The Law of Defamation in Virginia
| Publication Date: |
2018 |
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Print (267 pages, softcover, 1 volume) |
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| Product #: |
878 |
CHAPTER 1: NATURE OF THE COMMUNICATION
1.1 IN GENERAL
1.2 “COMMUNICATION” REQUIREMENT
1.3 CIVIL VERSUS CRIMINAL DEFAMATION
1.4 LIBEL VERSUS SLANDER
1.5 LIABILITY FOR THIRD PARTY’S DEFAMATION
1.6 UNITED KINGDOM LAW
CHAPTER 2: PUBLICATION OF THE COMMUNICATION
2.1 IN GENERAL
2.2 INTRA-CORPORATE COMMUNICATION
2.201 In General
2.202 Traditional Doctrine
2.203 Expansion of the Doctrine
2.204 Contraction of the Doctrine
2.3 OTHER PUBLICATION ISSUES
2.4 REPETITION BY THE ALLEGED DEFAMER
2.401 In General
2.402 Repetition Creating New Cause of Action
2.403 Multiple Later Recipients of Defamatory
Communication
2.404 Possible Repetition of the Defamation
2.5 REPUBLICATION BY OTHERS
2.501 In General
2.502 Liability of Original Defamer
2.503 “Compelled Self-Publication” Doctrine
2.504 Liability of Those Who Repeat the Defamation
2.6 FAILURE TO ACT AS ACTIONABLE “PUBLICATION”
2.601 In General
2.602 Failure to Retract
2.603 Failure to Correct Third Party’s Statement
2.7 ROLE OF COURT AND JURY
CHAPTER 3: INTERPRETING THE COMMUNICATION
3.1 BASIC RULES
3.2 PRINT MEDIA
3.201 In General
3.202 Headlines
3.203 Electronic Media
3.204 Advertisements or Promotions
3.3 ROLE OF COURT AND JURY
CHAPTER 4: FACT VERSUS OPINION
4.1 IN GENERAL
4.2 FEDERAL CONSTITUTIONAL PROTECTION
4.3 VIRGINIA CONSTITUTIONAL PROTECTION
4.4 FOUR-PART TEST
4.5 DIFFICULTY OF DRAWING THE LINE
4.6 RELATIONSHIP BETWEEN OPINION AND FACTS
4.7 IRONIC NATURE OF THE OPINION DOCTRINE
4.8 VIRGINIA SUPREME COURT CASES
4.9 EXAMPLES OF ACTIONABLE STATEMENTS OF FACT
4.10 EXAMPLES OF NONACTIONABLE OPINION
4.1001 In General
4.1002 Virginia Cases
4.1003 Cases from Other States
4.11 WORKPLACE DEFAMATION
4.12 RHETORICAL HYPERBOLE
4.13 ROLE OF COURT AND JURY
CHAPTER 5: DEFAMATORY MEANING
5.1 IN GENERAL
5.2 PER SE VERSUS PER QUOD DEFAMATION
5.3 ELEMENTS (INCLUDING THE “STING”)
5.301 In General
5.302 Acceptance as Truth
5.303 Required “Sting”
5.304 Required Overlap of Falsity and Sting
5.4 DIFFICULTY OF DRAWING THE LINE
5.5 EXAMPLES OF COMMUNICATIONS CAPABLE OF
DEFAMATORY MEANING
5.6 EXAMPLES OF COMMUNICATIONS NOT CAPABLE OF
DEFAMATORY MEANING
5.7 JOB EVALUATIONS AND TERMINATIONS
5.8 ROLE OF COURT AND JURY
5.801 General Rule
5.802 Sufficiency of Proof
CHAPTER 6: TRUTH VERSUS FALSITY
6.1 IN GENERAL
6.2 BURDEN OF PROOF
6.3 “SUBSTANTIAL TRUTH”
6.4 EXAMPLES OF TECHNICALLY FALSE BUT
“SUBSTANTIALLY TRUE” STATEMENTS
6.5 TRUE STATEMENTS WITH DEFAMATORY IMPLICATIONS
6.6 TRUTHFUL TRANSMISSION OF A THIRD PARTY’S
DEFAMATION WITHOUT ENDORSEMENT
6.7 TRUE STATEMENTS BELIEVED TO BE FALSE
6.8 BINDING NATURE OF PLAINTIFF’S ADMISSION
OF TRUTH
6.9 ROLE OF COURT AND JURY
CHAPTER 7: DEFAMATION BY IMPLICATION
7.1 IN GENERAL
7.2 VIRGINIA APPROACH
7.3 EXAMPLES OF STATEMENTS CARRYING
DEFAMATORY IMPLICATION
7.4 EXAMPLES OF STATEMENTS NOT CARRYING
DEFAMATORY IMPLICATION
7.5 INTENT
7.6 ROLE OF COURT AND JURY
CHAPTER 8: DEFAMATION PER SE
8.1 IN GENERAL
8.2 CATEGORIES
8.3 SPECIAL DAMAGES
8.4 EXAMPLES OF COMMUNICATIONS CONSTITUTING
DEFAMATION PER SE
8.5 EXAMPLES OF COMMUNICATIONS NOT CONSTITUTING
DEFAMATION PER SE
8.6 CONFUSION ABOUT THE PER SE DOCTRINE
8.7 WORKPLACE DEFAMATION
8.8 DEFAMATION OF CORPORATIONS
8.9 CONTINUING IMPORTANCE OF THE DOCTRINE
8.10 ROLE OF COURT AND JURY
CHAPTER 9: WORK-RELATED DEFAMATION
9.1 IN GENERAL
9.2 FEDERAL LABOR LAW PREEMPTION
9.3 FEDERAL ERISA PREEMPTION
9.4 OSHA PREEMPTION
9.5 WORKERS’ COMPENSATION LAW
9.6 ARBITRATION AGREEMENTS
9.7 COMPULSORY COUNTERCLAIMS
9.8 OTHER ISSUES
CHAPTER 10: RELATIONSHIP TO OTHER CLAIMS
10.1 IN GENERAL
10.2 CONSTITUTIONAL TORTS
10.3 INSULTING WORDS
10.301 In General
10.302 Emphasis on Likely Effect
10.303 Continuing Debate About the Elements
10.304 Examples of Communications Stating an
Insulting Words Claim
10.305 Examples of Communications Not Stating an
Insulting Words Claim
10.306 Role of Court and Jury
10.307 Right to Privacy and “False Light”
10.4 MISAPPROPRIATION OF NAME OR LIKENESS FOR
COMMERCIAL PURPOSES
10.5 OTHER COMMON LAW TORT CLAIMS BY PUBLIC
PLAINTIFFS
10.6 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
10.7 INTENTIONAL INTERFERENCE WITH CONTRACT
10.8 TORTS FOCUSING ON THE NEWSGATHERING PROCESS
10.9 STATUTORY CONSPIRACY
10.10 CONTRACTS
10.11 RICO CLAIMS
10.12 OTHER STATUTES
CHAPTER 11: STATUTE OF LIMITATIONS
11.1 IN GENERAL
11.2 PUBLICATION
11.3 “SINGLE PUBLICATION” RULE
11.301 In General
11.302 Media Cases
11.303 Nonmedia Cases
11.4 ACCRUAL BASED ON EXTRINSIC EVENTS
11.5 REPUBLICATION
11.6 ACTIONS BASED ON THIRD PARTY’S COMMUNICATION
11.7 PLEADING EXACT WORDS AS CREATING A NEW
CAUSE OF ACTION
11.8 TOLLING OF THE STATUTE OF LIMITATIONS
11.9 SIMULTANEOUS CRIMINAL AND CIVIL CASES
11.10 RELATION BACK
11.11 CHOICE OF LAW
11.12 ROLE OF COURT AND JURY
CHAPTER 12: SUBJECT OF THE COMMUNICATION
12.1 INTRODUCTION
12.2 “OF AND CONCERNING” TEST
12.201 In General
12.202 Naming the Test
12.203 Substance
12.3 CATEGORIES OF SUBJECTS
12.301 In General
12.302 Group Libel
12.303 Deceased Persons
12.4 PUBLIC VERSUS PRIVATE
12.401 In General
12.402 Reason for the Difference
12.403 Public Plaintiffs
12.5 CORPORATE PLAINTIFFS
12.501 In General
12.502 Public Versus Private
12.503 Standing Issues
12.6 “LIBEL-PROOF” DOCTRINE AND RELATED CONCEPTS
12.7 PRODUCT DISPARAGEMENT
12.8 SLANDER OF TITLE
12.9 FOOD DISPARAGEMENT
12.10 ROLE OF COURT AND JURY
CHAPTER 13: ABSOLUTE PRIVILEGE
13.1 IN GENERAL
13.2 GOVERNMENTS AND THEIR EMPLOYEES
13.201 In General
13.202 Federal and State Governments
13.203 Foreign Governments
13.204 Government Officials
13.3 STATUTORY ABSOLUTE PRIVILEGE
13.301 In General
13.302 Federal Statutes
13.303 Virginia Statutes
13.4 CHURCH MATTERS
13.5 LEGISLATORS
13.6 MANDATED STATEMENTS
13.7 CHARITABLE IMMUNITY
13.8 JUDICIAL PROCEEDINGS
13.801 In General
13.802 Pleadings
13.803 Testimony
13.9 QUASI-JUDICIAL PROCEEDINGS
13.901 In General
13.902 Factors
13.903 Examples
13.10 CONTEXT OF THE STATEMENTS: PERIPHERAL
COMMUNICATIONS
13.1001 Press Release Announcing Lawsuit
13.1002 Restatement Standard
13.1003 Virginia Approach
13.1004 Account of Public Records Qualified Privilege
13.11 LEGISLATIVE PROCEEDINGS
13.12 ROLE OF COURT AND JURY
CHAPTER 14: QUALIFIED PRIVILEGE
14.1 IN GENERAL
14.2 STATUTORY QUALIFIED PRIVILEGE
14.3 COMMON LAW QUALIFIED PRIVILEGE GENERALLY
14.301 Defendant’s Status
14.302 Context of Statement
14.303 Examples
14.4 ABUSE OF THE PRIVILEGE
14.401 In General
14.402 Type of Abuse That Can Overcome a
Qualified Privilege
14.403 Confusion About the Type of Malice That
Can Overcome a Qualified Privilege
14.404 Defendant’s Failure to Retract a False and
Defamatory Statement
14.5 FAIR REPORTS OF PUBLIC RECORDS
14.501 In General
14.502 Level of Privilege
14.503 Applicability
14.504 Type of “Malice” Required to Overcome the
Qualified Privilege
14.6 COMMENT ON MATTERS OF PUBLIC CONCERN
14.7 ROLE OF COURT AND JURY
CHAPTER 15: FAULT: DEFINING THE STANDARDS
15.1 INTRODUCTION
15.2 CONSTITUTIONAL MALICE
15.201 In General
15.202 Defining the Terms
15.203 Applying the General Rules
15.3 NEGLIGENCE
CHAPTER 16: FAULT: PUBLIC PLAINTIFFS
16.1 IN GENERAL
16.2 HISTORY
16.3 NEW YORK TIMES DOCTRINE
16.4 DEFAMATORY IMPLICATION
16.5 DEFENDANTS WHO DENY MAKING THE ALLEGED
STATEMENTS
16.6 BURDEN OF PROOF
16.7 ROLE OF COURT AND JURY
CHAPTER 17: FAULT: PRIVATE PLAINTIFFS
17.1 IN GENERAL
17.2 THE VIRGINIA STANDARD GENERALLY
17.201 Threshold Determination
17.202 Dual Standard
17.3 APPLYING THE STANDARD
17.301 In General
17.302 Courts’ Determination
17.303 Per Se Defamation
17.4 ROLE OF COURT AND JURY
CHAPTER 18: IMPUTED LIABILITY
18.1 IN GENERAL
18.2 CORPORATIONS
18.3 AGENT’S INDIVIDUAL LIABILITY
18.4 PRINCIPAL’S PRIMARY LIABILITY FOR THIRD
PARTY’S DEFAMATION
18.5 COMPENSATORY DAMAGES
18.6 PUNITIVE DAMAGES
18.7 ROLE OF COURT AND JURY
CHAPTER 19: DAMAGES
19.1 IN GENERAL
19.2 PRESUMED DAMAGES
19.201 In General
19.202 Availability
19.203 Categories of Defamation Per Se
19.204 Fault Requirement
19.205 Scope
19.206 Role of Court and Jury
19.3 COMPENSATORY DAMAGES
19.301 In General
19.302 Speculative Nature
19.303 Limiting Factors
19.304 Exacerbating Factors
19.305 Attorney Fees
19.306 Burden of Proof
19.307 Role of Court and Jury
19.4 PUNITIVE DAMAGES
19.401 In General
19.402 Public Plaintiffs
19.403 Private Plaintiffs
19.404 Statutory Cap
19.405 Discussing Punitive Damages
19.406 Role of Court and Jury
19.5 STATUTORY MITIGATION
CHAPTER 20: LITIGATION: PRELIMINARY ISSUES
20.1 IN GENERAL
20.2 ARBITRATION
20.3 EXHAUSTION OF REMEDIES
20.4 STANDING
20.5 SUING THE RIGHT DEFENDANT
20.6 SUBJECT MATTER JURISDICTION: FEDERAL COURTS
20.601 Preemption
20.602 Jurisdiction of State Claims in Federal Court
20.603 Diversity Jurisdiction
20.604 Forum Non Conveniens
20.7 SUBJECT MATTER JURISDICTION: STATE COURTS
20.8 PERSONAL JURISDICTION
20.9 LONG-ARM JURISDICTION: TRADITIONAL RULES
20.901 In General
20.902 Section 8.01-328.1(A)(1)
20.903 Section 8.01-328.1(A)(3)
20.904 Section 8.01-328.1(A)(4)
20.905 Conspiracy
20.10 LONG-ARM JURISDICTION: INTERNET DEFAMATION
20.1001 In General
20.1002 Section 8.01-328.1(A)(3)
20.1003 Section 8.01-328.1(A)(4)
20.11 VENUE
20.12 CHOICE OF LAWS
20.1201 Substantive Law
20.1202 National Media Cases
20.1203 Statute of Limitations
CHAPTER 21: LITIGATION: INITIAL PLEADINGS AND
SUMMARY DISPOSITIONS
21.1 IN GENERAL
21.2 INITIAL PLEADING: IDENTIFYING THE EXACT
DEFAMATORY STATEMENT
21.201 In General
21.202 State Courts
21.203 Federal Courts
21.3 INITIAL PLEADING: OTHER SPECIFICITY
REQUIREMENTS
21.301 In General
21.302 Details of Facts and Circumstances
21.303 Facts Supporting Malice Allegations
21.304 Plaintiff’s Identity
21.305 Defendant’s Identity
21.306 Other Requirements
21.4 STATUTORY PROVISIONS
21.5 COURT AS GATEKEEPER
21.6 DEMURRERS
21.7 NEW FEDERAL STANDARD FOR MOTION TO DISMISS
21.8 PRESERVING DEFENSES AFTER UNSUCCESSFUL
DEMURRER
21.9 REPLEADING
21.10 NONSUITS
21.11 MOTIONS TO STRIKE
21.12 AMENDMENTS
21.13 SUMMARY JUDGMENT
21.1301 In General
21.1302 Federal Courts
21.1303 State Courts
CHAPTER 22: LITIGATION: OTHER ISSUES
22.1 IN GENERAL
22.2 DISCOVERY
22.201 In General
22.202 Counterintuitive Role of Truth
22.203 Plaintiff’s Right to Discover a Media Defendant’s
Editorial Process
22.204 Discovery of an Anonymous Internet Poster’s Identity
22.205 Limitations on Discovery
22.206 Other Discovery Issues
22.3 DILEMMA FACING DEFENDANTS WHO DENY MAKING
THE DEFAMATORY STATEMENTS
22.4 REPORTER’S PRIVILEGE
22.5 JUDICIAL ESTOPPEL
22.6 COLLATERAL ESTOPPEL
22.7 INJUNCTIONS
22.8 CONSENT
22.9 EVIDENTIARY ISSUES
22.901 General Rule
22.902 Admissibility of Evidence
22.903 Statutory Prohibitions
22.904 Plaintiffs’ Admissions
22.905 Expert Testimony
22.906 Preserving Defenses
22.907 Motions In Limine
22.10 SANCTIONS
22.11 JURY INSTRUCTIONS
22.1101 In General
22.1102 Varying Burdens of Proof
22.1103 Statements to Be Reviewed by the Jury
22.1104 Proper Instruction for Interpreting the Alleged
Defamatory Statement
22.1105 Special Jury Interrogatories and Verdict Forms
22.1106 Other Jury Instruction Issues
22.12 OFFSET
22.13 RULE 50 MOTIONS
22.14 REMITTITUR
22.15 NEW TRIALS
22.16 AVOIDING CONSTITUTIONAL ISSUES
22.17 OTHER ISSUES
CHAPTER 23: LITIGATION: APPEALS
23.1 IN GENERAL
23.2 STANDARD OF REVIEW
23.201 In General
23.202 Constitutional Malice Issues
23.203 No Constitutional Malice Issues
23.204 Federal Courts’ Standards of Review
23.3 DAMAGES
23.301 In General
23.302 Compensatory Damages
23.303 Punitive Damages
23.304 Virginia Trend
23.4 REMITTITUR
23.5 OTHER ISSUES
CHAPTER 24: PRACTICAL CONSIDERATIONS
24.1 IN GENERAL
24.2 SEEKING NON-LITIGATION RELIEF
24.3 MIRAGE OF SUBSTANTIAL DAMAGES
24.4 “SKELETONS IN THE CLOSET”
24.5 MEDIA DEFENDANTS’ ABILITY TO DECLARE A VICTORY
24.6 CONCLUSION
TABLE OF AUTHORITIES
INDEX
Thomas E. Spahn
Thomas E. Spahn practices as a commercial litigator with McGuireWoods in Tysons Corner, Virginia. Mr. Spahn was selected as the 2013 metro-Washington DC “Lawyer of the Year” for “Bet the Company Litigation” by The Best Lawyers in America (Woodward/White, Inc.). He has served on the ABA Standing Committee on Ethics and Professional Responsibility. He is also is a Member of the American Law Institute and a Fellow of the American Bar Foundation. Mr. Spahn has written extensively on attorney-client privilege, ethics, and other topics and has spoken at over 1,700 CLE programs throughout the United States and in several other countries. He is the author of The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner’s Guide (Virginia CLE 2013) and a companion publication, A Virginia-Specific Summary Guide: The Attorney-Client Privilege and the Work Product Doctrine (Virginia CLE 2017). He is also the author of individual chapters in several other Virginia CLE publications. Mr. Spahn graduated magna cum laude from Yale University and received his J.D. from Yale Law School.
The Law of Defamation in Virginia
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