In Virginia, when a defamation action is brought by a private individual (as opposed to a public figure), the plaintiff will usually only need to establish negligence to meet the “intent” element required to prevail in such actions. Public figures, on the other hand, need to prove the defendant acted with New York Times malice. A little-known exception to the rule for private individuals, however, is that if the statement at issue does not make “substantial danger to reputation” apparent to the reasonable publisher, then even private plaintiffs would need to prove malice to recover for defamation. As explained by the Virginia Supreme Court in Gazette, Inc. v. Harris, 229 Va. 1, 22-23 (1985), a threshold question of law for the trial judge is to determine “whether a reasonable and prudent editor should have anticipated that the words used contained an imputation necessarily harmful to reputation.”
Do not confuse “substantial danger to reputation” with defamatory meaning. Regardless of the state of mind of the defendant, a statement won’t be actionable if it doesn’t carry the requisite defamatory sting. Every defamatory statement must contain the sort of false characterizations that would tend to harm one’s reputation. What plaintiffs need to prove in every defamation action is not just that a statement has the potential to cause substantial danger to reputation but that it actually is the sort of statement that would tend to harm reputation. What we’re talking about now–the “Gazette test”–deals with the foreseeability and obviousness of the harmful nature of the statement. In other words, while a successful plaintiff will always need to demonstrate defamatory meaning, if that defamatory meaning would not be readily apparent to a reasonable person in the position of the defendant at the time the statement was made, the plaintiff will need to prove malice, even if he or she is a private individual.
Virginia is one of very few states that apply this dual standard for determining the level of fault private plaintiffs are required to prove. Why this isn’t the standard in other states is a mystery, because its origins lie in the seminal United States Supreme Court case of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), where the Court noted that it would have serious concerns if a state were to impose liability “on a factual misstatement whose content did not warn a reasonably prudent editor or broadcaster of its defamatory potential.” It called for defamation actions to include a fault element, “at least…where…the substance of the defamatory statement makes substantial danger to reputation apparent.”
Oddly enough, the “substantial danger to reputation” language appears to have originated with another Supreme Court case discussing public-figure plaintiffs rather than private individuals. See Curtis Pub. Co. v. Butts, 388 U.S. 130, 155 (1967) (“We consider and would hold that a ‘public figure’ who is not a public official may also recover damages for a defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.”)
But this isn’t law school, so let’s not dwell on history. What matters today is the current state of the law in Virginia, which (as of this writing) is this: Whether a defamation plaintiff will need to prove negligence or malice will depend first on whether the plaintiff is a private individual or public figure. Next, if the plaintiff is a private individual, the next question (which is a question of law to be resolved by the trial court) is whether the statement at issue makes substantial danger to reputation apparent. If it does not, the private plaintiff will need to prove malice by clear and convincing evidence, just like a public figure would. If the statement does make substantial danger to reputation apparent (as it will in most cases deemed serious enough to warrant litigation), the private plaintiff will only need to show negligence, and only by a preponderance of the evidence.
The Supreme Court of Virginia has held that trial courts perform “an essential gatekeeping function” to ensure that the only defamation lawsuits permitted to go forward are those in which the alleged statements exceed the protections of the First Amendment. (See Webb v. Virginian-Pilot Media Companies, LLC, 287 Va. 84 (2014)). As “gatekeeper,” the trial judge should decide, at the very beginning of a case, (a) whether the alleged statement amounts to fact or opinion, and (b) whether the statement is reasonably capable of the defamatory meaning claimed by the plaintiff. If the statement is pure opinion, or if it does not carry defamatory meaning as a matter of law, the court should dismiss the case at the outset. If the case survives past this point, the trial judge should perform further gatekeeping duties by, prior to trial, ruling on (a) whether the statement makes substantial danger to reputation apparent, and (b) whether the defamation is of the “per se” or “per quod” variety. The answers to these questions will have an enormous impact on the proof that will be required as part of the plaintiff’s case.