Clever defamation lawyers seem to have developed a new technique for bringing lawsuits against the rich and powerful. Step One: Announce to the world that a public figure has mistreated you in some way. Step Two: Wait for the public figure to issue a statement disputing your story and proclaiming innocence. Step Three: Sue the public figure for defamation on the theory that the public figure falsely communicated to the public that you are a liar. Sound familiar?
In 2005, California lawyer Tamara Green told the Today Show that Bill Cosby drugged and groped her. Years later, speaking to Newsweek, Cosby’s publicist responded to Green’s accusation as follows: “This is a 10-year-old, discredited accusation that proved to be nothing at the time, and is still nothing.” Ms. Green then sued Cosby for defamation, complaining that “in an effort to continue the public branding of [Green] as a liar, Defendant Cosby…stated explicitly, stated in effect, stated by innuendo, implied, and/or insinuated, that Defendant Cosby’s drugging and sexual assault against Plaintiff Green never occurred, and therefore that Plaintiff Green lied and was a liar.”
Last week, we saw another public figure get sued for defamation under a very similar set of circumstances. Last October, Summer Zervos, a former contestant on NBC’s “The Apprentice,” announced at a news conference that Donald Trump kissed her on the mouth, stripped naked and attempted to seduce her when she met with him for professional advice at a hotel in Beverly Hills in 2007. Trump responded with a public statement in which he denied the encounter, adding “I never met her at a hotel or greeted her inappropriately a decade ago.” Ms. Zervos promptly proceeded to file a defamation lawsuit, claiming that Trump’s denials of her accusations “debased and denigrated” her.
Do you see the pattern here? Both of these cases differ from the typical slander case in that the statements at issue were uttered in self defense rather than as part of a direct attack against another’s reputation. The question thus arises: does a person have the right to defend himself in a public forum against attacks on his reputation? In Virginia, perhaps unlike the states in which the Cosby and Trump lawsuits were filed, the answer is yes, within reason. Here in Virginia, statements made to defend one’s reputation in response to an attack by another are protected by a qualified privilege of self-defense.
The common law self-defense privilege or “privilege of reply” grants those who are attacked with derogatory or disparaging statements a limited right to reply. It is a qualified, rather than an absolute, privilege, meaning that it case be lost through abuse. For the qualified self-defense privilege to apply, the reply must have been relevant to the initial attack, not excessive or out of proportion to the occasion, and made in good faith.
The privilege has been recognized in Virginia at least as early as 1887, in which the Virginia Supreme Court wrote the following:
[W]hile it is true that one insult cannot be set off against another,…if a man is attacked in a newspaper he may reply; and if his reply is not unnecessarily defamatory of his assailant, and is honestly made in self-defense, it will be privileged. The rule deducible from the authorities is expressed by a modern text writer as follows: “Every man has a right to defend his character against false aspersion. It may be said that this is one of the duties that he owes to himself and to his family. Therefore communications made in fair self-defense are privileged. If I am attacked in a newspaper, I may write to that paper to rebut the charges, and I may at the same time retort upon my assailant, when such retort is a necessary part of my defense, or fairly arises out of the charges he has made against me.”
(See Chaffin v. Lynch, 83 Va. 106, 1 S.E. 803, 810–11 (1887) (citing William Blake Odgers, A Digest of the Law of Libel and Slander at 228 (1881))).
One may abuse, and thus lose, the self-defense privilege if, for example, (1) his reply includes substantial defamatory matter that is irrelevant or non-responsive to the initial attack; (2) his reply includes substantial defamatory matter that is disproportionate to the initial attack; or (3) the publication of his reply is addressed to too broad an audience. (See Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541, 1559–60 (4th Cir. 1994)). Virginia courts have held that a qualified privilege will be lost upon a showing that the statements were made with knowledge that they were false or with reckless disregard for their truth; the statements were communicated to third parties who have no duty or interest in the subject matter; the statements were motivated by personal spite or ill will; the statements included strong or violent language disproportionate to the occasion; or the statements were not made in good faith. (See Cashion v. Smith, 286 Va. 327, 338–39 (2013)). Note, however, that a public response to a public attack may be “uninhibited, robust, and wide-open” without stepping over the line into abuse.
The first requirement for the privilege to apply is that of reasonableness: the reply be responsive to the initial attack. The person being attacked can’t add irrelevant accusations that have nothing to do with the charges made against him. Responsive statements are generally those that simply deny the accusations, or directly respond to them, or express one’s impressions upon first hearing them. But a person whose reputation is attacked is not limited to mere denials; most Virginia courts will permit a reasonable counterattack that impugns the accuser’s motives. The essential question is whether the reply exceeds the scope of the original attack by saying more than reasonably appears necessary to protect the speaker’s reputation. In the Trump case, for example, if all Trump had said in his rebuttal was that he had never had inappropriate relations with Ms. Zervos, most Virginia courts would likely find such a statement protected by the self-defense privilege. In Zervos’ lawsuit, however, she alleges that Trump went beyond merely denying Zervos’ allegations by accusing Zervos of committing a “hoax” designed to hurt his campaign, and suggesting that Zervos was either “put forward by the Clinton campaign” or was “motivated to come forward by getting ‘ten minutes of fame,’ and nothing more.” But even these statements would likely be deemed covered by the self-defense privilege as they merely offer theories as to Zervos’ motives in accusing him of misconduct.
On the requirement of proportionality, various courts have held that a person replying to an attack may not “indulge in language that is unnecessarily defamatory,” or reply with “excessive enthusiasm or ceremonial flair,” or “avail himself of the occasion to gratify his malice” against his accuser. (See Foretich, 37 F.3d at 1562).
The requirement of excessive publication focuses on the audience to whom both the initial attack and the reply were communicated. To be protected, the reply must reasonably focus on the same audience to whom the initial attack was directed. So, for example, if Ms. Zervos had told only a small group of friends that Trump had sexually assaulted her, the privilege would not permit Trump to call her a liar at a press conference reported on by media outlets all over the world. But here, because Ms. Zervos made her initial accusations publicly, the privilege would allow Trump to defend himself publicly.
It is up to the jury to determine whether the statement at issue was published “in fair self-defense, or in the reasonable protection of their own interests.” (See Haycox v. Dunn, 200 Va. 212, 228 (1958)). If the jury finds the statement was an unfair or unreasonable response to the attack against the defendant, the privilege will be deemed lost.