7.6 Defamatory Meaning

7.6 DEFAMATORY MEANING

7.601 In General. As courts (and perhaps jurors) analyze an allegedly defamatory communication, they must determine whether the communication conveys a defamatory meaning. The law does not recognize as actionable every critical statement—the statement must carry a requisite "sting" to support the tort.

7.602 Per Se Versus Per Quod Defamation. Courts classify as "defamation per se" a communication whose defamatory nature appears on its face. ³⁰² For instance, a statement flatly accusing someone of robbing a bank amounts to defamation per se. Practitioners should not confuse this type of per se defamation with the defamation considered per se because of its serious nature. ³⁰³ A 2016 Eastern District of Virginia case seems to confuse the two types of defamation per se. ³⁰⁴

An action for "defamation per quod" arises if one must look beyond the statement itself to find the negative implication. ³⁰⁵ For instance, misstating a woman's address may not be defamatory on its face but could give rise to a defamation per quod action if the address houses a well-known brothel.

In 2014, an Eastern District of Virginia decision explained that "there is only one cause of action in Virginia for defamation" rather than separate

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causes of action for defamation per se, defamation, and defamation per quod. ³⁰⁶

The traditional distinction between per se and per quod defamation makes little difference in today's litigation. To a certain extent, it has been replaced by the concept of defamation by implication. ³⁰⁷

7.603 Elements (Including the "Sting").

A. In General. Most courts recognize a few basic principles in analyzing a statement's defamatory meaning.

B. Acceptance as Truth. The first component of the "defamatory meaning" test is that those receiving the communication must accept it as possibly true. Obvious humor or hyperbole will not support a defamation action. Because this parallels the opinion defense, it is discussed in paragraph 7.5. The truth element is discussed in paragraph 7.7.

C. Required "Sting." Second, only statements that generate a certain degree of "sting" will support a cause of action. For example, someone might accuse another person of wearing a suit that had not been dry-cleaned for a few days. Even if the statement was knowingly false and intended to defame the target of the false statement, accusing someone of wearing that suit simply does not have the type of "sting" that could support a defamation allegation. As explained below, federal and state courts take widely varying positions on the standard for assessing actionable "sting." A 2015 Virginia Supreme Court opinion did not clear up the confusion. ³⁰⁸

There is some question about the degree of "sting" required to state a claim under Virginia law. The Restatement (Second) of Torts contains the following fairly mild definition:

A communication is defamatory if it tends 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. ³⁰⁹

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This is the "sting" standard adopted in the new version of the Virginia Model Jury Instructions. ³¹⁰

Several decisions in Virginia have applied this standard. ³¹¹

Courts in both the Eastern District ³¹² and the Western District 313 of Virginia have also used the phrase "tendency to harm the plaintiff's reputation." This standard is even easier to meet than the Restatement standard.

In the Fourth Circuit's most extensive discussion of this issue, the court acknowledged the Restatement standard but seemed to define a much higher level of "sting."

In Virginia, the elements of libel are (1) publication of (2) an actionable statement with (3) the requisite intent. See generally, Gazette, Inc. v. Harris, 229 Va. 1, 325 S.E.2d 713, cert. denied, 472 U.S. 1032 (1985). To be "actionable," the statement must be not only false, but also defamatory, that is, it must "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." Restatement (Second) of Torts § 559. As one court put it, defamatory words are

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those that "make the plaintiff appear odious, infamous, or ridiculous." McBride v. Merrell Dow and Pharma-ceuticals, Inc., 540 F. Supp. 1252, 1254 (D.D.C. 1982), rev'd in part on other grounds, 230 U.S. App. D.C. 403, 717 F.2d 1460 (D.C. Cir. 1983). Merely offensive or unpleasant statements are not defamatory. ³¹⁴

Two 2012 Fourth Circuit opinions used this standard. ³¹⁵ Other Eastern District of Virginia cases ³¹⁶ and Western District of Virginia cases ³¹⁷ articulate the same standard. Several Virginia circuit court decisions have also articulated this higher standard. ³¹⁸

One Virginia circuit court used a "substantial danger to one's reputation" standard. ³¹⁹ It is unclear whether the court meant this as the standard for determining the required "sting" or whether the court picked that phrase up from the unique Virginia standard for determining whether a private figure must prove negligence or actual malice (discussed in paragraph 7.1802).

A 2015 Virginia Supreme Court opinion upheld the trial court's demurrer based on the lack of sufficient "sting" in allegedly defamatory statements about a dog kennel's developer. In Schaecher v. Bouffault, ³²⁰ the Supreme Court first correctly stated that "[a] false statement must have the requisite defamatory 'sting' to one's reputation." Interestingly, the Supreme

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Court's explanation of the "sting" standard recited both the mild Restatement (Second) standard and the "infamous, odious, or ridiculous" standard. The Supreme Court's holding presumably endorsed the higher standard because the Supreme Court upheld the lower court's demurrer. But it would have been more significant if the Supreme Court had described both standards and explicitly relied only on one—instead of articulating both of the quite different standards.

D. Required Overlap of Falsity and Sting. To support a defamation cause of action, the factual statement and the "sting" elements of the statement must overlap. In other words, the false factual statements must be harmful, and the harmful statements must be false. ³²¹

In 2011, a court in the Eastern District of Virginia dismissed a defamation action because "the purported falsity and the defamatory 'sting' set forth in the Complaint do not coincide." ³²²

In 2016, an Eastern District of Virginia case granted summary judgment in a former employee's case against her former employer because the effect of the admittedly false statement (that the plaintiff "up and left" rather than being terminated) "was no worse than the truth" and therefore could not support a defamation action. ³²³

7.604 Difficulty of Drawing the Line. Courts sometimes have trouble distinguishing between mildly critical statements that cannot support a defamation action and statements with enough "sting" to state a valid defamation cause of action. And just as statements from the same case show up on lists of facts and nonactionable opinion (discussed in paragraph 7.5), courts sometimes find that a defendant's rantings about a plaintiff contain both actionable and nonactionable statements, depending on the sting. Courts must therefore analyze each of the allegedly defamatory statements.

7.605 Examples of Communications Capable of Defamatory Meaning. Courts exercising the gatekeeper function have found that the following communications were capable of a defamatory meaning and have allowed the plaintiffs' defamation lawsuits to proceed:

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