When the Virginia Citizens Defense League, a gun-rights organization, sued Katie Couric for defamation back in 2016, the two big issues from a legal perspective were (1) whether the edited video of the VCDL members conveyed a false statement of fact, and (2) if so, whether that false message carried a defamatory meaning sufficient to support a cause of action for defamation. When I first wrote about the case the day after it was filed, I devoted most of my blog post to the issue of whether video and still images can support the falsity element of a defamation claim (they can). Now that the case has completed its journey through the legal system, I thought I would revisit this case, this time focusing more on the second issue: that of defamatory meaning.
At the trial level, the court answered both questions in the negative, finding that the video was “not false” and that, even if it were false, it lacked sufficient defamatory meaning to survive a motion to dismiss. On appeal to the Fourth Circuit, the Court of Appeals held as I predicted it might: it overruled the trial court’s determination that the video was not false, but nevertheless affirmed the dismissal of the case because that falsity did not carry defamatory meaning sufficient to state a claim for defamation under Virginia law. What surprised me about the ruling was not the result but how little was written in the opinion about whether the law should recognize a defamation claim based on a false statement deemed despicable by a large segment of society, but not by the majority of Americans. This seemed to be a good case for the court to grapple with that issue, as the degree to which VCDL members’ reputations suffered among viewers of the documentary likely varied according to viewers’ opinions on gun ownership. Instead, the court held (in a footnote, no less) that defamatory meaning should be measured according to “the common estimation of mankind” without consideration of variations that may exist among smaller segments of the populace.
Simple insults are not actionable in Virginia. Even if the insult is demonstrably false or unfair, the general rule is that such a statement about another person is not defamatory, essentially for the reason that mere insults do not convey defamatory meaning. Calling someone a “bastard” or (to use a recent example) a “motherfucker” may be tasteless and insulting, but does not convey false and defamatory information about a person. The law regards such insults as a part of life and not grounds for legal action. A line is crossed, however, if the insult does contain false information about a person, and that false message causes those who read (or hear, or watch) the statement to lower their regard for the insulted person to a substantial degree.
How substantial is enough to convert a mere insult into a defamatory statement? The general test states that defamatory words are those which “tend so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Some older case law holds that the words must tend “to injure one’s reputation in the common estimation of mankind, to throw contumely, shame, or disgrace” upon the plaintiff, or tend “to hold him up to scorn, ridicule, or contempt, or which [are] calculated to render him infamous, odious, or ridiculous.”
So if “the community” thinks less of a person as a result of a false statement made about him or her, the person has potentially been defamed. But who is this community? In commenting on the trial court’s dismissal of the VCDL v. Couric case, I wrote, “The key issue, it seems to me, lies in how we define ‘community.’ In other words, in whose eyes should the law measure the extent to which VCDL’s reputation might have been affected by the false portrayal?” VCDL’s attorneys felt this was an important issue as well, urging the Fourth Circuit to follow the Restatement’s suggestion that it should suffice for a statement to injure one’s reputation in the mind of “a substantial and respectable minority” of the community, rather than in the mind of the general public as a whole.
The Fourth Circuit was unpersuaded, choosing instead to rely on the 1904 Virginia Supreme Court case of Moss v. Harwood (102 Va. 386) which, quoting an old treatise, held that the relevant community is all of mankind:
In conclusion it may be said that any publication, expressed either by printing or writing, or by signs, pictures, or effigies, or the like, which tends to injure one’s reputation in the common estimation of mankind, to throw contumely, shame, or disgrace upon him, or which tends to hold him up to scorn, ridicule, or contempt, or which is calculated to render him infamous, odious, or ridiculous, is prima facie a libel, and implies malice in its publication.
Noting that Virginia courts have never deviated from this holding or adopted the “substantial and respectable minority” approach discussed in the Restatement, the Fourth Circuit declined to deviate from the “common estimation of mankind” standard.
Applying this standard, the court held that the documentary, while false, did not sufficiently lower the VCDL members in the common estimation of mankind to make out a valid claim for defamation. “Even for an organization steeped in gun policy,” the court held, “the essential message that VCDL members failed to respond instantly to a complex question is simply not defamatory.” The court rejected the plaintiffs’ arguments that they were portrayed in the video as unfit in their professions, reasoning that the court could not reasonably “extend mere silence into professional ineptitude.”
Defamation law is all about protecting one’s reputation from unjust attacks, and reputation is all about how a person is perceived by others. The problem is that people of different backgrounds, beliefs, and value structures may not react the same way to a particular statement about a person. Conceivably, the same statement could generate feelings of contempt and scorn among some segments of society while causing others to view the person described in the statement very favorably. According to the Fourth Circuit, defamatory meaning is to be measured solely by standards held by the entire human race as opposed to any particular minority group. It has been over 100 years since the Virginia Supreme Court addressed the question of how “community” should be defined for purposes of analyzing defamatory meaning. It’s probably about time for it to revisit the issue.