7.13 SUBJECT OF THE COMMUNICATION
7.1301 Introduction. The rules governing a defamation cause of action depend to a large extent on whom or what the plaintiff has targeted with the allegedly defamatory communication.
7.1302 "Of and Concerning" Test.
A. In General. Defamatory words may not support a cause of action unless they directly or inferentially refer to the plaintiff. 677
B. Naming the Test. The first issue involves nomenclature. Treatises and other states universally call this doctrine the "of and concerning" test. 678 Unfortunately, Virginia law has had trouble for nearly 200 years deciding what to call this doctrine.
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The Virginia Supreme Court used the term "of or concerning" as early as 1811. 679 This term also showed up later in the 19th century. 680 However, in 1874 the Virginia Supreme Court used the language "of and concerning." 681 In the early 20th century, the court used the phrases inter-changeably. 682 One 1914 case used both terms. 683 For the next 70 years, the court seemed to prefer the "of and concerning" formulation. 684
In Gazette, Inc. v. Harris, 685 the Virginia Supreme Court cited the trial court's use of the "of and concerning" phrase but itself reverted to the "of or concerning" phrase (citing the 1811 Cave decision). Since 1985, the court has again used both phrases. 686 This judicial inconsistency reached a crescendo in a 2002 Virginia Supreme Court case 687 in which the court used the terms "of and concerning" and "of or concerning" in the very same paragraph.
Conceptually, the word "or" generally has a more expansive meaning than the word "and." Fortunately, Virginia courts' inability to consistently use the same term appears not to have had any impact on the outcome in any case. Still, it is interesting to note the courts' inability to adopt a consistent standard.
The Virginia Model Jury Instructions use the simpler phrase "about the plaintiff." 688
C. Substance. However articulated, the test has never required that the defamatory communication refer to the plaintiff by name. It is sufficient if the plaintiff can be identified as the subject of the communication. 689 For instance, one Virginia circuit court found that the parents of a murdered
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student could establish this element of a defamation claim against a newspaper because the newspaper identified the murdered student. 690
Courts seem not to have dealt with what standard to use when interpreting this general principle. The issue is easy if the defamer refers to "the controversial owner of the New York City American League baseball team." On the other hand, suppose the alleged defamation refers to "an Ivy League graduate born in eastern Ohio and now working in a Baltimore law firm and commuting from Annapolis." An Internet search might be able to find that person, and a private investigator could almost surely track the person down. What type of diligence is required before a defamatory statement will be considered to be "of or concerning" a particular person? Virginia courts have not articulated the standard, probably because it only rarely arises.
In Dean v. Dearing, 691 the Virginia Supreme Court implied that a plaintiff trying to meet the "of and concerning" standard must do more than simply include a conclusory allegation in the complaint, although that case involved constitutional implications and therefore might not have created a new pleading requirement applicable to all plaintiffs.
The Virginia Supreme Court has explained that a plaintiff can point to various statements about the plaintiff that were made "over a relatively short period of time" to meet the "of and concerning" standard, even if some of the statements identify the plaintiff and some do not but would tend to identify the subject of the allegedly defamatory statements. 692 Interestingly, the court explicitly indicated that the multiple communications can satisfy this standard even if the identifying communication comes after other communications (presumably defamatory) that do not contain identifying information. For instance, someone might tell a fellow neighbor: "I promised not to say who, but someone who lives one block over on Elm Street is having an affair with his secretary." Two days later, the person might call the neighbor again and say "Remember that person I mentioned yesterday? It's Fred."
This principle makes sense with communications among individuals who are each interested in what the other has to say. It might make sense conceptually to apply the same principle in a media case, but it necessarily
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rests on a fairly implausible presumption—that those reading, watching, or listening to media reports remember and collate information they learn at different times.
In 2012, an Eastern District of Virginia court found that a defamation claim failed the "of or concerning" test because "no reader could infer that the language used affirmatively suggests that the author intends or endorses such" a defamatory inference. 693 The "of or concerning" test normally focuses on whether someone reading or hearing the allegedly defamatory statement will know the subject of the statement, not whether he or she will tie the allegedly defamatory statement to the subject.
The "of and concerning" standard has continued to be a tempting defense in some cases. Some defendants have relied on the doctrine and escaped liability. 694 Other defendants have not been successful. 695 One circuit court found that a college professor could not assert a defamation claim because "the statement was not about the plaintiff. It was about plaintiff's tenure package." 696
Continuing the confusion, the Virginia circuit court handling a fraternity's defamation case against Rolling Stone used the phrase "of and con-cerning," 697 while the court handling a University of Virginia official's successful defamation action against Rolling Stone used the phrase "of or con-cerning." 698
7.1303 Categories of Subjects.
A. In General. There are several particular types of plaintiffs whose defamation claims raise special issues.
B. Group Libel. If the communication refers to more than one person, special considerations apply. Courts generally allow members of a
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defamed group to pursue a defamation action only if the group has so few members that the defamation necessarily casts aspersions on all of them as individuals. 699 For instance, a statement that "all lawyers are thieves" will not create a cause of action for any one lawyer. 700 On the other hand, a comment that all members of a five-person law firm are dishonest may be actionable.
The Virginia Supreme Court has analyzed the interface between constitutional law, the "of and concerning" requirement, and what it called the "small group theory" of defamation. The court held that constitutional law prohibited a government employee from relying on the "small group theory" to satisfy the "of and concerning" standard because the use of the common law "small group theory" in public official defamation actions would amount to an impermissible "libel of government" claim. 701
In 2016, the circuit court handling a University of Virginia fraternity's defamation action against Rolling Stone concluded that the article was "of and concerning" that one fraternity as an entity, rather than all fraternities or any individual fraternity member. 702
C. Deceased Persons. Virginia does not recognize defamation of deceased persons. Therefore, neither the estate nor any relatives of a deceased person may sue for defamatory statements about the deceased. 703
7.1304 Public Versus Private.
A. In General. The court must always determine whether a plaintiff is "public" or "private." Litigants often devote considerable effort to this threshold analysis because it can determine the outcome of the case.
B. Reason for the Difference. Public plaintiffs generally face a much higher burden of proof than private plaintiffs. Courts justify this higher standard for public plaintiffs by noting that they (i) have voluntarily undertaken
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the risks of notoriety and (ii) have more opportunities to rebut libelous statements. 704
C. Public Plaintiffs.
1. In General. Plaintiffs may be considered "public" because of the office they hold or because of the fame they have achieved.
2. Public Officials. 705 Plaintiffs who hold public office or employment do not automatically fall into the "public" plaintiff category. 706 Most courts consider government employees "public" for defamation purposes only if they hold a high position, are elected, deal directly with the public, or take part in law-enforcement activities. 707
The real debate over "public official" status tends to involve relatively low level public employees, such as police officers or teachers. For instance, in Richmond Newspapers, Inc. v. Lipscomb, 708 the Virginia Supreme Court held that a public high school teacher was not a "public official" because she was not elected and did not influence or even appear to influence or control "any public affairs or school policy." 709
The Fourth Circuit dealt with the status of the alleged anthrax killer. The plaintiff had formerly worked for the government and continued to "perform governmental functions as a contractor with the government." 710 The plaintiff also continued to train government officials and make recommendations on biological weaponry to the government. At the time of the alleged defamation, he was receiving government funding for his work. The Fourth Circuit had no trouble finding the plaintiff to be a "public official."
[T]his Court finds that Plaintiff qualifies as a public official for purposes of this defamation action. Plaintiff's participation in government training and decisionmaking
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placed him in a position of public trust. The public had an independent interest in Plaintiff's qualifications and performance given the highly sensitive nature of his work and its...
