As often repeated on this blog, the expression of an opinion is protected by the First Amendment and cannot form the basis of a defamation claim. “It is firmly established that pure expressions of opinion are protected by both the First Amendment to the Federal Constitution and Article I, Section 12 of the Constitution of Virginia and, therefore, cannot form the basis of a defamation action.” (See Williams v. Garraghty, 249 Va. 224, 233 (1995)). What’s an opinion? Generally speaking, it’s a relative statement told from the speaker’s personal perspective that isn’t susceptible of being proven true or false. It’s a statement that can’t reasonably be interpreted as conveying actual facts about a person. If a jury instruction is worded in such a way as to allow for the possibility that the jury will find a defendant liable for defamation based on a statement of opinion, that verdict will likely be set aside or reversed. People are entitled to their opinions, no matter how negative or disparaging they might be; you can’t go around suing everyone who criticizes you (not successfully, anyway) unless that criticism includes defamatory falsehoods in addition to the negative opinions being expressed.
It isn’t always easy to distinguish statements of fact from statements of opinion, and lawyers get this wrong all the time. The latest decision of the Virginia Supreme Court to deal with this issue is the case of Amanda C. Padula-Wilson v. Scott David Landry, decided May 14, 2020. The plaintiff was a mother of three children involved in custody and visitation proceedings. When the custody hearing didn’t go as she had hoped, she sued one of the therapists for defamation. (She brought numerous other claims as well in a complaint containing 276 numbered paragraphs, but those claims are outside the scope of this blog). The trial court dismissed the claim, finding that the therapist’s statement was protected by both qualified privilege and absolute judicial privilege. The Virginia Supreme Court granted an appeal, but ultimately agreed with the trial court that the claim was not actionable and affirmed the dismissal.
The basic facts, according to the opinion, go like this. Amanda Padula-Wilson (an attorney) and Michael Wilson were married in 1999. They had three children and separated in 2012. Initially, Amanda had custody of the children and Michael had supervised visitation. Shortly after the children’s guardian ad litem recommended that the court award joint legal custody, he discovered a website that Amanda had created about the case. The website included videos of the children, even though one of the kids’ therapists had recommended that neither parent “record the children…for purposes of litigation.” After becoming aware of the website, both the guardian ad litem and one of the therapists changed their reports to recommend that Michael be awarded sole custody.
Dr. Michele Nelson was a therapist who had been appointed to conduct mental evaluations of both parents. Over the course of her work on the case, she allegedly made the following statements about Amanda Padula-Wilson in a series of emails:
- “I was concerned about what I understood about [Padula-Wilson’s] role in that interaction, so no contact of any sort is authorized for her with A.W. in May 2015.”
- “Specifically, there are concerns that C.W.’s deterioration has at least been contributed to by information his mother has discussed with him” and “I understand that [Padula-Wilson] and A.W. had another brief interaction recently. Given his reactions the last two times he has seen her, and the impact of those interactions on him, I do not authorize any contact between them for June 2015.”
- “I do not authorize overnight visits or additional visitation for this month. I remain concerned about the tone of [Padula-Wilson’s] e-mails regarding coparenting and her boundaries with the children. It was inappropriate of her to discuss this with the children before the father” and “I do not authorize her taking the children today or in the future. It is unfortunate, but the attitudes inherent in her intended actions, at least based on the writings provided to me, are not in the children’s best interest.”
- Nelson had “ongoing concerns about Ms. Wilson’s boundaries with the children.”
- “[Padula-Wilson] has kept [her] children overnight…without communicating her specific intentions appropriately to Mr. Wilson, and has shared inappropriate information about the custody proceedings with the children. Further, within this past month she has also apparently spoken directly with the children about not trusting their therapists, made comments to the children suggesting the children are not safe with their therapists, and discussed negative things about their father with them…it appears that the tone of her communications with them has become problematic, her lack of boundaries with them is a risk factor to them…. Therefore, I do not authorize any time with [Padula-Wilson] and any of the three Wilson children.”
The Virginia Supreme Court found it unnecessary to address the applicability of qualified privilege and judicial privilege because it found the statements weren’t actionable regardless of whether a privilege applied. To the extent Dr. Nelson’s statements were about Padula-Wilson at all, they amounted to nothing more than expressions of opinion. Whether Padula-Wilson’s behavior was “appropriate,” “inappropriate,” or “negative” is entirely subjective. Dr. Nelson had a constitutional right to express her opinions on these matters and could not be held liable for defamation based on these statements.