injunctions are considered an extraordinary remedy and, due to First Amendment concerns, are generally not available to enjoin a person from speaking. Known as “prior restraints,” injunctions against defamatory speech are disfavored and bear a heavy presumption against validity. The Supreme Court has written that “a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them…beforehand.” (See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975)). There are exceptions, however, such as (a) when a defendant’s defamatory speech was uttered in connection with the commission of a separate tort, (b) when a defendant engages in repeated defamation, or (c) when the speech has already been adjudicated to be defamatory.

Although neither the Virginia Supreme Court nor the Fourth Circuit has had the opportunity to consider whether a prevailing defamation plaintiff may obtain an injunction prohibiting the defendant from repeating the speech adjudicated to be defamatory, most courts around the country approve of the practice, reasoning that any other rule “would make an impecunious defamer undeterrable.” (McCarthy v. Fuller, 810 F.3d 456, 462 (7th Cir. 2015)). Earlier this year, the Eastern District of Virginia followed the trend and granted an injunction to restrain the defendant from repeating certain statements held to be defamatory.

September 19, 2020

Personal Jurisdiction in Defamation Cases

by Lee E. Berlik

When filing a defamation lawsuit against an individual, you need to select a court that has personal jurisdiction over the defendant. A Virginia court doesn’t necessarily have the authority to adjudicate a case against a resident of another state with no connections to Virginia. To determine whether a court has personal jurisdiction over a particular defendant, look first to Virginia’s “long-arm statute” to see whether any of its provisions apply. (The long-arm statute is so named because it lists the circumstances under which Virginia can extend a “long arm” to grab a resident of another state and hale him into a Virginia courtroom). If the long-arm statute does apply, the court must next ensure that exercising personal jurisdiction over that defendant would not violate the Due Process Clause of the United States Constitution. This generally means that to acquire personal jurisdiction over a non-resident defendant in a defamation case, the defendant must have purposefully directed his defamatory statement to a Virginia audience. Absent such purposeful activity, the court would likely find that haling the person into Virginia would offend “traditional notions of fair play and substantial justice,” and would therefore be unconstitutional.

To determine whether specific jurisdiction exists in a particular case, relevant considerations include:

the extent to which the defendant purposefully availed himself of the privilege of conducting activities in Virginia;
whether the plaintiff’s claims arise out of those activities directed at Virginia; and
whether the exercise of personal jurisdiction would be constitutionally reasonable.

August 29, 2020

Virginia’s Fair-Report Privilege

by Lee E. Berlik

In Virginia, the right of the media to report freely and fairly on the operations of the government is sacrosanct. Reporters and news organizations that report on government activities are shielded from defamation claims by a “fair report privilege” that applies so long as the publication is a “fair and substantially correct statement of the transcript of the record.” (See Alexandria Gazette Corp. v. West, 198 Va. 154 (1956)). The privilege protects “press reports of official actions or proceedings, so long as the report was accurate and either complete or fairly abridged.” (See Chapin v. Knight-Ridder, Inc., 993 F.3d 1087, 1097 (4th Cir. 1993)). Everyone has a right of access to public records, and the fair report privilege makes it easier for the media to communicate the information contained therein to the public so that the government can be held accountable.

Some courts view the fair report privilege or “reporter’s privilege” as an exception to the republication rule. Normally, a person who repeats a defamatory statement is liable for republishing it, just as if he or she were the original speaker. Where a reporter repeats a defamatory statement made at a proceeding covered by the fair report privilege, however, no republication liability will attach provided the report is a fair characterization of what was originally said. If a media account of a government proceeding is fair and accurate, the publisher will be protected even if statements made at the proceeding and repeated in the publication were false and defamatory.

July 19, 2020

You Are Entitled to Your Opinions

by Lee E. Berlik

As often repeated on this blog, the expression of an opinion is protected by the First Amendment and cannot form the basis of a defamation claim. “It is firmly established that pure expressions of opinion are protected by both the First Amendment to the Federal Constitution and Article I, Section 12 of the Constitution of Virginia and, therefore, cannot form the basis of a defamation action.” (See Williams v. Garraghty, 249 Va. 224, 233 (1995)). What’s an opinion? Generally speaking, it’s a relative statement told from the speaker’s personal perspective that isn’t susceptible of being proven true or false. It’s a statement that can’t reasonably be interpreted as conveying actual facts about a person. If a jury instruction is worded in such a way as to allow for the possibility that the jury will find a defendant liable for defamation based on a statement of opinion, that verdict will likely be set aside or reversed. People are entitled to their opinions, no matter how negative or disparaging they might be; you can’t go around suing everyone who criticizes you (not successfully, anyway) unless that criticism includes defamatory falsehoods in addition to the negative opinions being expressed.

It isn’t always easy to distinguish statements of fact from statements of opinion, and lawyers get this wrong all the time. The latest decision of the Virginia Supreme Court to deal with this issue is the case of Amanda C. Padula-Wilson v. Scott David Landry, decided May 14, 2020. The plaintiff was a mother of three children involved in custody and visitation proceedings. When the custody hearing didn’t go as she had hoped, she sued one of the therapists for defamation. (She brought numerous other claims as well in a complaint containing 276 numbered paragraphs, but those claims are outside the scope of this blog). The trial court dismissed the claim, finding that the therapist’s statement was protected by both qualified privilege and absolute judicial privilege. The Virginia Supreme Court granted an appeal, but ultimately agreed with the trial court that the claim was not actionable and affirmed the dismissal.

June 20, 2020

The Defamation Per Se Categories Are Irrelevant to Non-Defamatory Statements

by Lee E. Berlik

In cases of defamation per se in Virginia, successful plaintiffs can recover “presumed” damages even if they are unable to prove exactly how their reputations were harmed and to what extent. For example, defamatory statements that impute to the plaintiff an unfitness to perform the duties of her job would be considered defamatory per se because it is widely understood and accepted that a serious and false accusation about somebody’s ability to perform one’s job would inevitably cause compensable harm. What many don’t realize, however, is that the defamation-per-se categories presuppose that the underlying statement satisfies the elements of actionable defamation. If a statement doesn’t qualify as defamation, then it won’t qualify as defamation per se, even if it seems to fit into one of the per-se categories. If Dave says about Paul, a chef at an upscale restaurant, “Paul is the worst chef in the United States and I wouldn’t feed his disgusting dishes to my worst enemy’s dog,” the fact that the statement suggests Paul is unfit to perform the duties of his job does not make the statement defamatory per se. This particular statement would not be actionable because it reflects only Dave’s personal opinion. Defamation per se is a specific type of actionable defamation, not a substitute for it.

Defamation per se is not a separate tort. The tort is called defamation, and defamation per se is just a particular type of defamation. Lawyers get this wrong all the time, assuming erroneously that any statement that, say, imputes to the plaintiff an unfitness to perform the duties of a job or a lack of integrity in the performance of those duties, automatically qualifies for a multi-million-dollar defamation-per-se case. Did a co-worker tell your boss that you engaged in unprofessional or unethical conduct? Sure, a statement like that might be designed to convey that you are unfit to perform the functions of your job, but it takes more than that to bring a valid claim for defamation per se.

May 15, 2020

Quasi-Judicial Immunity Protects Prosecutors Only When Performing Judicial Functions

by Lee E. Berlik

Thinking about suing the prosecuting attorney for defamation because the false criminal charges he brought against you damaged your reputation and were ultimately dismissed? Well, don’t. Just like you can’t sue a judge who finds you guilty, you generally can’t sue a prosecutor for maligning your reputation in the course of a criminal prosecution performed in good faith, even if the charges are ultimately dropped or dismissed. Both judges and–though to a lesser extent–prosecutors are immune for their official acts associated with the judicial phase of the criminal process. Statements made by prosecutors outside the scope of their judicial functions, however, are fair game for defamation suits.

Yesterday, the Virginia Supreme Court clarified the law in this area by holding that although a Commonwealth’s Attorney enjoys quasi-judicial immunity for acts taken within the scope of their duties and intimately associated with the judicial phase of the criminal process, this immunity does not extend to statements made by a Commonwealth’s Attorney outside the confines of a judicial proceeding. The court held that a Commonwealth Attorney’s former administrative assistant could pursue a defamation claim against her former boss based on her allegation that he made false public statements about the reasons for her termination. These statements were not made in the course of performing any judicial or quasi-judicial function, so they were not entitled to immunity.

April 7, 2020

Virginia Judge Finds Amber Heard Republished 2016 Accusations with 2018 Op-Ed

by Lee E. Berlik

Most of the attention being paid to Johnny Depp’s defamation suit against Amber Heard has been about the fact he brought it in Virginia rather than in California where both of them live. Most speculate Depp chose Virginia due to the fact its anti-SLAPP law is more hospitable to celebrities and public figures than California’s. He has already been rewarded with a ruling permitting the case to remain in Virginia even if all potential witnesses and evidence are located in California. If that ruling wasn’t enough to lead to the supposition that this case is destined to be decided by the Virginia Supreme Court rather than the Circuit Court of Fairfax County, we now have another interesting ruling in an area in which there’s not a lot of controlling precedent: what it takes to “republish” a defamatory statement and thereby re-start the running of the one-year statute of limitations. That last time Virginia saw a controversial ruling involving the republication doctrine was in Eramo v. Rolling Stone, which was settled shortly after it was appealed. If I had to guess, I would predict that the next Virginia Supreme Court opinion dealing with republication is going to be Depp v. Heard (or, rather, Heard v. Depp).

For those not already aware, Johnny Depp is suing his ex-wife, actress Amber Heard, for an op-ed she wrote for The Washington Post at the end of 2018. The article, entitled “Amber Heard: I spoke up against sexual violence—and faced our culture’s wrath. That has to change,” does not identify Depp by name but, according to Depp, nevertheless implied to readers that Depp is a domestic abuser. In particular, he took issue with the following statements: (1) “I spoke up against sexual violence—and faced our culture’s wrath.” (2) “Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.” (3) “I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.” and (4) “I write this as a woman who had to change my phone number weekly because I was getting death threats. For months, I rarely left my apartment, and when I did, I was pursued by camera drones and photographers on foot, on motorcycles and in cars. Tabloid outlets that posted pictures of me spun them in a negative light. I felt as though I was on trial in the court of public opinion—and my life and livelihood depended on myriad judgments far beyond my control.” The Fairfax County Circuit Court held that with the exception of statement #4, these statements were sufficient to imply to readers that Depp is a domestic abuser, considering the couple’s highly publicized divorce in 2016. Key to this conclusion was the court’s determination that the 2018 op-ed amounted to a republication of Heard’s direct accusations against Depp back in 2016.

March 29, 2020

How Republication Doctrine Affects Single-Publication Rule

by Lee E. Berlik

Under the single-publication rule, a defamatory statement posted online will be treated as a single publication, made at the time of posting, regardless of when and how many people actually view the content. Without such a rule, Virginia’s one-year statute of limitations would be rendered meaningless, because a new cause of action would arise each time a new person clicked a link leading to defamatory content, even if that were to occur 10 or 20 years from the date the material was originally uploaded. At the same time, however, Virginia law imposes liability against those who “republish” a defamatory statement, even if republication occurs after the statute of limitations has run on the original statement. When pursuing libel remedies for a statement uploaded to the internet over a year ago, consider whether the statement has been republished by anyone within the past 12 months.

This approach was tried, albeit without success, by the plaintiff in Svetlana Lokhova v. Stefan A. Halper. Ms. Lokhova is a Russian-born British historian and author whose work has focused on the Soviet intelligence service. She had some contact with former National Security Adviser Michael Flynn back in 2014–minimal contact, according to the complaint. She says she met him briefly at a dinner in England and exchanged only a few emails afterwards. Various press accounts in 2017 noted that certain individuals had expressed concern upon learning that the head of the Defense Intelligence Agency appeared to have a friendly relationship with a Russian woman with alleged ties to Russian intelligence–surmising among other things that such a connection could make Flynn susceptible to extortion. One example cited in the complaint is this passage from a New York Times article:

The informant also had contacts with Mr. Flynn, the retired Army general who was Mr. Trump’s first national security adviser. The two met in February 2014, when Mr. Flynn was running the Defense Intelligence Agency and attended the Cambridge Intelligence Seminar, an academic forum for former spies and researchers that meets a few times a year. According to people familiar with Mr. Flynn’s visit to the intelligence seminar, the source was alarmed by the general’s apparent closeness with a Russian woman who was also in attendance. The concern was strong enough that it prompted another person to pass on a warning to the American authorities that Mr. Flynn could be compromised by Russian intelligence, according to two people familiar with the matter.

February 29, 2020

Must Overcome Qualified Privilege When Suing Your Employer for Defamation

by Lee E. Berlik

In Virginia, employers can fire their employees for any reason or no reason at all, subject to certain limited exceptions. Employers aren’t required to articulate a reason for letting go an employee (see Johnston v. William E. Wood & Assocs., 292 Va. 222, 225 (2016)), but they often do anyway. As you might expect, the employees getting fired don’t always agree with the reasons being offered for the termination. A common response of disgruntled employees is to sue their former employer not only for wrongful termination but for defamation as well, theorizing that their reputation was harmed as the result of false accusations made about them. This approach rarely succeeds.

In a ruling from earlier this month, a federal court threw out an employee’s defamation claim based primarily on two concepts: lack of publication, and qualified privilege. Publication refers to the requirement that an actionable statement be transmitted to some third person so as to be heard and understood by such person. Qualified privilege refers to the special protection afforded to defamatory statements made in certain contexts (like the context of a performance review or exit interview).

January 23, 2020

Political Commentary Protected By First Amendment

by Lee E. Berlik

Hey, all you politicians from around the country who would bring your defamation lawsuits here in Virginia because you’ve been told it’s a plaintiff-friendly jurisdiction: just because our anti-SLAPP laws may not be as robust as they are in some other states (and that may be about to change: see House Bill 759) doesn’t mean that the First Amendment doesn’t afford protection to political commentary and opinion. Even in Virginia, a person’s personal opinions regarding a politician or celebrity are immune from defamation claims, no matter how insulting or derogatory those opinions may be. You knew when you ran for office that there would be a lot of public discussion about your behavior; the occasional inadvertent factual error comes with the territory. Politicians are expected to have skin thick enough to withstand public criticism.

Not all of them do. Much has been written about the Virginia lawsuits filed by California Congressman Devin Nunes, but today I want to discuss Joseph D. Morrissey v. WTVR, LLC. Joe Morrissey previously served as the leading prosecutor for the City of Richmond, Virginia, and is a former member of the Virginia General Assembly. As such, he is a public figure. He filed a defamation lawsuit against WTVR, LLC d/b/a CBS 6 and its reporter, Mark Holmberg, based on this video segment it ran back in 2016. Morrissey claimed the video made him appear unfit to serve as mayor and portrayed him as a “stupid liar, who was a sex crazed maniac.” In the video, Holmberg refers to Morrissey as a “fool” and a “clown” and stated that the Virginia State Bar was “coming after him.” Morrissey demanded $1,350,000 in damages.