7.8 DEFAMATION BY IMPLICATION
7.801 In General.
Because courts must view an allegedly defamatory statement in context, an undeniably true statement may nevertheless convey a false and defamatory impression. For instance, in Memphis Publishing Co. v. Nichols, 4240 a newspaper reported that a wife came home to find her husband there with another woman and shot her. The story implied that the husband and the "other woman" were having an affair. However, the newspaper failed to report that the husband and the "other woman" were attending a neighborhood meeting with the "other woman's" husband and others. The Tennessee Supreme Court held that the false implication could support a defamation claim. 4241
7.802 Virginia Approach.
Virginia has to a certain extent built a "defamation by implication" doctrine into its basic rules on how to interpret an allegedly defamatory communication. It makes little practical difference whether the court applies the doctrine as part of its threshold review of the statements or as part of a separate stand-alone analysis.
A 2015 Virginia Supreme Court case provided a textbook example of defamation by implication and reversed the trial court's dismissal of plaintiff's case on demurrer. In Pendleton v. Newsome, 4242 a parent whose child died at school from a peanut allergy sued the school district for implying that she had not provided the necessary medication to the school. The school's statements emphasized how important it was for parents to provide the proper medication to their child's school. The statements were undoubtedly accurate but falsely implied that the plaintiff had not done so. 4243
In 1995, the Virginia Supreme Court took an expansive view of such a defamation claim. In Schnupp v. Smith, 4244 a policeman reported that the plaintiff was present in a work van that apparently was involved in a drug transaction. The plaintiff sued the police officer for defamation, and the officer replied that he had merely reported provable objective facts to the plaintiff's employer. However, the court, indicating that "a defamatory charge may be made by inference," found that the statements, "assisted by the reasonable inferences to be drawn from the words used," falsely imputed the crime of aiding and abetting drug possession. 4245 The court held that the statements amounted to per se defamation.
In 2014, the Virginia Supreme Court took a different direction and affirmed the trial court's striking of a $3 million compensatory damage jury award in an implied defamation case. The plaintiff argued that a newspaper article implied that he had used his position as a high school employee to arrange lenient punishment for his son after a fight. As the Virginia Supreme Court explained, "[w]here, as here, a plaintiff alleges that he has been defamed not by statements of fact that are literally true but by an implication arising from them, the alleged implication must be reasonably drawn from the words actually used." 4246
In 2015, the Virginia Supreme Court also took a narrower view, holding that inferences cannot rise above the language of the documents or the statements themselves. 4247
Federal courts have taken a fairly broad approach. For instance, in one of the many cases involving the alleged anthrax killer, the Fourth Circuit held that a New York Times reporter could not avoid a defamation lawsuit by pointing to a certain individual as the possible "anthrax killer" while "simply . . . pairing a charge of wrongdoing with a statement that the subject must, of course, be presumed innocent." 4248
In a University of Virginia official's successful defamation suit against Rolling Stone LLC, the court declined to allow the plaintiff to add an additional defamation claim late in the trial, alleging that the Rolling Stone article falsely implied that the plaintiff had intended to be the alleged rape victim's friend while "seeking to suppress sexual assault reporting." 4249
In 2017, courts in both the Eastern District and the Western District of Virginia dealt with claims alleging defamation by implication.
In Virginia Citizens Defense League v. Couric, 4250 the plaintiffs claimed that they were impliedly defamed in a television broadcast narrated by Katie Couric. Two individual gun rights advocate plaintiffs alleged (apparently without any contradiction from the defendants) that when Couric began her interview she asked them to just sit silently for about 10 seconds while her crew calibrated the recording equipment and camera. During the interview, Couric asked the plaintiffs how felons or terrorists could be deterred from buying guns if there...
