Political Commentary Protected By First Amendment

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.

The court was unimpressed and dismissed the case–not pursuant to an anti-SLAPP statute, but because the video at issue was mere political commentary, and because the portions that were factual in nature were apparently true or substantially true. Here’s a selection of the allegedly false statements Morrissey took issue with:

  1. “During the past couple of years, Richmond has made national news and international news as a cool place to live, to visit, to play and party. Now we’re making national news because of this fool?”
  2. “[Morrissey] was lying to me then. He’s lied to the investigators and everybody else in this case. That’s why the state bar is coming after him, again.”
  3. Morrissey “famously and stupidly published a plantation style ‘Gone with the Wind’ photo of himself and his wife”
  4. “Do we really want to elect this clown, this nonstop, one ring circus, this liar? Or do we want to elect somebody that’s gonna lift us up to the heights that Richmond so richly deserves?”

Morrissey argued that Statement #1 was the product of “an overt desire to discredit and destroy Joe’s reputation for being extremely intelligent.” He argued Statement #2 was designed to destroy his reputation “for honesty and integrity.” And he claimed the third statement carried “racial implications.”

The court found that the video segment was clearly intended as commentary and opinion, not as factual reporting. A conspicuous orange footer labels the entire presentation “Mark’s commentary.” The news anchor introduced the segment with, “Here’s Mark’s report and commentary.” At the end of the video, Holmberg states, “That’s my take. Love to hear yours on WTVR.com.” The court found these contextual clues significant because capitol-32309_960_720-300x190the First Amendment gives extra protection to the media when reporting on public figures running for public office.

The court could have stopped its analysis there, as statements of opinion are not actionable as defamation. But it went on to hold that even if the statements included a factual component, the facts conveyed by the video were substantially true. Normally courts don’t look outside the pleadings on a motion to dismiss, but the court noted that it was appropriate to do so here considering the evidence “was integral to and explicitly relied on in the complaint.” (See Am. Chiropractic v. Trigon Healthcare, 367 F.3d 212, 234 (4th Cir. 2004)).

The court looked to items in the public domain such as the Virginia Supreme Court’s opinion in Morrissey v. Virginia State Bar, 829 S.E.2d 738 (Va. 2019), to confirm that Holmberg’s accusations were factually accurate. The opinion, which affirms the revocation of Morrissey’s law license, references Morrissey’s “long and notorious book” of disciplinary history with the Virginia State Bar and confirms that Morrissey was convicted of contributing to the delinquency of a minor by engaging in a sexual relationship with a juvenile female and that he made false statements concerning that relationship. The opinion concludes that “the facts in the record justify a finding by clear and convincing evidence that Morrissey’s violation of a criminal statute and the attendant circumstances call into question his honesty, trustworthiness, and fitness to practice law.”

As for the “Gone with the Wind” photo, the court disagreed that Holmberg’s use of it implied that Morrissey was a racist. “The apparent import of Holmberg’s display of the photo,” the court wrote, “was to demonstrate his view of Morrissey’s judgment. As with any political commentary, a reader could draw a defamatory inference if they were so inclined, but nothing said by Holmberg necessarily kindled a suggestion of racism.”


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