7.9 Defamation Per Se

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 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. ⁴⁸⁰ Other courts correctly recognize that statements can be defamatory although they are not per se defama-tion. ⁴⁸¹

7.902 Categories. Traditionally, 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:

[Page 913]

• 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. ⁴⁸²

7.903 Special Damages. Under the traditional approach, plaintiffs complaining of statements falling outside the four per se categories had to 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. ⁴⁸³ In fact, the Virginia Supreme Court on at least one occasion used the term "pecuniary loss" in place of "special damages" in discussing defamation dam-ages. ⁴⁸⁴

In Fleming v. Moore, ⁴⁸⁵ however, the Virginia Supreme Court defined "special damages" as including "emotional upset and embarrassment." ⁴⁸⁶ A few years later, the Supreme Court confirmed that a 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." ⁴⁸⁷

Of course, only a plaintiff with an inattentive lawyer would fail to allege damages of this sort. As explained in paragraph 7.2003 , compensatory damages in defamation cases include monetary harm, emotional distress, and reputational harm. This means that plaintiffs who articulate any claim for damages automatically seek special damages. The Virginia Model Jury Instructions

[Page 914]

use the archaic definition of "special damages"—"actual, out-of-pocket losses." ⁴⁸⁸

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. ⁴⁸⁹ 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 the traditional special damages requirement did not reflect a rejection of the Fleming approach.

More recently, an Eastern District of Virginia decision seemed to articulate the now-defunct standard. Although ultimately granting summary judgment for the defendant, the court held that statements meeting the defamation per se standard "would be actionable even if plaintiff has not experienced a financial loss." This implies that absent financial loss, the plaintiff could not have pursued a defamation case that did not meet the per se stan-dard. ⁴⁹⁰

7.904 Examples of Communications Constituting Defamation Per Se. Virginia courts have found that the following statements constituted defamation per se:

• The plaintiff former school principal ran the school so that "teachers and staff . . . worked in fear of administrative retaliation"; ⁴⁹¹

• The plaintiff was suspended for performance problems rather than budgetary concerns; ⁴⁹²

• The plaintiff doctor caused medicine overdoses; ⁴⁹³

[Page 915]

• The plaintiff had "murdered her mother" by overdosing her on morphine; ⁴⁹⁴

• The plaintiff fire and rescue department volunteer had sent a "false document" to improperly obtain free paint; ⁴⁹⁵

• The plaintiff franchisor's "quarterly results were 'lies' and 'deceptive'"; ⁴⁹⁶

• The plaintiff franchisor "was engaged in 'unlawful actions' that interfered with [the franchisee's] success"; ⁴⁹⁷

• The plaintiff franchisor "'encouraged/persuaded and ordered' the franchisees to falsify their business records"; ⁴⁹⁸

• The plaintiff franchisor's "system is 'a scam, a scheme, a con,'" and the plaintiff franchisor has a CEO who "is being investigated 'for Racketteering [sic] and training a tax scheme'"; ⁴⁹⁹

• The plaintiff franchisor "'steal[s]' stores from franchisees and pays nothing for them"; ⁵⁰⁰

• The plaintiff's software was not recommended by Microsoft, which instead recommended another company's software; ⁵⁰¹

[Page 916]

• The plaintiff company's "customers are 'dumping out of 3 year deals in year 2 to buy Axceler's ControlPoint'"; ⁵⁰²

• The plaintiff company "failed to pay vendors"; ⁵⁰³

• The plaintiff company engaged in "illegal behavior" by failing to pay vendors in connection with an event; ⁵⁰⁴

• The plaintiff investor and businessman had not paid his just debts; ⁵⁰⁵

• The plaintiff school had "failed to make home programming meaningfully available to [its] students and their families," had "failed to provide students appropriate services," had failed "to protect the rights and needs of its students and families," was "operating in violation of federal and state law," and was run by an executive director who "lacks sufficient clinical experience in autism and special education" (finding that the statements "could potentially be construed as defamatory per se"); ⁵⁰⁶

• The plaintiff former employee had earlier told a company client that "if you have something to say, then say it to my face"; ⁵⁰⁷

• The plaintiff law student "had been 'found guilty of multiple violations of State and Federal law, including

[Page 917]

	kidnaping, passport fraud, felony non-support of children, and violation of RICO'"; 508
•	The plaintiff college faculty member had "misadvised" students, which caused the students not to graduate on time; 509
•	The plaintiff college faculty member had not supplied her replacement department chair with necessary files and correspondence; 510
•	The plaintiff lawyer "just takes people's money"; 511
•	The plaintiff lawyer's clients would receive more money from insurance companies if they did not hire him; 512
•	The plaintiff retailer had complaints lodged against him by consumers who were trying to obtain their videotapes back from him, which implied that he had "absconded" with the tapes and returned them only when the television station was about to report on him; 513
•	The plaintiff had raped the defendant; 514
•	The plaintiff pharmacist violated HIPAA; 515
•	The plaintiff was "shacking up" with a woman; 516

[Page 918]

• The plaintiff employee lied about a previous job; ⁵¹⁷

• The plaintiff employee had "not properly managed his advertising budget" and had "misspent" advertising funds; ⁵¹⁸

• The plaintiff doctors had "abandoned" their patients and that there were "concerns" about the doctors' "competence"; ⁵¹⁹

• The plaintiff company was "going out of business"; ⁵²⁰

• The plaintiff doctor "was not a very good anesthesiologist," was "less than competent," did not "meet the standard of care with respect to . . . patients," was "not competent to practice anesthesiology," was suspended "for lack of professional competence," and was "professionally incompetent"; ⁵²¹

• The plaintiff employee "lost his temper" on the job and "just did not fit in"; ⁵²² and

• The plaintiff truck driver attempted to bribe a mechan-ic. ⁵²³

7.905 Examples of Communications Not Constituting Defamation Per Se. Virginia courts have found that the following statements did not constitute defamation per se:

[Page 919]

• The plaintiff University of Virginia official acted inappropriately in dealing with an alleged gang rape vic-tim; ⁵²⁴

• The plaintiff elementary school nurse made one mistake by allowing a student to go home with his aunt; ⁵²⁵

• The plaintiff employee made a single mistake by failing to follow a superior's directive (rather than habitually doing so); ⁵²⁶

• The plaintiff was in a dispute with a company who declared that "we will not back down from a fight if need be" (which dealt with the defendant's character, not the plaintiff's actions); ⁵²⁷

• The plaintiff former employee "has been placed on administrative leave . . . pending an internal investigation" (which the court found did not imply that the plaintiff was being investigated for defrauding the government and therefore was not "defamatory per se as a matter of law"); ⁵²⁸

• The plaintiff's "use of [Virginia Commonwealth University] internet and its server [was] violative of VCU Computer and Network Resources Use Policy" (because any allegation of criminal conduct did not involve moral turpitude); ⁵²⁹

[Page 920]

• The plaintiff property owner had diverted a stream's flow (which did not amount to larceny of surface water); ⁵³⁰

• The plaintiff property owner was dissatisfied with the "business arrangements" between a

...