According to The Virginian-Pilot, Portsmouth attorney Sterling H. Weaver was “convicted in Portsmouth General District Court of assault” in June 2006. A new lawsuit filed by that attorney alleges that a WAVY-TV report, broadcast in February 2014, reported similarly that “in 2006, a Chesapeake judge sentenced [Mr. Weaver] to 30 days in jail for grabbing a prosecutor by the throat after she asked to postpone a case.” (The quote is from the complaint, not the WAVY-TV report). Mr. Weaver says that he heard the report while in jail, where he was staying after being “indicted for assault on a law enforcement officer and sexual battery of that officer.” The report was defamatory, the lawsuit claims, because “the 2006 charge of assault was dismissed.”
Those of you who share with me an unnatural interest in Virginia defamation law are naturally curious as to what the issues in this case are going to be. There are several in my mind, but here are the first few that jump out:
Truth vs. Falsity. Was Mr. Weaver convicted or not? Did the general district court judge sentence him to 30 days in jail? The Virginian-Pilot report noted that Weaver had appealed his conviction to circuit court and that counsel for both parties agreed that “the charge could be dismissed if Weaver remained on good behavior.” The lawsuit, on the other hand, alleges that “prior to February 2014, the Plaintiff had not been convicted of any criminal violation.” To recover for defamation in Virginia, it is necessary for a plaintiff to prove the defendant made a false statement. It is not apparent to the author of this blog that the complaint in this case does that. The complaint accuses the broadcaster of stating that Weaver was sentenced to 30 days in jail, but lacks any allegation that this sentence never happened. Instead, it alleges only that the charges were eventually dismissed. This, coupled with the substantial-truth doctrine, may not be enough to get past a 12(b)(6) motion to dismiss.
Fair Report Privilege. Even if Mr. Weaver can show that the television broadcast made an express or implied false statement, he will still have to overcome the protections afforded by the First Amendment and the common law “fair report” privilege. This privilege allows reporters to write stories about pending criminal proceedings without fear of being held liable for repeating or “republishing” potentially libelous statements made in the course of the proceeding. Even if otherwise defamatory statements are made in the course of a proceeding open to the public, the media has a qualified privilege to report the matter. All that is required is that the report be a fair and substantially true account of the case. The rationale behind this privilege is that everyone has a right of access to public proceedings and a right to be informed of official government actions, particularly on matters of public interest. Frequently, the only way the public can learn of these proceedings is through media reports. Therefore, the public interest is best served by allowing reports of proceedings (even if they involve defamatory allegations or criminal conduct) provided the report is fair and accurate.
Damages. Normally, except in cases of defamation per se, a plaintiff is required to prove damages for the alleged injury to his reputation. Mr. Weaver will likely argue that this is a “per se” case because if he was falsely labeled as a convicted criminal, that would be the sort of statement that would impute to him an unfitness to perform the duties of his job as an attorney. What is interesting here is that a quick Google search of Mr. Weaver yields a number of news stories alleging questionable conduct by the lawyer. According to a 1997 Daily Press article, Weaver “admitted having sex in his office with a 35-year-old client while other people waited in an adjoining room.” Another report on wavy.com indicates he was recently “indicted…for assaulting a law enforcement officer and sexual battery.” Mr. Weaver’s own lawsuit acknowledges that he heard the WAVY-TV broadcast while “lying on the floor in the Portsmouth City Jail.” So the question at trial (if the case makes it that far) is going to be: even if the broadcast in question was inaccurate in reporting a “conviction” or 30-day sentence, did that really make Mr. Weaver’s reputation worse than it already is? If so, how can the jury place a value on the incremental harm? Is Mr. Weaver “libel proof”? I’m not going to endeavor to answer these questions here. Suffice it to say that if the case survives the inevitable motion to dismiss, it will be interesting to see how the parties and the court deal with the issue of damages.