7.7 Truth Versus Falsity

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

7.7 TRUTH VERSUS FALSITY

7.701 In General.

Any analysis of alleged defamation also involves a seemingly simple question—was the statement true or false? True statements cannot support a defamation cause of action. ⁴²¹⁶ As with other aspects of defamation law, however, this issue is not as simple as it appears.

7.702 Burden of Proof.

If lawyers remember anything from their law school tort class, they recall that "truth is an absolute defense" in defamation cases. That familiar phrase, however, no longer states a correct legal principle given that in most instances the burden of proof has shifted from the defendant (truth) to the plaintiff (falsity). In 1985, Virginia joined most other states in holding that a plaintiff must prove falsity. ⁴²¹⁷ Most cases decided since then have followed this approach. ⁴²¹⁸ The plaintiff must carry this burden of proof by a preponderance of the evidence. ⁴²¹⁹

As a practical matter, this burden shift did not revolutionize defamation trials. Defendants still aim to establish truth of the alleged defamatory statements in order to prevent plaintiffs from establishing falsity. Therefore, this issue becomes most important at the time the court approves jury instructions.

7.703 "Substantial Truth."

Under both the old and the new approach to truth and falsity, courts consider a statement true if it is "substantially true." ⁴²²⁰ As the Virginia Supreme Court has explained, "slight inaccuracies of expression are immaterial provided the defamatory charge is true in substance, and it is sufficient to show that the imputation is substantially true." ⁴²²¹

Most courts take a practical approach to this "substantial truth" standard. They hold that "a statement is deemed substantially true for purposes of defamation actions where 'the substance, the gist, the sting, of the libelous charge be justified.'" ⁴²²² For instance, a statement that the plaintiff robbed a bank on Main Street, when he or she actually robbed a bank on Elm Street, would be technically false but "substantially true." The false statement carries the same "gist" or "sting" as the true statement. ⁴²²³ Federal courts have used the phrase "material falsity" as the inverse of "substantial truth." ⁴²²⁴

7.704 Examples of Technically False but "Substantially True" Statements.

Virginia courts have found "substantial truth" in connection with the following statements:

· The plaintiff scientist had access to anthrax (when he did not know it); ⁴²²⁵

· The plaintiff employee had "sued" her employer (when the plaintiff actually filed an EEOC charge); ⁴²²⁶ and

· The plaintiff employee wrongly possessed a Schedule II drug (when the plaintiff actually possessed a Schedule I drug). ⁴²²⁷

7.705 True Statements with Defamatory Implications.

Publishing literally true facts may nevertheless result in liability if they carry a false, defamatory implication. In an Eastern District of Virginia case, the court held that true statements that the plaintiff was convicted of a crime were false in the defamation (and fair report privilege) context where those statements did not also include that the conviction was overturned on appeal. ⁴²²⁸

7.706 Transmission of a Third Party's Defamation Without Endorsement.

Repeating a knowingly false and defamatory statement might not trigger liability if the person repeating the statement does not endorse it as true. Thus, someone repeating defamation may be able to avoid liability if there is an independently justifiable reason to pass along a rumor or other possibly defamatory statement. For instance, it would be appropriate for a manager to report up the corporate hierarchy that an accusation of sexual harassment had been lodged against a company employee. As long as the internal corporate communications properly characterized the statement as an allegation rather than as a true statement, the republication should not support a separate cause of action against the person repeating it. ⁴²²⁹

The Restatement states this basic rule as follows:

One who upon an occasion giving rise to a conditional privilege publishes a defamatory rumor or suspicion concerning another does not abuse the privilege, even if he knows or believes

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