7.11 Relationship to Other Claims

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.)

7.11 RELATIONSHIP TO OTHER CLAIMS

7.1101 In General. Because the common law and the First Amendment place many hurdles in plaintiffs' way, some plaintiffs seek the same damages by alleging other claims based on a defendant's words. These plaintiffs clearly hope that pursuing other causes of action will allow them to avoid several principles that tend to protect defamation defendants.

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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. ⁵⁶⁵

7.1103 Insulting Words. ⁵⁶⁶

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." ⁵⁶⁷ 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 had interpreted the "insulting words" cause of action as being nearly totally assimilated into the law of defamation. ⁵⁶⁸ These courts seemed to conclude that the only remaining difference between an "insulting words" action and a defamation action was that the "insulting words" cause of action required no proof of publication to a third party. ⁵⁶⁹ Only a few circuit courts had held that a plaintiff pursuing an "insulting words" cause of action had to meet any additional burden. ⁵⁷⁰

However, in Allen & Rocks, Inc. v. Dowell, ⁵⁷¹ the Virginia Supreme Court pointed to the statute's literal language in holding that a plaintiff pursuing an insulting words action must prove that the words actually tended to violence or 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. ⁵⁷²

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Interestingly, one Western District of Virginia decision issued over a decade after the Virginia Supreme Court's explanation in Allen & Rocks continued to hold that an insulting words cause of action was "identical to an action for defamation absent the element for publication." ⁵⁷³

C. Continuing Debate About the Elements. All Virginia courts agree that a plaintiff can pursue an "insulting words" cause of action without establishing publication. However, courts disagree about the need for an "insulting words" plaintiff to satisfy the other defamation requirements (especially falsity). Given the traditional Virginia approach that essentially equates a defamation and an "insulting words" claim (except for publication), it is easy to see how a court would insist that an "insulting words" plaintiff meet all of the other standards described in this chapter. On the other hand, truthful statements can undoubtedly hurt and might therefore prompt the recipient's violent response.

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. ⁵⁷⁴ In contrast, some courts indicate that a true statement (thus incapable of supporting a defamation claim) can support an insulting words cause of action. ⁵⁷⁵ The Virginia Model Jury Instructions provide an internally inconsistent analysis of this issue. ⁵⁷⁶

A Western District of Virginia decision examined the context of a statement in analyzing whether the plaintiff had stated 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." ⁵⁷⁷ The court held that "false accusations of a crime" might also satisfy the "insulting words" standard. ⁵⁷⁸

More recently, another Western District of Virginia court rejected an argument that a plaintiff could not state a claim under the insulting

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words statute unless there had been a "face-to-face" confrontation. ⁵⁷⁹ 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." ⁵⁸⁰

D. Examples of Communications Stating an Insulting Words Claim. Virginia courts have found that the following statements met the insulting words standard:

• The plaintiff had stolen company property; ⁵⁸¹

• 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"; ⁵⁸²

• The plaintiff miner used smoking materials, which amounted to a felony and "endangered the lives of his co-workers"; ⁵⁸³

• The plaintiff business competitor was "'a thief, a crook, and a thieving son of a bitch'"; ⁵⁸⁴

• The plaintiff was a "bitch"; ⁵⁸⁵ and

• The plaintiff was a "motherfucker." ⁵⁸⁶

Not surprisingly, courts thus find that traditional curse words might meet the "insulting words" standard.

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E. Examples of Communications Not Stating an Insulting Words Claim. Virginia courts have found that the following statements did not meet the insulting words standard:

• The plaintiff was terminated; ⁵⁸⁷

• The plaintiff doctor overprescribed medicine; ⁵⁸⁸

• A50-year-old plaintiff was not the biological son of an 80-year-old man who had earlier acknowledged his paternity; ⁵⁸⁹

• 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; ⁵⁹⁰

• 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"; ⁵⁹¹

• The plaintiff employee gave away liquor; ⁵⁹²

• The plaintiff sheriff office employee was a lesbian; ⁵⁹³

• The plaintiff employee purchased illegal drugs; ⁵⁹⁴ and

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• The plaintiff parents' son used drugs and alcohol. ⁵⁹⁵

F. Role of Court and Jury. The court decides as a threshold matter whether the statement is capable of meeting the statutory standard. ⁵⁹⁶ If the court finds that the words are capable of meeting the standard, the jury decides whether they violate the statute. ⁵⁹⁷

G. Right to Privacy and "False Light." Virginia does not recognize common law right of privacy or "false light" defamation claims. ⁵⁹⁸

7.1104 Misappropriation of Name or Likeness for Commercial Purposes. The only privacy that remains a viable right 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, ⁵⁹⁹ the Virginia Supreme Court analyzed this statute. The court explained that the traditional common law tort of invasion of privacy included four elements but that "[b]y codifying only the last of these torts, the General Assembly has implicitly excluded the remaining three as actionable torts in Virginia." ⁶⁰⁰ The court held that a plaintiff complaining of an unauthorized use of his or her name "in a context that is false and would be highly offensive to a reasonable person" must "prove that the context was defamatory, and not that the use was a misappropriation." ⁶⁰¹

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 a more "liberal treatment by the courts" than the latter. ⁶⁰²

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

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sexual assault of patients could support a cause of action 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, ⁶⁰³ but it would be odd to allow anyone wishing to avoid the misappropriation statute to simply label a defamatory statement as "news." When a...