7.6 Defamatory Meaning

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

7.6 DEFAMATORY MEANING

7.601 In General.

As courts (and perhaps jurors) analyze an allegedly defamatory communication, they must determine whether the communication conveys a defamatory meaning. The law does not recognize as actionable every critical statement—the statement must carry a requisite "sting" to support the tort.

7.602 Per Se Versus Per Quod Defamation.

Courts classify as "defamation per se" a communication whose defamatory nature falls into certain categories, such as certain criminal offenses, contagious diseases, unfitness for office, or prejudice to one's profession or trade. ⁴¹⁸⁷

An action for "defamation per quod" arises if one must look beyond the statement itself to find the negative implication. ⁴¹⁸⁸ For instance, misstating a woman's address may not be defamatory on its face but could give rise to a defamation per quod action if the address houses a well-known brothel.

In 2014, an Eastern District of Virginia court explained that "there is only one cause of action in Virginia for defamation" rather than separate causes of action for defamation per se, defamation, and defamation per quod. ⁴¹⁸⁹ Later, the court noted that "ultimately Plaintiff will have to choose a theory of recovery." ⁴¹⁹⁰ Some practitioners still divide up their claims according to defamation theory.

7.603 Elements (Including the "Sting").

A. In General.

Most courts recognize a few basic principles in analyzing a statement's defamatory meaning or impact.

B. Acceptance as Truth.

First, those receiving the communication must accept it as possibly true. Obvious humor or hyperbole likely lack defamatory meaning. More often, this issue arises in the context of protected opinion and whether a statement can be proven true or false.

C. Required "Sting."

Second, only statements that generate a certain degree of defamatory "sting" will support a cause of action. For example, someone might accuse another of wearing a suit that had not been dry-cleaned for a few days. Even if the statement was knowingly false and intended to defame, the accusation does not have the type of "sting" that could support a defamation claim. As explained below, federal and state courts follow varying standards on defamatory meaning.

In 1904, the Virginia Supreme Court stated in Moss v. Harwood⁴¹⁹¹ that any written statement "which tends to injure one's reputation in the common estimation of mankind, to throw contumely, shame, or disgrace upon him, or which tends to hold him up to scorn, ridicule, or contempt, or which is calculated to render him infamous, odious, or ridiculous, is prima facie a libel." ⁴¹⁹²

The Restatement (Second) of Torts states the following, which has been adopted in the Virginia Model Jury Instructions and followed by many courts: "[a] communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." ⁴¹⁹³

In the Fourth Circuit's most extensive discussion of this issue, the court acknowledged both the Restatement and Moss standards of defamatory "sting."

In Virginia, the elements of libel are (1) publication of (2) an actionable statement with (3) the requisite intent. See generally, Gazette, Inc. v. Harris, 229 Va. 1, 325 S.E.2d 713, cert. denied, 472 U.S. 1032 (1985). To be "actionable," the statement must be not only false, but also defamatory, that is, it must "tend[] so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Restatement (Second) of Torts § 559. As one court put it, defamatory words are those that "make the plaintiff appear odious, infamous, or ridiculous." McBride v. Merrell Dow and Pharmaceuticals, Inc., 540 F. Supp. 1252, 1254 (D.D.C. 1982), rev'd in part on other grounds, 230 U.S. App. D.C. 403, 717 F.2d 1460 (D.C. Cir. 1983). Merely offensive or unpleasant statements are not defamatory. ⁴¹⁹⁴

In 2012, the Fourth Circuit again acknowledged these standards. ⁴¹⁹⁵ Later, courts in the Eastern and Western Districts of Virginia did the same. ⁴¹⁹⁶ And in 2015, the Virginia Supreme Court also applied the Restatement and Moss standards.

D. Required Overlap of Falsity and Sting.

Third, the factual falsity of a statement and the "sting" of its meaning must overlap. As the Fourth Circuit noted, "[t]he falsity of a statement and the defamatory 'sting' of the publication must coincide—that is, where the alleged defamatory 'sting' arises from substantially true facts, the plaintiff may not rely on minor or irrelevant inaccuracies to state a claim for libel." ⁴¹⁹⁷

In 2011, a court in the Eastern District of Virginia dismissed a defamation action because "the purported falsity and the defamatory 'sting' set forth in the Complaint do not coincide." ⁴¹⁹⁸

In 2016, an Eastern District of Virginia court granted summary judgment in a former employee's case against her former employer because the effect of the admittedly false statement (that the plaintiff "up and left" rather than being terminated) "was no worse than the truth" and therefore could not support a defamation claim. ⁴¹⁹⁹

7.604 Difficulty of Drawing the Line.

Courts sometimes struggle to determine whether certain negative statements cross the defamatory-meaning line and carry actionable "sting." It is often the same struggle in determining whether statements are protected opinion or actionable as factual assertions. In many instances, courts hold that a defendant's rantings about a plaintiff contain both actionable and nonactionable statements.

7.605 Examples of Communications Capable of Defamatory Meaning.

See Appendix 7-5 for examples of statements where Virginia courts have found defamatory meaning.

7.606 Examples of Communications...