Under Virginia law, rhetorical hyperbole is not defamatory. Rhetorical hyperbole refers to statements that–while they may seem at first glance to express factual assertions about a person–cannot reasonably be interpreted as stating actual facts. To prove defamation, a plaintiff needs to show falsity; rhetorical hyperbole does not literally assert facts, so it is not susceptible of being proven true or false. Therefore, courts treat is as non-actionable opinion.
Another reason rhetorical hyperbole is not considered defamatory is that the law encourages “imaginative expression” in public debate. In Milkovich v. Lorain Journal Co., the Supreme Court noted that rhetorical hyperbole has “traditionally added much to the discourse of our Nation.” (See 497 U.S. 1, 20 (1990)).
My favorite example is Yeagle v. Collegiate Times, which involved a newspaper article that referred to a university official as the “Director of Butt Licking.” In analyzing whether the phrase could be deemed defamatory, the court wrote that “the phrase ‘Director of Butt Licking’ is no more than ‘rhetorical hyperbole.’ The phrase is disgusting, offensive, and in extremely bad taste, but it cannot reasonably be understood as stating an actual fact about Yeagle’s job title or her conduct, or that she committed a crime of moral turpitude.” (See Yeagle v. Collegiate Times, 255 Va. 293, 297 (1998)).
Another good example is found in Greenbelt Co-op. Pub. Ass’n v. Bresler, where the Supreme Court explained why accusing someone of “blackmail” is not necessarily defamatory, despite the fact that blackmail is a crime:
It is simply impossible to believe that a reader who reached the word ‘blackmail’ in either article would not have understood exactly what was meant: it was Bresler’s public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler’s negotiating position extremely unreasonable. Indeed, the record is completely devoid of evidence that anyone in the city of Greenbelt or anywhere else thought Bresler had been charged with a crime.
(See Greenbelt Co-op. Pub. Ass’n v. Bresler, 398 U.S. 6, 14 (1970)).
Remember when Stormy Daniels lost her defamation case against Donald Trump? The reasoning behind the dismissal of the case had a lot to do with this concept of rhetorical hyperbole. Commenting on a sketch circulated by Ms. Daniels’ lawyer of a man who allegedly threatened Ms. Daniels, Trump tweeted, “A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!” The court found the tweet was not actionable “because the tweet in question constitutes ‘rhetorical hyperbole’ normally associated with politics and public discourse in the United States.” Similarly, a federal court in Virginia found that referring to a court petition seeking whistleblower status as a “political ploy to hurt the Northam administration and other state leaders” was “certainly ‘rhetorical hyperbole’ that no reasonable person would interpret as fact.” (See Moschetti v. Office of the Inspector General, Aug. 11, 2022).
I was reminded of these principles when I read last week’s opinion (from the Western District of Virginia, Big Stone Gap Division) in Melinda Scott v. Joshua Moon. Joshua Moon is the owner of Lolcow, LLC, which operates the Kiwi Farms internet forum. Ms. Scott’s lawsuit alleges that Mr. Moon published on Kiwi Farms an article containing private facts about her upcoming marriage, her spouse’s prior legal problems and incarceration, and a protective order she had obtained against a New York resident. Her complaint alleges that Mr. Moon posted comments on Kiwi Farms stating that Ms. Scott is “the dumbest person, possibly ever,” “really fucking stupid,” a “moron,” a “slut whore,” that she writes like she uses “crayola magic marker,” and she has “ha[d] like a dozen husbands by age 30.”
The court dismissed the case, finding these statements to amount to nothing more than rhetorical hyperbole:
All of these statements are loose, hyperbolic, and based in opinion. Thus, though they may be insulting and offensive, they are not actionable as defamation.
Another way to look at the issue is this: meaningless insults are not defamatory, no matter how cruel. Actionable defamation requires a statement of fact that causes people hearing the statement to believe certain (untrue) facts about the person described in the statement and consequently hold that person in lower regard.