7.18 Fault: Private Plaintiffs

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

7.18 FAULT: PRIVATE PLAINTIFFS

7.1801 In General.

The United States Constitution has little to say about how state common law treats private plaintiffs. Each state has developed its own approach.

7.1802 The Virginia Standard Generally.

A. Threshold Determination.

In 1985, the Virginia Supreme Court in Gazette, Inc. v. Harris⁴⁷³⁵ announced an innovative standard that governs private plaintiff defamation cases. As in so many other areas of defamation law, a Virginia court handling a private plaintiff defamation case must make a threshold determination of the fault standard governing the case. In any defamation action by a private plaintiff against either a media or a nonmedia defendant, the court must first determine as a matter of law whether the allegedly defamatory statement "'makes substantial danger to reputation apparent.'" ⁴⁷³⁶

B. Dual Standard.

The fault standard then follows from this threshold finding

· If the statement does "make substantial danger to reputation apparent," a private plaintiff must establish the defendant's negligence by a preponderance of the evidence. ⁴⁷³⁷

· If the statement does not "make substantial danger to reputation apparent," the private plaintiff must establish constitutional malice by clear and convincing evidence. ⁴⁷³⁸

Virginia seems to be the only state to have adopted this dual approach.

7.1803 Applying the Standard.

A. In General.

Only a few cases have dealt with the "substantial danger to reputation" standard. At least two questions present themselves.

B. Courts' Determination.

First, how does the court determine whether a statement makes "substantial danger to reputation apparent"? The possibilities range from the court simply analyzing the words to a full evidentiary review with the words placed in context aided by witnesses and documents. Remembering the basic purpose of the unique Virginia Gazette standard, it would make the most sense for the court to simply analyze the words. Gazette makes it clear that the differing fault standards rest on the real-life scenario inside a media newsroom.

This is the way the Virginia Supreme Court put it:

In making the threshold determination of whether a statement makes substantial danger to reputation apparent, the trial judge must decide whether a reasonable editor should have anticipated that the words imputed harm to reputation. ⁴⁷³⁹

In applying this general standard to the particular situation in Gazette, the Virginia Supreme Court reinforced this concept:

The harmful potential of the words in the article to the plaintiffs' reputation, i.e., that the plaintiffs were accused of crimes, should have been apparent to the paper's editor if he had exercised ordinary care. Consequently, there existed substantial

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