Some defamation cases are so lacking in merit that a defendant can pick and choose among multiple grounds for dismissal. Virginia’s anti-SLAPP statute, for example, is designed to provide a remedy for defendants who are sued for exercising their First Amendment rights while speaking on matters of public concern. A demurrer, on the other hand, allows a defendant to challenge the legal sufficiency of the plaintiff’s complaint in situations where the complaint fails to present a valid claim even if one assumes all the plaintiff’s allegations are true. The anti-SLAPP statute authorizes an award of ..read more

As noted previously on this blog, if an employer falsely suggests to others that an employee was fired for cause when, in truth, the employee quit the job voluntarily, the employer may be liable for defamation. Similarly, when news outlets report on the separation of public figures from their places of employment, they need to be careful with the words they use. Nobody wants to open a newspaper and encounter a story about how they were forcibly removed from a position they voluntarily quit, leaving readers with the false impression that some sort of misconduct occurred. A recent Virginia case ..read more

In most cases, it won’t be actionable to call for the resignation of a public official or to question that person’s ethics or professionalism. The First Amendment is intended to protect robust debate over the performance of government officials, and statements like these are generally considered to be non-actionable expressions of opinion. But in situations where criticisms are laden with factual content, such as when they imply the existence of false factual assertions, they may be deemed defamatory and actionable. The Virginia Court of Appeals recently reinstated a previously dismissed defam ..read more

Competing for customers by telling them a competitor is “under investigation” is surprisingly common. I hear this from prospective clients all the time. Most of the time, the accusation isn’t any more specific than that the client is under investigation for something. No one really knows what exactly, but the implication is that if some authority is investigating the client for something–anything–then the client is probably guilty of doing something improper and should be shunned by customers. I suppose one reason this appears to be a fairly common phenomenon is that many think that if they ke ..read more

When public figures bring defamation lawsuits, First Amendment concerns dictate that they must demonstrate “actual malice” as a prerequisite to recovery (See New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964)). This is generally defined as either actual knowledge of falsity or, at a minimum, reckless disregard for the truth. Falsity alone is insufficient to support a defamation claim brought by a public figure; if the defendant had no reason to know that his or her statements about the public figure were false, the defendant will not be liable for defamation. Knowing this, public figures ..read more

Defamation actions cannot be based on expressions of pure opinion because such statements are protected by the First Amendment. To survive a motion to dismiss, a plaintiff needs to allege a false assertion of fact. Separating fact from opinion, however, is not always as clear-cut as one might expect. Courts have reached differing conclusions on whether words like “racist” and “unethical” state facts or merely personal opinions. The easiest way to distinguish fact from opinion is to ask whether the statement is capable of being proven true or false. If so, it’s likely a factual statement. (Stat ..read more

To be actionable as defamation in Virginia, the words used must be more harmful to a person’s reputation than a common insult or an accusation that most people would consider harmless or unimportant in evaluating a person’s character. Defamatory words are those which “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.” (See Bryant-Shannon v. Hampton Roads Cmty. Action Program, Inc., 299 Va. 579, 585 (2021)). But who, exactly, is this “community”? Who are these third persons in whose eyes d ..read more

If truth is a complete defense to a defamation action, what about “scientific truth”? Are scientific findings “facts” that can form the basis of a defamation action if a particular scientist contends they are inaccurate? If so, how much of a consensus is required before a matter of scientific inquiry can be considered “settled” and thus a matter of established fact? Anti-vaxxers have filed a number of defamation actions around the country against media outlets accusing them of spreading misinformation. Few (if any) have been successful. The consensus among the courts appears to be that defamat ..read more

Section 8.01-223.2 of the Virginia Code, unofficially recognized as Virginia’s anti-SLAPP statute, is designed to deter frivolous “SLAPP” lawsuits brought for the improper purpose of harassing individuals who exercise their protected right to freedom of speech. The statute immunizes against defamation liability most statements made in good faith on matters of public concern (i.e., statements relating to any matter of political, social, or other legitimate concern to the community). A defendant who successfully invokes the anti-SLAPP statute may be entitled to recover attorneys’ fees from the p ..read more

When does ordinary workplace criticism become actionable defamation? While there’s no hard and fast rule, the answer usually lies in the extent to which the criticism involves provably false factual assertions. Expressions of pure opinion are not actionable, so a performance review that merely contains negative assessments of an employee’s performance won’t support a libel suit absent the inclusion of express or implied falsehoods. An accusation that an employee is slow to pay vendors? Not defamatory, because “slow” is relative and means different things to different people. An accusation that ..read more