7.11 Relationship to Other Claims

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 Ed.)

7.11 RELATIONSHIP TO OTHER CLAIMS

7.1101 In General.

It is not uncommon to see other claims pursued along with a defamation claim. Often, the fate of the defamation claim determines the viability of related claims.

7.1102 Constitutional Torts.

Several Virginia federal courts have found that a public employee's defamation claim does not amount to the type of rights deprivation that could support a constitutional tort claim. ⁴³⁰⁵

7.1103 Insulting Words. ⁴³⁰⁶

A. In General.

Virginia's "insulting words" statute renders actionable any communications that "are construed as insults and tend to violence and breach of the peace." ⁴³⁰⁷ The statute apparently was designed to induce Virginia gentlemen to settle their claims in court rather than through duels.

B. Emphasis on Likely Effect.

In the past, most Virginia courts interpreted the "insulting words" cause of action as being nearly totally assimilated into the law of defamation. ⁴³⁰⁸ These courts seemed to conclude that the only remaining difference between an "insulting words" claim and a defamation claim was that the former required no proof of publication to a third party. ⁴³⁰⁹ Only a few circuit courts held that a plaintiff pursuing an "insulting words" claim had to meet any additional burden. ⁴³¹⁰

However, in Allen & Rocks, Inc. v. Dowell, ⁴³¹¹ the Virginia Supreme Court pointed to the statute's literal language in holding that a plaintiff pursuing an insulting words claim must prove that the words actually tended to provoke violence or a breach of the peace. Finding that the trial court should have granted the defendant's motion to strike for failing to meet that standard, the court reversed and entered final judgment for the defendant. ⁴³¹²

Interestingly, one Western District of Virginia decision issued over a decade after Allen & Rocks continued to hold that an insulting words claim was "identical to an action for defamation absent the element for publication." ⁴³¹³

C. Continuing Debate About the Elements.

Virginia courts agree that a plaintiff can pursue an "insulting words" claim without establishing publication. Virginia courts disagree, however, about the need for an "insulting words" plaintiff to satisfy the other defamation requirements (especially falsity). Given the traditional approach that essentially equates a defamation and an "insulting words" claim (except for publication), it is easy to see how a court might insist that an "insulting words" plaintiff satisfy all of the defamation elements as well. On the other hand, truthful statements can undoubtedly hurt, and some might even "tend to violence and breach of the peace."

Some courts continue to require that a plaintiff satisfy all the other elements of the defamation tort before analyzing the viability of his or her insulting words claim. ⁴³¹⁴ In contrast, other courts indicate that a true statement (thus incapable of supporting a defamation claim) can support an insulting words cause of action. ⁴³¹⁵ The Virginia Model Jury Instructions provide an internally inconsistent analysis of this issue. ⁴³¹⁶

A Western District of Virginia decision examined the context of a statement in analyzing whether the plaintiff had pled an adequate insulting words claim. The court held that a statement made in a "face-to-face confrontation" was more likely to "provoke violence than a similar accusation left in a book." ⁴³¹⁷ The court further held that "false accusations of a crime" might also satisfy the "insulting words" standard. ⁴³¹⁸

More recently, another Western District of Virginia court rejected an argument that a plaintiff could not state a claim under the insulting words statute without a "face-to-face" confrontation. ⁴³¹⁹ The court held that "[t]his interpretation of the statute is too strict" and that the Virginia Supreme Court "has declined to read additional requirements into the law." ⁴³²⁰

D. Examples of Communications Stating an Insulting Words Claim.

Virginia courts have ruled that the following statements met the insulting words standard:

· The plaintiff had stolen company property; ⁴³²¹

· The plaintiff employee had been accused (during his termination interview) of attempting to remove material from the employer, which the court characterized as an allegation of "criminal dishonesty" and "theft"; ⁴³²²

· The plaintiff miner used smoking materials, which amounted to a felony and "endangered the lives of his co-workers"; ⁴³²³

· The plaintiff business competitor was "'a thief, a crook, and a thieving son of a bitch'"; ⁴³²⁴

· The plaintiff was a "bitch"; ⁴³²⁵ and

· The plaintiff was a "motherfucker." ⁴³²⁶

E. Examples of Communications Not Stating an Insulting Words Claim.

Virginia courts have ruled that the following statements did not meet the insulting words standard:

· The plaintiff was terminated; ⁴³²⁷

· The plaintiff doctor overprescribed medicine; ⁴³²⁸

· A 50-year-old plaintiff was not the biological son of an 80-year-old man who had earlier acknowledged his paternity; ⁴³²⁹

· The plaintiff lawyer (who represented the husband in a domestic relations action against the defendant's daughter) was acting improperly and might therefore be reported to the bar; ⁴³³⁰

· The plaintiff college professor was a "troublemaking Republican," a "traitor to her race," "uncooperative," "more trouble with me than anyone else in the department," "always doing what she wants to do," "mean," and "crazy"; ⁴³³¹

· The plaintiff employee gave away liquor; ⁴³³²

· The plaintiff sheriff office employee was a lesbian; ⁴³³³

· The plaintiff employee purchased illegal drugs; ⁴³³⁴ and

· The plaintiff parents' son used drugs and alcohol. ⁴³³⁵

F. Role of Court and Jury.

Although the question of whether statements are actionable under the insulting words statute used to be resolved by the jury, since 1940 it has squarely been a question of law to be resolved by the court. ⁴³³⁶ If the court rules that a statement is capable of meeting the standard, the jury decides whether it violates the statute. ⁴³³⁷

7.1104 Misappropriation of Name or Likeness for Commercial Purposes.

Virginia does not recognize most invasion of privacy torts, including "false light" claims. ⁴³³⁸ The only privacy tort that remains viable under Virginia law appears in section 8.01-40 of the Virginia Code, which prohibits the unauthorized use of a person's name or likeness for commercial purposes.

In WJLA-TV v. Levin, ⁴³³⁹ the Virginia Supreme Court observed as follows:

The common law torts of invasion of privacy are (1) unreasonable intrusion upon the plaintiff's seclusion, or solitude, or into his private affairs; (2) public disclosure of true, embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) misappropriation of plaintiff's name or likeness for commercial purposes. William L. Prosser, The Law of Torts § 117 (4th ed. 1971). By codifying only the last of these torts, the General Assembly has implicitly excluded the remaining three as actionable torts in Virginia. ⁴³⁴⁰

As for section 8.01-40, the court explained what it called the "separate and distinct statutory concepts" of "advertising purposes" and "purposes of trade," and noted that the former has received more "liberal treatment by the courts" than the latter. ⁴³⁴¹

The main issue before the court in WJLA-TV was whether a television station's advertisement of an upcoming news story about a doctor's alleged sexual assault of patients could support a claim under the misappropriation statute. This is a more difficult issue than one might initially surmise. Television stations, newspapers, and the like clearly must be exempted from the misappropriation statute when reporting the news, ⁴³⁴² but it would be odd to allow anyone wishing to avoid the misappropriation statute to simply label a defamatory statement as "news." When a media outlet advertises an upcoming news story, the analysis becomes even more difficult; the advertisement clearly has "advertising purposes," but it would seem to deserve protection as news. In WJLA-TV, the court indicated that...