The Law of Defamation in Virginia

Publication Date:	2018
Available Formats:	Print (267 pages, softcover, 1 volume)
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Product #:	878

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Content Highlights:

Nature, Publication, and Intepretation of the Communication
Fact Versus Opinion
Defamatory Meaning
Truth Versus Falsity
Defamation by Implication
Defamation Per Se
Work-Related Defamation
Relationship to Other Claims
Statute of Limitations
Subject of the Communication
Absolute and Qualified Privilege
Fault: Standards and Plaintiffs
Imputed Liability
Damages
Initial Pleadings and Summary Dispositions
Litigation Issues
Practical Considerations

This book is drawn from the 2018 edition of The Virginia Lawyer: A Deskbook for Practitioners.

Defamation law represents a complicated mix of old common law principles, constitutional doctrine (both federal and state), and statutes. At its heart, defamation law highlights the tension between two elemental principles of Virginia’s Constitution: (i) the freedom that allows “any citizen [to] freely speak, write, and publish his sentiments on all subjects”; and (ii) each citizen’s obligation to be “responsible for the abuse of that right.” Attempts to reconcile these basic principles have spawned a mishmash of rules and exceptions.

The Law of Defamation in Virginia strives to help Virginia lawyers understand this confusing and state-specific law, where practitioners cannot find much guidance even in the standard treatises. This thoughtful and well-researched guide written by Thomas E. Spahn, covers the subject in all its complexity and will help counsel to effectively represent clients involved in these cases.

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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

Authors

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.

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