7.7 Truth Versus Falsity

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

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statements cannot support a defamation cause of action. ⁴³¹ 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 normally recall that "truth is an absolute defense." However, that familiar phrase no longer states a correct legal principle; the burden of proof has shifted from the defendant to the plaintiff. In 1985, Virginia joined most other states in holding that a plaintiff must prove falsity. ⁴³² Most cases decided since then have followed this approach. ⁴³³ The plaintiff must carry this burden of proof by a preponderance of the evidence. ⁴³⁴

Unfortunately, some courts cling to the old formulation of truth as a defense. ⁴³⁵ Other courts mix the old and the new rule. ⁴³⁶

As a practical matter, this shift did not revolutionize defamation trials. The plaintiff generally may create a jury issue on this point merely by testifying to the falsity of the allegedly defamatory statement. Therefore, this principle 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." ⁴³⁷ As the Virginia Supreme Court has explained, "slight inaccuracies of expression are immaterial provided the defamatory charge is true in

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substance, and it is sufficient to show that the imputation is substantially true." ⁴³⁸

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.'" ⁴³⁹ 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. ⁴⁴⁰ Federal courts have used the phrase "material falsity." ⁴⁴¹

7.704 Examples of Technically False but "Substantially True" Statements. Courts have held that the following statements were substantially true:

• The plaintiff scientist had access to anthrax (when he did not know it); ⁴⁴²

• The plaintiff employee had "sued" her employer (when the plaintiff actually filed an EEOC charge); ⁴⁴³ and

• The plaintiff employee wrongly possessed a Schedule II drug (when the plaintiff actually possessed a Schedule I drug). ⁴⁴⁴

7.705 True Statements with Defamatory Implications. As explained in paragraph 7.8 , publishing a true fact may nevertheless result in liability if it carries a defamatory implication. One Virginia case provides a

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perfect example of that defamation, accurately stating that the plaintiff was convicted of a crime, but failing to add that his conviction was overturned. ⁴⁴⁵

In 2014, the Virginia Supreme Court affirmed the trial court's striking of a $3 million compensatory damage jury award in an implied defamation case. The plaintiff argued that a newspaper article implied that he had used his position as a high school employee to arrange lenient punishment for his son after a fight. As the Virginia Supreme Court explained, "[w]here, as here, a plaintiff alleges that he has been defamed not by statements of fact that are literally true but by an implication arising from them, the alleged implication must be reasonably drawn from the words actually used." ⁴⁴⁶

7.706 Truthful Transmission of a Third Party's Defamation Without Endorsement. Repeating even a knowingly false and defamatory statement might not trigger liability if the person repeating the statement does not endorse it. 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. ⁴⁴⁷

The Restatement states this basic rule as follows:

One who upon an occasion giving rise to a conditional privilege...