Truth is not always a defense to defamation claims in Virginia. Sometimes a statement that is literally true will nevertheless convey an implied message with defamatory meaning. Virginia thus recognizes claims for defamation by implication in addition to claims for libel and slander made expressly. The latest case to illustrate this principle is Cameron M. Jackson v. Liberty University, currently pending in the Western District of Virginia federal court.
The facts, according to the original complaint, are essentially as follows. Cameron Jackson is a former student and football player at Liberty University, a Christian university in Lynchburg, Virginia. Sarah Browning was on the university’s swim team. Jackson and Browning had been involved in a “casual sexual relationship” for several months. At an off-campus party in August 2015, Browning approached several members of the football team (including Jackson) and performed oral sex on them. Later that night, Jackson and Browning engaged in consensual intercourse in the living room of a friend’s apartment, where others could and did see them.
After rumors began circulating that Browning had been gang-raped by several members of the football team, Liberty University officials interviewed Browning about them. Browning allegedly asked a friend prior to the interview, “Do you think I should say I was raped?” but ended up denying the rumors in their entirety. (School policy prohibits sexual intercourse, even if consensual). At around the same time, Browning was expelled for alleged drug abuse. After leaving, she sent out a message on Snapchat stating, “Fuck LU! I can take down that whole football team.” She later contacted Liberty University to report that she had been raped by Jackson and two other individuals the night of the party.
The school investigated her claim, and concluded that Jackson had indeed violated its Sexual Assault, Harassment and Discrimination Policy. Liberty issued the harshest punishment available: expulsion plus a transcript notation indicating he was removed for sexual assault. On September 12, 2016, Liberty issued a press release containing the following relevant language:
On July 13, 2016, Liberty University received a report of sexual assault… Liberty University has a process in place for handling reports of sexual harassment, discrimination and assault… Liberty University has followed that process in this case… As a result of the investigation and hearing held on September 8, 2016, two current students, Cameron Jackson and Kyle Carrington, and one former student, Avery James, were found responsible for violating the Student Honor Code and Liberty University’s Policy on Sexual Harassment, Discrimination, and Assault. As part of the process, each of these students has the right to appeal the Conduct Review Committee’s decision.
Jackson appealed but lost. He was expelled and a notation was added to his transcript. He has been unable to gain admittance to another university or further his once-promising athletic career. He sued for defamation and a number of other legal theories. The defamation claim against Liberty was based on the press release. The defamation claim against Browning was based on her falsely reporting a sexual assault to the university.
Note that the press release did not make any express misrepresentations of fact. The school did receive a report of a sexual assault by Jackson, did investigate, and did find him ultimately “responsible” for violating its sexual harassment policy. Jackson’s claim, therefore, was based on a theory of implied defamation: that despite the fact that the press release was objectively true, a reasonable reader would infer from the press release that Jackson sexually assaulted Browning, which he alleges is false.
To state a claim for defamation by implication and survive a motion to dismiss, a plaintiff must allege the following:
- that the defendants made the statements alleged in the complaint,
- that the statements, even if facially true, were designed and intended by the defendants to imply [the defamatory meaning],
- 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
- that the plaintiff suffered harm as a result.
(See Pendleton v. Newsome, 290 Va. 162, 175 (2015)). The court found that Jackson had properly alleged these elements in his complaint and denied Liberty’s motion to dismiss.
The court noted that that complaint alleged “(1) that there was a report of sexual assault; (2) that Plaintiff was subject to an investigatory process because of report of sexual assault; and (3) that the result of that process was a finding that Plaintiff had violated Liberty’s Policy on Sexual Harassment, Discrimination, and Assault.” The court held that a reasonable interpretation of the press release would be that Jackson “committed some form sexual assault.” The allegations were therefore sufficient to state a valid prima facie case.
One interesting argument made by Liberty was that it was merely complying with the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g. FERPA provides, in relevant part, that “Nothing in this section shall be construed to prohibit an institution of postsecondary education from disclosing the final results of any disciplinary proceeding,” including “the name of the student, the violation committed, and any sanction imposed by the institution on that student.” (See 20 U.S.C. § 1232g(b)(6)(C)(i)). The court responded that while this is true, FERPA does not mandate a press release of the sort issued by Liberty, and that, in any event, it does not immunize such statements from defamation claims.
With respect to Jackson’s claims against Browning herself (i.e., those based on the allegedly false report made to the university), Browning made two key arguments in support of dismissal: (1) that the claim was defective because it failed to plead the exact words she allegedly used; and (2) that her statements to the university were protected by a qualified privilege. The court rejected both arguments.
Although true that defamation claims in Virginia state court must include the exact words upon which the claim is based, federal courts have held that the relevant pleading standard is governed by Federal Rule of Civil Procedure 8, which does not require such specificity. On the matter of qualified privilege, the court found that there were sufficient non-conclusory allegations that Browning’s statements about Jackson were made with malice (e.g., her “Fuck LU” Snapchat post threatening to “take down” the entire football team).
Whether she actually acted with malice will ultimately be up to the jury to decide.