7.9 Defamation Per Se

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

7.9 DEFAMATION PER SE

7.901 In General.

The law considers a statement defamation per se if the defamatory content appears on its face. An entirely separate doctrine, also called defamation per se, focuses on the statement's substance. However, the significance of the latter doctrine has dramatically diminished over the years.

Unfortunately, courts often seem to misunderstand the per se defamation doctrine and might lead a practitioner in the wrong direction. For instance, in one of the cases involving the alleged anthrax killer, the Fourth Circuit seemed to indicate that statements not rising to the per se level could not even state a claim under Virginia law. ⁴²⁷¹ Other courts correctly recognize that statements can be defamatory although they are not per se defamation. ⁴²⁷²

7.902 Categories.

A defamatory communication can support a cause of action only if it:

1. Causes "special damages"; or

2. Falls within one of four categories of defamation per se by:

· Imputing the commission of a crime involving moral turpitude;

· Imputing infection with a contagious disease;

· Imputing unfitness to perform, or lack of integrity in the performance of, the duties of a job or office; or

· Necessarily prejudicing a person in his or her profession or trade. ⁴²⁷³

7.903 Special Damages.

In general, defamation plaintiffs complaining of statements falling outside the four per se categories must prove that they suffered special damages. Unfortunately, Virginia courts have never defined "special damages" with any precision. A fair reading of the case law before 1982 indicates that Virginia's definition of "special damages" matched the generally accepted definition of provable monetary loss. ⁴²⁷⁴ In fact, the Virginia Supreme Court on at least one occasion used the phrase "pecuniary loss" in place of "special damages." ⁴²⁷⁵

In Fleming v. Moore, ⁴²⁷⁶ however, the Virginia Supreme Court defined "special damages" as including "emotional upset and embarrassment." ⁴²⁷⁷ A few years later, the Supreme Court confirmed that a defamation plaintiff required to prove "special damages" need not "show actual out-of-pocket damage." The Supreme Court explained that "a showing of loss of reputation and standing in the community, embarrassment, humiliation, and mental suffering will be sufficient for the award of damages." ⁴²⁷⁸

In 2015, the Virginia Supreme Court articulated the traditional rule requiring allegations or proof of "special damages" for a non-per se defamation claim to proceed. ⁴²⁷⁹ However, the court was discussing the ability of a corporation's owner to pursue a defamation claim based on statements about the corporation, so presumably the court's articulation of special damages did not reflect a rejection of the more expansive Fleming decision.

Similarly, an Eastern District of Virginia court held that statements...