IN THE SUPREME COURT OF VIRGINIA

RECORD NO. 122024

PHILLIP D. WEBB,

Appellant,

v.

VIRGINIAN-PILOT MEDIA COMPANIES, LLC

Appellee.

BRIEF AMICUS CURIAE OF VIRGINIA PRESS ASSOCIATION, ET AL.

Craig Thomas Merritt (VSB No. 20281) cmerritt@cblaw.com Christian & Barton, L.L.P. 909 East Main Street, Suite 1200 Richmond, Virginia 23219-3095 Telephone: (804) 697-4100 Facsimile: (804) 697-4112

Counsel for Amici Curiae

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TABLE OF CONTENTS Table of Authorities .................................................................................. iii Statement of the Case .............................................................................. 1 Statement of Facts .................................................................................... 5 Standards of Review ............................................................................... 13 Summary of Argument ............................................................................ 14 Argument and Authorities ....................................................................... 16

I. Webb’s Claim is a Prohibited False Light Invasion of Privacy Claim Disguised as Defamation by Implication .......................... 16 A. The False Light Tort is Prohibited in Virginia ......................... 16

B. Webb’s Claim is Not for Defamation but for False Light

Invasion of Privacy ............................................................... 18

II. The Circuit Court Did Not Err in Granting the Pilot’s Motion to Strike Because Actual Malice Was Not Established (Assignment of Error I) ................................................................................... 23 A. The Actual Malice Standard Was Properly Applied to Webb’s

Claim .................................................................................... 23 1. Webb Conceded That Actual Malice Controls .................. 23

2. The Circuit Court Correctly Characterized Webb As a

Public Official (Assignment of Error II) .............................. 24

3. Actual Malice Must Be Proven Where Substantial Injury to Reputation is Not Apparent .......................................... 26

B. Webb Did Not Prove Actual Malice ....................................... 29

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III. The Circuit Court’s Judgment Should be Affirmed on Alternative Grounds Because The Pilot Did Not Intend or Endorse the Defamatory Implication Advocated by Webb (Assignment of Error I) .............................................................. 33

A. Virginia Law Requires that the Defendant Intend or Endorse an

Implied Defamatory Meaning ................................................ 33

B. Although it Reached the Correct Outcome, the Court Below Did Not Correctly Apply the Rule that a Defamatory Implication Be Intended or Endorsed ........................................................... 36

C. The Court Should Reaffirm the Rule that a Defamation by

Implication Plaintiff Must Prove That the Publisher Intended or Endorsed the Allegedly Defamatory Implication .................... 37

Conclusion .............................................................................................. 40

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TABLE OF AUTHORITIES Cases Page Bose Corp. v. Consumers Union, 466 U.S. 485, 104 S.Ct. 1966, 80 L.Ed.

2d 523 (1984) ...................................................................................... 29 Carwile v. Richmond Newspapers, Inc., 196 Va. 1, 82 S.E.2d 588 (1954)

.................................................................................................. 22, 33, 34 Chapin v. Knight-Ridder, Inc., 993 F.2d 1087 (4th Cir. 1993) .................... 35 Claiborne v. Strange and Halifax Gazette Publishing Co., Case No.

C005000185 (Circuit Court, Halifax County 2006) ................................. 20 Compton v. Foster, 82 Va. Cir. 279; 2011 Va. Cir. LEXIS 173 (Circuit Court,

Russell County 2011) ............................................................................ 20 Frizzell v. Media General, Inc., 71 Va. Cir. 163, 2006 Va. Cir. LEXIS 76

(Circuit Court, City of Roanoke 2006) .................................................... 20 Garrison v. Louisiana, 379 U.S. 64, 74 (1964) .......................................... 35 Gazette, Inc. v. Harris, 229 Va. 1, 325 S.E.2d 713 (1985) ............ 13, 26, 28 Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789

(1974) .............................................................................................. 26, 27 Government Micro Resources, Inc. v. Jackson, 271 Va. 29, 624 S.E.2d 63

(2006) .................................................................................................... 31 Hanks v. WAVY Broadcasting, L.L.C., Civil Action No. 2:11cv439, 2012

U.S. Dist. LEXIS 15729, 40 Med. L. Rep. 1424 (E.D. Va. 2012) ...... 20, 21 Hatfill v. The New York Times Company, 416 F.3d 320 (4th Cir. 2005) .... 35 Jackson v. Hartig, 274 Va. 219, 645 S.E.2d 303 (2007) ............................ 27 Jordan v. Kollman, 269 Va. 569, 612 S.E.2d 203 (2005) .......................... 24 Lord Byron v. Johnston, 2 Mer. 29, 35 Eng. Rep. 851 (1816) ................... 16

iv

Lucente v. Media General Operations, Inc. et al., Case No. 820CL060000109-00 (Circuit Court, City of Waynesboro 2006) ............ 19

New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d

686 (1964) ....................................................................................... 27, 35 Perk v. Vector Resources, 253 Va. 310, 316, 485 S.E.2d 140, 144 (1997)

.............................................................................................................. 22 Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89

L.Ed.2d 783 (1986) ................................................................................ 35 Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 362 S.E.2d 32

(1987) ........................................................................................ 13, 24, 27 Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966) ....................................................................................................... 26 Schnupp v. Smith, 249 Va. 353, 457 S.E.2d 42 (1995) ............................. 35 St. Amant v. Thompson, 390 U.S. 727, 88 SCt. 1323, 20 L.Ed.2d 262

(1968) .................................................................................................... 27 Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967) ....................................................................................................... 17 WJLA-TV v. Levin, 264 Va. 140, 564 S.E.2d 383 (2002) .......................... 16

Other Authorities R. Sack, Sack on Defamation: Libel, Slander and Related Problems (4th

ed. 2013) ................................................................................... 24, 33, 36 B. Sanford, Libel and Privacy (2d ed. 2013) .................................. 18, 26, 28 R. Smolla, Law of Defamation (2d ed. 2002) ........................................ 16,18 Restatement (Second) of Torts § 652E (1997) .......................................... 16

v

Virginia Model Jury Instructions .......................................................... 27, 29 Webster’s Third New International Dictionary of the English Language

(Unabridged)(1971) ............................................................................... 34

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STATEMENT OF THE CASE

Phillip D. Webb (“Webb”), an Assistant Principal at Oscar Smith High

School, is the father of Kevin Webb, a track athlete who was charged with

felony malicious wounding and assault, and later convicted of

misdemeanor assault and trespass, after joining his older brother in the

beating of another student’s father. Great Bridge High School, which Kevin

Webb attended at the time of his crime, did not inhibit him from pursuing his

athletic endeavors or impose any other discipline.

Webb claimed that he suffered reputational injury when The

Virginian-Pilot (“Pilot”), covering the sentencing hearing for Kevin Webb

and his brother, accurately reported a statement by the school system’s

public information officer, Tom Cupitt:

State regulations allow schools to suspend or expel a student if they have been charged with a crime that would be a felony for an adult. Cupitt said a pending felony charge can net a Chesapeake student punishment ranging from suspension to expulsion. Cupitt was unaware of the “Bum Fight Klub” but said the school division takes bullying seriously. He added that Kevin Webb “did not get preferential treatment because of his dad’s position.” Phil Webb declined to comment about the case.

“Jail, community service issued in attack on Chesapeake family,” The

Virginian-Pilot, December 18, 2009 (“Article”), Joint Appendix (“J.A.”) at 95,

96 (italics added).

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Webb asserts that this statement disassociating him from the

disciplinary decision that Great Bridge High School made about his son,

read in the context of the entire Article, actually means the opposite:

. . . the article’s facially true quotation that “Kevin Webb ‘did not get preferential treatment because of his dad’s position,’” . . . falsely implied exactly the opposite, i.e., that Webb did improperly secure preferential treatment for Kevin.

Opening Brief of Appellant (“Webb Br.”) at 4.

The trial record reveals no evidence (but relentless argument by

Webb’s counsel) that the Pilot or its reporter, Louis Hansen (“Hansen”),

intended or endorsed the inference that Webb had attempted to secure

preferential treatment for his son. In fact, Hansen’s investigation found no

source stating that Webb used his position to influence his son’s discipline,

and the Article accurately quoted school spokesman Cupitt to say that no

such connection existed. Having transformed that literally true quotation

from an official source into a contrary implied meaning that is obviously

false, Webb argues that this reversal of meaning proves the essential

elements of falsity and fault:

At trial, Hansen admitted that when he wrote the article he did not think it was possible for Webb to have caused the school system to give preferential treatment to his son. J.A. 660/11-14. This testimony indicates the reporter had learned during his investigation that his implication was false yet nonetheless proceeded to publish it.

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Webb. Br. at 5 (italics in original)(underscoring added). See also Webb Br.

at 16, 19 (employing the rhetorical device of characterizing Webb’s

interpretation of the Article as “his [Hansen’s] defamatory statement”).

Webb literally claims that he has proven both falsity and actual malice, not

by offering evidence that the Pilot or its reporter intended or endorsed the

later-asserted meaning, but through his ipse dixit that simply assigns

authorship of the implication to Hansen.

Applying this theory, Webb obtained a $3 million jury verdict, which

the court below properly set aside. The Circuit Court’s ruling should be

affirmed.

The amici curiae1 have a compelling interest in the outcome of this

appeal. They are engaged daily in the investigation of matters of public

concern that include the performance of our public institutions -- including

1 The amici curiae are the Virginia Press Association (“VPA”); the Virginia Association of Broadcasters (“VAB”); the Associated Press (“AP”); World Media Enterprises, Inc. (publisher of Richmond Times-Dispatch, The Daily Progress (Charlottesville), the Bristol Herald-Courier, The News and Advance (Lynchburg), the Culpeper Star-Exponent, the Danville Register & Bee; The News-Virginian (Waynesboro), and The Roanoke Times); LIN Television Corporation d/b/a WAVY-TV and WVBT-TV; Shenandoah Publications Inc. (publisher of The Free Press (Woodstock); Snowy Mountain Publishing Inc. (publisher of The Recorder (Monterey); Media General, Inc., d/b/a WSLS-TV; and WP Company LLC d/b/a The Washington Post. The newspaper publishers and broadcasters collectively reach millions of Virginians daily. The VPA’s 225 members include daily and weekly newspapers based throughout Virginia. The VAB is an association of 197 broadcasters based in Virginia.

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law enforcement agencies, courts and public schools. It is a core function

of news media to look into, and report, the facts when an assertion is made

that these institutions are treating citizens unfairly. Here, two young men

were involved in a series of altercations. One, the star athlete son of a

public school official, was criminally charged yet appeared to suffer no

consequence within the school system. The other, a special education

student without any family connection to the schools, suffered a less

favorable outcome at the hands of that same school system. The Pilot did

precisely what one would expect of vigilant journalists. They asked obvious

questions, received answers, and reported the answers accurately.

The amici curiae respectfully urge this Court to recognize the

troublesome nature of this case: a prominent person successfully obtained

a large jury verdict, not because the Pilot article asserted a defamatory

implication, but because he effectively argued that it was improper merely

to refer to him in a factually accurate story about the discipline of his son.

The Court should take this opportunity to state clearly that media

defendants, when they accurately report true facts on matters of public

concern, are entitled to protection from claims of libel by implication unless

the plaintiff establishes that the asserted implied defamatory meanings are

intended or endorsed by the publisher.

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STATEMENT OF FACTS

The Pilot published the Article on December 18, 2009. See J.A. 95-

97. The Article appeared under the byline of reporter Louis Hansen on

page A1, accompanied by a sidebar under the words “the case,” and

jumped to page A8 in the midst of its fourth paragraph.

The Pilot referenced Webb in the page A1 sidebar: ‘“This case has

been . . . a nightmare,’ said the parent of a former Great Bridge High

School student, talking about a dispute involving her son and another

student, the son of an assistant principal at Oscar Smith High.” J.A. 95.

The body of the Article references Webb in four of its thirty

paragraphs (italics added to highlight references to Webb):

(1) The second paragraph reads: “Kevin Webb, a track star, regularly

shoved and taunted Bristol, a special education student. One

night, Bristol said, he and a group of friends drove to the Webbs’

home on Natchez Trace. Phil Webb, Kevin’s father and an

assistant principal at Oscar Smith High School, turned them

away.” Article, J.A. 95.

(2) The twelfth paragraph reads in part: “The Webb brothers were

pole vaulting stars at Great Bridge, where their father once

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coached. Phil Webb guided a young Lawrence Johnson, future

Olympic silver medalist in the pole vault, in high school.” Id., J.A.

96.

(3) The eighteenth paragraph, included in a description of the

confrontation at the Webb home, states in part: “About 9 p.m. Nov.

5, 2008, Patrick confronted Webb and his father.” Id.

(4) The twenty-fourth paragraph reads: “State regulations allow

schools to suspend or expel a student if they have been charged

with a crime that would be a felony for an adult. Cupitt [identified

in the Article as a school division spokesman] said a pending

felony charge can net a Chesapeake student punishment ranging

from suspension to expulsion. Cupitt was unaware of the ‘Bum

Fight Klub’ but said the school district takes bullying seriously. He

added that Kevin Webb ‘did not get preferential treatment because

of his dad’s position.’ Phil Webb declined to comment about the

case.” Id.

Webb concedes that each of the above facts is true, and was accurately

reported by the Pilot. When asked on cross-examination to locate the

content in the Article that supported his testimony that the Pilot had

accused him of “brokering a deal” for his son, Webb testified: “No.

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Because those are my words to your article.” Trial Transcript (“Tr.”) at 85:

9-13 (Webb), J.A. 638.

Hansen testified that he knew school spokesman Cupitt from prior

work, that they had spoken before, and that he asked Cupitt if Kevin Webb

obtained preferential treatment because of his father. Tr. at 102:8-23

(Hansen), J.A. 653. Cupitt specifically told Hansen that Kevin Webb did not

get preferential treatment because of his father’s position. Id. at ln. 18-22.

Hansen’s reason for asking the question was simple:

Q. And why did you ask Mr. Cupitt the question about whether preferential treatment had been provided?

A. Well, the son of a senior school’s administrator had been

charged with malicious wounding, a felony, and the school said it had the option to suspend or expel a student in such case and the school system did nothing.

So I asked whether or not there was any special treatment that

Kevin Webb received because of his father’s position.

Tr. at 104:4-13 (Hansen), J.A. 655. The Pilot simply published what Cupitt

told Hansen. Id. at ln. 15-16.

Webb elicited no evidence that Hansen investigated the facts in a

negligent manner, and admitted so:

Not once in the trial did Webb attempt to prove or base liability on negligent investigation. If anything, Hansen’s investigation was exceptionally thorough, as was evidenced by Pl. Tr. Ex. 4, Hansen’s 40 pages of interview notes.

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Plaintiff’s Brief in Opposition to Defendant’s “Bench Brief Regarding the

Law of Defamation by Implication and Actual Malice,” (“Webb Post-Trial

Br.”) at 20, J.A. 474, 493-94 (arguing that the verdict was based on

constitutional actual malice alone); see Plaintiff’s Ex. 4 (reporter notes),

J.A. 901-940.

No testimony in the record suggests that Hansen knew any fact in the

Article concerning Webb was false, before or after publication.2 Nor is

there evidence that facts were known to Hansen that conferred upon him

any awareness that any reported fact was probably false. Webb’s “proof”

of both falsity and fault (actual malice), was based on: (1) Hansen’s ready

acknowledgement that he never intended or endorsed the “after-

discovered” implication alleged by Webb; (2) Webb’s testimony that

Hansen, during his failed effort to interview Webb, warned that the story

would be “one-sided,” Tr. at 56:9-11 (Webb), J.A. 622; and (3) Hansen’s

allusion to a well-known line from the movie Apocalypse Now (“I love the

smell of napalm in the morning”) in an email to a colleague after Webb

threatened him with arrest. Plaintiff’s Ex. 3 (Hansen December 17, 2009,

email), J.A. 900.

2 It is undisputed that all material facts reported in the Article are true.

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Webb crafted his pleadings to suggest that the Article’s evenhanded

statement that “Phil Webb declined to comment about the case” was

evidence of the Pilot’s intention to attribute wrongdoing to Webb:

4. Moreover, the article was a deliberate and/or recklessly negligent distortion of the events described therein, because the article intentionally implied wrongdoing by the plaintiff and falsely implied that the plaintiff had been questioned about a “case” involving his ethics and had declined to comment to protect himself. There never was any wrongdoing and the plaintiff had never been questioned about the unethical conduct. The article left the false impression that the plaintiff had something to hide which reflected adversely on his fitness to perform the duties of his calling when such was false.

Second Amended Complaint ¶ 4, J.A. 89 (italics added). Webb’s testimony

at trial, however, showed that the reporter did approach Webb after his

sons’ sentencing hearing and sought an interview about the proceedings.

Tr. at 55:19-56:2 (Webb), J.A. 621-22. Webb brushed Hansen off,

threatening to have him arrested, then referred Hansen to his attorney

when the reporter persisted. Id. at 56:9-19, J.A. 622. Both Webb’s wife

and the Webbs’ attorney declined to give an interview. Tr. at 113:10-114:5

(Hansen), J.A. 664-65. Thus, Webb knew to a certainty when he filed his

lawsuit that: (1) his own refusal to be interviewed was reported accurately

in the Article, and (2) the references in his pleading to questions (or the

absence of questions) about a “case” involving his “ethics” were an

invention. Webb knew that Hansen had not questioned him about that

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subject or any other subject, not because of Hansen’s lack of diligence, but

because Webb had refused to talk with Hansen at all. The Pilot noted that

the evidence at trial did not support the artful description in the Second

Amended Complaint, but Webb did not concede the point. Instead, he

doubled down on his position, recasting the meaning of his pleading and

intensifying his ad hominem attack:

The plaintiff has never contended Hansen’s failure to interview the Webbs was a negligent omission. Plaintiff has always asserted that Hansen did try to interview Phil Webb after the sentencing, but only a (sic) part of an effort to catch him off guard and elicit either an explicitly incriminating quote, or an implicitly incriminating “no comment.” Plaintiff has always contended Hansen engaged in crafty ambush journalism and skillfully achieved his desired incendiary effect. Plaintiff’s case does not rest, as Media Companies suggests, on a combination of ill-will evidence and negligent investigation evidence.” Def. Brf., p. 13. Rather, it rests on clear and convincing evidence of knowledge of falsity and reckless disregard of the truth.

Webb Post-Trial Br. at 20-21, J.A. 493-94 (italics added).

Webb repeatedly attacked the editorial judgment of the Pilot, arguing

that it had no business making reference to him in the Article. The opening

statement and closing argument on behalf of Webb were bookends. In

opening, counsel stated that “the Pilot dragged Phil Webb’s name into the

case,” Tr. (May 21, 2012) at 29:20-21, and asserted Webb’s central point:

Our point is that this article gratuitously raised the subject, raised the question of whether Mr. Webb pulled strings, took advantage of connections that he had as an assistant principal in order to get

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preferential treatment for Kevin so that Kevin would be able to stay in school and play sports.

Id. at 36:9-14 (italics added). Webb reinforced this theme in closing

argument: “This case is here today because the Virginian-Pilot crossed

that line when it wrote this article and dragged Phil Webb’s name into an

article about a crime that he was not a participant in . . .” Tr. at 598:25-

599:3, J.A. 792-93 (italics added).

Webb elicited testimony from school officials who vouched for his

continued good reputation, but expressed unhappiness with the mere

mention of his name in the Article.3 Joseph Habit, a teacher, testified that

he was “dumbfounded” by the Article bringing up the subject of whether

Kevin Webb got preferential treatment because of his father’s position. Tr.

at 252:14-21 (Habit), J.A. 728. Lee Fowler, a middle school principal,

testified that bringing up the subject made him “angry,” and that “questions

that were asked” implied wrongdoing. Tr. at 218:15-25 (Fowler), J.A. 706.

Joanna Bounviri testified that she did not draw from the article the

defamatory inference that Webb improperly influenced his son’s discipline,

Tr. at 231:14-20 (Bounviri), J.A. 717, and instead criticized the Article

3 Webb gave a lengthy answer to a question on this point (which the court ordered the jury to disregard), complaining that he had no reason to be mentioned at all. Tr. at 64:2-10, J.A. 624.

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because she “did not see the relevance for mentioning him or his position.”

Tr. at 231:12-13, J.A. 717.

The subject matter of the Article was student misconduct and its

consequences. It was undisputed that both the Commonwealth and the

local public school system had written policies permitting a range of

disciplinary consequences for students charged with or convicted of off-

campus crimes. It was undisputed that Great Bridge High School officials

administered no discipline to Kevin Webb as a consequence of his trip

through the criminal justice system. It was undisputed that the same

officials offered Patrick Bristol, whose father was beaten by Kevin Webb,

the opportunity to finish his high school career at another school.

When examined at trial, school officials expressed disbelief that

parents might have a legitimate question if they observed two different

students (regardless of their respective parents’ status) receiving disparate

disciplinary treatment:

Q. If a student – for example, if a student has been disciplined for using his cell phone in class, is it not a legitimate question for that student or that student’s parent to ask, Why am I getting in trouble when your son didn’t get into trouble for going over to a (sic) another student’s house and assaulting that student’s parent? A. No. It wouldn’t be fair.

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Tr. at 203:14-21 (Dugan), J.A. 698. See also Tr. at 227:11-228:5 (Fowler),

J.A. 715-16 (stating in response to a similar question that he did not “see

the logic” in the question and having “a problem with the whole concept.”).

As the Pilot ultimately learned through discovery in this case, the

school division had a de facto policy of putting students charged with

felonies on a “contract.” It allowed the student to continue in school without

further consequence unless the guidelines were violated. Tr. at 358:9-

359:25 (Vaughan), J.A. 782-83. School officials had never disclosed the

policy to Hansen.

STANDARDS OF REVIEW

This Court conducts an independent evaluation of the entire record to

determine whether New York Times malice has been established by clear

and convincing proof. Gazette, Inc. v. Harris, 229 Va. 1, 19, 325 S.E.2d

713, 727 (1985).

This court reviews the determination of a plaintiff’s status as a public

official de novo, as it is a federal constitutional question. Richmond

Newspapers, Inc. v. Lipscomb, 234 Va. 277, 284, 362 S.E.2d 32, 35

(1987).

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SUMMARY OF ARGUMENT

Webb’s claim is denominated as an action for defamation by

implication. In fact, it is typical of numerous claims filed recently in the

state and federal courts of Virginia that are prosecuted under the rubric of

“defamation by implication” but are in fact claims for “false light invasion of

privacy.” This Court has wisely rejected the amorphous “false light” tort.

Although libel by implication is well recognized in Virginia, there is no

authority for a “broad” application of the doctrine. This Court has never

distorted the boundaries of defamation law to the point that a party may

stretch rules of defamatory meaning, falsity and fault to evade the

prohibition on false light claims.

The First Amendment prohibits the imposition of liability without fault.

The trial record on the issue of fault is this: (1) the Pilot had no intention to

convey the implied defamatory meaning alleged by Webb after publication;

(2) reporter Hansen’s exceptionally thorough investigation was, by Webb’s

admission, not negligent; and (3) Webb’s proof of actual malice consisted

of (a) the reporter’s testimony that he did not believe Webb, an Assistant

Principal at Oscar Smith High School, could influence his son’s discipline at

Great Bridge High School, and (b) bits and pieces of testimony suggesting

that the reporter did not like Webb or Webb’s refusal to give an interview.

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This evidence was manifestly insufficient to prove constitutional actual

malice.

Where defamation by implication is alleged, the common law of

Virginia and the First Amendment to the United States Constitution sharpen

the fault inquiry by requiring the plaintiff to establish that the alleged

defamatory meaning is intended or endorsed by the publisher. To do less

places at serious risk the ability of the media to report true facts with

accuracy, particularly on matters of public concern. Regardless of Webb’s

status as a public official, a public figure, or a private figure, the Court

should recognize that the Pilot, in reporting on the administration of

discipline in the public schools, performed precisely the function we

demand of a free press – asking obvious questions on a matter of public

concern. This case presents an opportunity to reinforce the rule that a

plaintiff, irrespective of his status as a public official, public figure, or private

figure, when alleging defamation by implication, must establish by clear

evidence that the publisher intended or endorsed the meaning that forms

the basis for his defamation claim.

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ARGUMENT AND AUTHORITIES

I. Webb’s Claim Is a Prohibited False Light Invasion of Privacy Claim Disguised as Defamation by Implication.

A. The False Light Tort Is Prohibited in Virginia.

False light invasion of privacy, according to one leading

commentator, traces its roots to Lord Byron, who successfully enjoined the

publication of a mediocre poem falsely attributed to him, as it suggested

that he was capable of poor work. Lord Byron v. Johnston, 2 Mer. 29, 35

Eng. Rep. 851 (1816), discussed in 2 R. Smolla, Law of Defamation §10:8

(2d ed. 2002). The Restatement of (Second) Torts describes the tort:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy if

(a) the false light in which the other was placed would be highly

offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

Restatement (Second) of Torts § 652E (1977).

The inherent ambiguity of this tort is manifest, and Virginia does not

permit the assertion of “false light” claims. WJLA-TV v. Levin, 264 Va. 140,

160, 564 S.E.2d 383, 394 n.5 (2002). The Supreme Court of the United

States made its distaste for unbounded, non-defamation privacy claims

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clear in Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456

(1967). Plaintiff relied on a New York privacy statute to seek damages

from the publisher of Life magazine, which reported on a new play that

fictionalized a real criminal incident involving his family. The Supreme

Court noted that the state law privacy claim, even if pursued by a private

figure, would need to be bounded by strong constitutional limits:

The guarantees for speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government. One need only pick up any newspaper or magazine to comprehend the vast range of published matter which exposes persons to public view, both private citizens and public officials. Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press. “Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.” . . . We create a grave risk of serious impairment of the indispensable service of a free press in a free society if we saddle the press with the impossible burden of verifying to a certainty the facts associated in news articles with a person's name, picture or portrait, particularly as related to nondefamatory matter. Even negligence would be a most elusive standard, especially when the content of the speech itself affords no warning of prospective harm to another through falsity. A negligence test would place on the press the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait.

Time, 385 U.S. at 388, 87 S.Ct. at 542-43, 17 L.Ed.2d at 467 (citations

omitted)(italics added)(imposing actual malice fault standard).

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B. Webb’s Claim is Not for Defamation but for False Light Invasion of Privacy.

Although denominated a defamation by implication claim, the

gravamen of Webb’s claim cannot be masked. The clearest indicator of

this was the touting by his counsel of the fact, not that Webb suffered

reputational injury, but that he was devastated personally by his inclusion in

an Article that reported literally true but unfortunate facts about his family.

As noted in the Statement of Facts above at page 11, Webb elicited

“damages” testimony from witnesses that did not center on the falsity of

any fact implied in the Article, but on the outrage they shared over the fact

that it was “grossly unfair” to mention Webb by name in a negative story

about his sons. See, e.g., Tr. at 218:11-14 (Fowler), J.A. 706.4 As the

commentators note, a significant point of differentiation between false light

claims and defamation claims is that defamation law focuses on injury to

reputation, whereas the “privacy” tort focuses on a person’s right to be let

alone. See generally 2 R. Smolla, Law of Defamation §10:10 (2d ed.

2002); B. Sanford, Libel and Privacy § 11.4.4 (2d ed. 2013). Webb’s claim

presents a “false light” fact pattern, emphasizing his unnecessary

4 Although the passage is not in the Joint Appendix, the jury heard Webb’s counsel ask this question to Fowler, to which an objection was sustained: “Did the article portray Mr. Webb in a positive or a negative light?” Tr. (May 22, 2012) at 217:21-22.

19

association with a true article that may allow readers to view him in a

negative light.

Webb’s counsel argued to the jury that Webb’s mere inclusion in the

Article was the “point” of his case. This was not aimed at defamatory

meaning and falsity; it was a direct attack on editorial decisionmaking. It is

reasonable to infer that this argument, and the cumulation of testimony

reinforcing the argument, influenced the jury’s deliberations and quite likely

shifted its focus away from the core tasks of determining whether (1) the

Article truly implied a defamatory and false meaning, and (2) the Pilot was

at fault for proximately causing injury to Webb’s reputation.

This case is not unique. A wave of false light cases traveling under

the guise of defamation by implication has recently washed through

Virginia’s state and federal courts. In some cases, the courts have

examined the criticized publications and correctly recognized that the

“implications” asserted in the complaint are not present, dismissing the

cases on demurrer or under Rule 12(b)(6) of the Federal Rules of Civil

Procedure. See Lucente v. Media General Operations, Inc. et al., Case

No. 820CL060000109-00 (Circuit Court, City of Waynesboro

2006)(demurrer sustained to libel by implication claim)(unreported letter

opinion dated September 26, 2006 attached as Appendix 1) petititon for

20

appeal refused, Record No. 062711 (April 11, 2007); Claiborne v. Strange

and Halifax Gazette Publishing Co., Case No. C005000185 (Circuit Court,

Halifax County 2006)(demurrer sustained from the bench April 26, 2006;

transcript excerpt attached as Appendix 2) petition for appeal refused,

Record No. 061624 (October 26, 2006); Compton v. Foster, 82 Va. Cir.

279; 2011 Va. Cir. LEXIS 173 (Circuit Court, Russell County 2011)

(sustaining demurrer); Hanks v. WAVY Broadcasting, L.L.C., Civil Action

No. 2:11cv439, 2012 U.S. Dist. LEXIS 15729, 40 Med. L. Rep. 1424 (E.D.

Va. Feb. 7, 2012)(applying Virginia law; granting motion to dismiss under

Rule 12(b)(6)).

Other courts have permitted a plaintiff to proceed with a claim based

on strained inferences drawn from admittedly true and neutrally reported

facts. See, e.g., Frizzell v. Media General, Inc., 71 Va. Cir. 163, 2006 Va.

Cir. LEXIS 76 (Circuit Court, City of Roanoke 2006)(overruling demurrer;

finding that businessman could suffer reputational injury from true report

that he returned videotapes to a customer only after being contacted by

television station’s consumer reporter) (case settled prior to trial).

In Compton, Claiborne and Lucente, locally prominent individuals,

like Webb, focused not on defamatory content, but on the publisher’s

audacity in mentioning them in a story that raised pointed questions about

21

matters of public concern. All were unhappy about this embarrassing

exposure, and brought “false light” claims disguised as defamation actions,

alleging “implied meanings” that the published stories could not fairly bear.

Those cases, like Webb’s, were marked by a misplaced emphasis on

the plaintiff. Webb was included in the Article to provide relevant content,

but fundamentally the Article was not about him. The Article concerned

public decision-makers at Great Bridge High School whose disciplinary

decisions about Kevin Webb were questioned. The Article asked: why did

they decide not to discipline Kevin Webb, and what drove their decision?

Webb’s status was a data point relevant to answering that question, and

the Article presented the answer the Pilot received from the school

system’s spokesman without embellishment. This emphasis on the plaintiff

at the expense of context was pointedly rejected in a recent federal case,

applying both the “of or concerning” rule and the analysis of libel by

implication to conclude that no reasonable person would infer the alleged

defamatory message from a television broadcast about tax preparers.

Hanks, 2012 U.S. Dist. LEXIS 15729 at **23-25 (granting motion to dismiss

under Rule 12(b)(6) and dismissing action).

As this case demonstrates, quasi-false light claims present a

significant risk that outcomes will not be driven by facts material to the

22

essential elements of a defamation claim. The record shows that Webb

emphasized facts that impugned the defendants’ editorial decision to

include him in the story, and facts that emphasized his embarrassment at

being named in the story. The literal truth of the story was pushed to the

margin. Accurately reported, non-defamatory facts were criticized for

causing readers to consider Webb in a negative light. This Court has

closed the front door on such false light proof; it must ensure that the law of

defamation by implication is not employed to throw open the back door to

the same proof.

The obvious place for the courts to evaluate and weed out spurious

cases of this genre is during their initial consideration of the criticized

content, often on demurrer. Trial courts act as gatekeepers, determining as

a matter of law whether (1) the criticized content is truly capable of the

defamatory meaning that the plaintiff alleges it implies, see, e.g., Perk v.

Vector Resources, 253 Va. 310, 316, 485 S.E.2d 140, 144 (1997); and (2)

there are sufficient facial indicia of the publisher’s intention to deliver the

asserted defamatory message that the law should permit a jury to assign

fault. See Carwile v. Richmond Newspapers, Inc., 196 Va. 1, 82 S.E.2d

588 (1954). The court below took an extraordinarily broad view of what is

permissible under inquiry (1), but because the Court declined to accept the

23

assignment of cross-error on that issue; it is not discussed below. The

court below did not address inquiry (2) in its demurrer ruling, but ultimately,

applying the actual malice rule, it effectively determined that the implied

message claimed by Webb was not intended by the Pilot.

Part II below addresses the trial court’s correct determination that

actual malice was not proven. Part III explains that the trial court could

have reached the same result more directly by holding that the Article bore

no facial indicia that the claimed defamatory implication was intended or

endorsed by the Pilot.

II. The Circuit Court Did Not Err in Granting the Pilot’s Motion to Strike Because Webb Did Not Prove Actual Malice (Assignment of Error I).

A. The Actual Malice Standard Was Properly

Applied to Webb’s Claim.

1. Webb Conceded That Actual Malice Controls.

Webb conceded in opposition to the motion to strike that his theory of

fault at trial was limited to the actual malice standard: “Plaintiff’s case . . .

rests on clear and convincing evidence of knowledge of falsity and reckless

disregard of the truth.” Webb Post-Trial Br. at 21, J.A. 474, 494. Webb

now contradicts this concession on appeal, and without identifying any

evidence of negligence in the record, argues that the verdict may be

24

reinstated on a negligence theory because negligence “was proven as a

matter of law.” Webb Br. at 3. He does not explain this reversal.

Webb notes further, without analysis, that “because negligence has

been subsumed within actual malice,” he has necessarily established

negligence. Id. (citing Richmond Newspapers, Inc. v. Lipscomb, 234 Va.

277, 287-88, 362 S.E.2d 32, 37-38 (1987)). This is not true if his proof of

actual malice failed. As the dissent in Lipscomb pointed out, the failure to

prove actual malice did not logically constitute proof of negligence, an issue

that had never been submitted to the jury. 234 Va. at 301-02 (Stephenson,

J., concurring in part and dissenting in part).5

2. The Circuit Court Correctly Characterized Webb As a Public Official (Assignment of Error II).

This Court has not addressed the status of an Assistant Principal as a

“public official” for defamation purposes. The Pilot addresses this issue

ably, and the amici curiae support and incorporate its argument. Unlike the

5 Neither the majority nor the dissent in Lipscomb grappled with the fact that the difference between negligence and actual malice in a defamation case is not one of degree, but of kind. Actual malice concerns the subjective stance of the publisher toward the truth of the published content. “Recklessness” as used in the constitutional sense is not the same as “recklessness” in the general tort law sense. Jordan v. Kollman, 269 Va. 569, 580, 612 S.E.2d 203, 209 (2005)(explaining the “reckless disregard” prong of the actual malice test). Actual malice is not a form of gross negligence. See generally, 1 R. Sack, Sack on Defamation: Libel, Slander and Related Problems § 5.5.1[A] (4th ed. 2013).

25

plaintiff school teacher in Lipscomb, Webb had significant decisionmaking

and supervisory authority. His own witness described the scope of Webb’s

responsibility as “huge.” Tr. at 121:4-8 (Joseph), J.A. 668. Joseph’s

testimony, as well as that of Webb, identified significant governmental

functions under Webb’s purview, and revealed the extent of his ability to

influence hundreds of families, many with children in special education

programs. See Tr. at 121:9-122:5 (Joseph), J.A. 669-70; Tr. at 42:24-45:13

(Webb), J.A. 615-18. He not only answered “upstream” to others; he had

fifty to sixty teachers and teacher assistants under his supervision. Tr. at

121:20-25 (Joseph), J.A. 669.

It should not be lost on the Court that the implied defamatory

meaning Webb extracts from the Article is inextricably tied to, and

necessarily emphasizes, his status as a senior public school administrator.

His damages are alleged to flow in part from the degree to which the Article

impairs his ability to impose discipline as an Assistant Principal. Tr. at

69:11-25 (Webb), J.A. 629. Ironically, when that same emphasis on the

significance of his job leads to application of an unfavorable legal rule --

public official status -- he jettisons it and argues that his relationship to the

conduct of government is “far too remote.” Webb Br. at 27.

26

Webb extensively discusses Rosenblatt v. Baer without addressing

its explicit premise. The case rejects the use of state law characterizations

of a plaintiff’s authority, relied on heavily by Webb, and demands

consideration of the plaintiff’s status in light of federal constitutional

objectives. Rosenblatt v. Baer, 383 U.S. 75, 84, 86 S.Ct. 669, 675, 15

L.Ed.2d 597, 604-05 (1966). See generally B. Sanford, Libel and Privacy §

7.2.2.1 (2d ed. 2013). Being “five levels” removed from the School Board

in the bureaucracy is immaterial to the question of whether Webb is

“among the hierarchy of government employees who have, or appear to the

public to have, substantial responsibility for or control over the conduct of

governmental affairs.” Rosenblatt, 383 U.S. at 85, S.Ct. at 676, 15 L.Ed.2d

at 605. The Circuit Court correctly rejected Webb’s arguments, and should

be affirmed on this point.

3. Actual Malice Must Be Proven Where Substantial Injury to Reputation is Not Apparent.

The First Amendment prohibits the imposition of liability in a

defamation case without proof of fault. Gertz v. Welch, 418 U.S. 323, 347,

94 S.Ct. 2997, 3010, 41 L.Ed.2d 789, 809 (1974). Virginia follows this

constitutional mandate. In Gazette, 229 Va. at 15, 325 S.E.2d at 724-25,

cert. denied 472 U.S. 1032 (1985) and cert. denied 473 U.S. 905 (1985),

this Court rejected strict liability in defamation actions, requiring proof of

27

negligence in cases brought by private figures. Negligence in a defamation

case follows general tort concepts of negligence. It is a failure to exercise

reasonable care under all of the circumstances. See 1 Virginia Model Jury

Instructions: Civil, No. 4.000 (2013). Virginia does not require or permit

proof of a journalistic standard of care. Lipscomb, 234 Va. at 296-97, 362

S.E.2d at 42-43.

Public officials and public figures must establish fault under a different

standard, actual malice (New York Times malice), in order to recover. New

York Times Co. v. Sullivan, 376 U.S. 254, 283, 84 S.Ct. 710, 727, 11

L.Ed.2d 686, 708 (1964)(rule applied to public officials); Gertz, 418 U.S. at

352, 94 S.Ct. at 3013, 41 L.Ed.2d at 812 -13 (defining public figures).

“Actual malice” is a defamation law term of art. It demands proof of the

subjective stance of the defendant toward the truth of the published

content: (a) did it know at the time of publication that the facts reported

were false, or (b) did it possess a high degree of awareness that the facts

were probably false and proceed to publish anyway? St. Amant v.

Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262, 267

(1968). It has nothing to do with the reporter’s personal animus toward his

subject. Jackson v. Hartig, 274 Va. 219, 229-230, 645 S.E.2d 303, 309

(2007).

28

Critically, private figure plaintiffs in Virginia must prove actual malice

in certain circumstances:

The application of this negligence standard is expressly limited, however, to circumstances where the defamatory statement makes substantial danger to reputation apparent. The trial judge shall make such determination as a matter of law. If, on the other hand, no substantial danger to reputation is apparent from the statement in issue, New York Times malice must be established to recover compensatory damages.

Gazette, 229 Va. at 15, 325 S.E.2d at 725. See generally, B. Sanford,

Libel and Privacy § 8.4.1 n.169 (2d. ed. 2013). Thus, even a private figure

is subject to the requirement that he prove actual malice where the content

in question does not put the publisher on notice of its potential to cause

reputational harm. In circumstances where libel by implication is alleged,

this limitation can be critical. See, e.g., Gazette, 229 Va. at 29, 325 S.E.2d

at 733 (Charlottesville Newspapers, Inc. v. Matthews appeal; reasonably

prudent editor should have appreciated publication was sufficiently

defamatory on its face).

Whether Webb is a private figure or a public official, it is manifest that

the actual malice standard must apply. The plain text of the Article

explicitly denies any connection between Webb and the disciplinary

decisionmaking at his son’s high school. No evidence was offered, and the

content of the Article did not indicate, that the reporter or his publisher

29

should have believed substantial injury to Webb’s reputation (as opposed

to resentment and hurt feelings) would result from publication. If the Pilot

was to be exposed to a compensatory damage award under such

circumstances, Virginia law compelled the imposition of an actual malice

standard.

B. Webb Did Not Prove Actual Malice.

Actual malice must be proved with “convincing clarity.” Bose Corp. v.

Consumers Union, 466 U.S. 485, 511, 104 S.Ct. 1949, 1966, 80 L.Ed. 2d

502, 523 (1984). This standard is articulated in Virginia jury instructions as

“clear and convincing evidence.” See 1 Virginia Model Jury Instructions:

Civil, No. 3.110 (2013). Here, Webb’s proof consisted of a naked attorney

argument, bolstered by evidence of two heavily-characterized incidents that

were legally immaterial to the actual malice inquiry.

Webb first argues that he proved knowledge of falsity. Webb Br. at

12-13. His “proof” is simply a semantic trap. No testimony was elicited

that the reporter, Hansen, believed the defamatory meaning assigned to

the Article by Webb: that Webb used his official position to influence the

disciplinary process at his son’s school. The evidence shows that, in

response to his initial interviews of the Bristols, Hansen pursued a question

raised by the Bristols, a question painfully obvious to any observer in light

30

of the known facts: how did Kevin Webb avoid discipline at the hand of the

school system, and was the outcome connected in any way to his father’s

position? The one source who addressed the question was Cupitt, and

Hansen reported Cupitt’s denial of any such connection in the Article.

Webb twists this evidence into proof that the Article was false, and

that Hansen knew it was false. Webb argues:

Under questioning by the newspaper’s own lawyer, Hansen testified unambiguously and unequivocally that he did not think it was “possible” for an assistant principal at Oscar Smith High School, such as Webb, to influence discipline of a student at Great Bridge High School, where his son Kevin attended school.

Q. And at the time you wrote the article, did you think it was

possible for an Oscar Smith assistant principal to influence discipline at Great Bridge?

A. No.

J.A. 660/11-14. By that testimony, Hansen conceded that he knew the defamatory implication from which Webb’s cause of action arose was false.

Webb Br. at 13 (italics added).

If this mode of proof is acceptable, proof of actual malice in

defamation by implication cases is shooting fish in a barrel. It costs nothing

to accuse a writer of meaning the precise opposite of what she has

reported. When the writer properly denies that she intends or endorses the

“implied” meaning (that is, the meaning invented after the fact and

31

attributed to her by her adversary) and explains why, she is charged with

knowledge that her initial assertion of a true fact delivered a false factual

implication.

The Government Micro Resources case cited by Webb illustrates the

point. In that case Pujals made the allegedly defamatory statement that

Jackson was fired because Jackson lost $3 million. Pujals admitted at trial

that, at the time he made that statement he knew that Jackson had not lost

$3 million. Simply, Pujals admitted that he knew his statement of fact about

Jackson was false when made. Government Micro Resources, Inc. v.

Jackson, 271 Va. 29, 42-43, 624 S.E.2d 63, 70 (2006).

If the fact pattern of that case had been the same as the case at bar,

Pujals would have made a true statement that Jackson did not lose $3

million. Jackson thereafter would have accused Pujals, without any proof,

of really meaning that Jackson did lose $3 million. Pujals no doubt would

have testified that his initial assertion was true becuase Jackson really did

not lose $3 million. Jackson would then have offered Pujols’ testimony to

prove not that Pujols knew his original statement was false when made, but

that Pujols knows the meaning that Jackson assigned to Pujal’s statement

after the fact was false. The two are not the same: proving that Pujols

agrees that a later-invented and contrary meaning is false has no tendency

32

to prove the legally relevant fact -- that Pujols believed his original

statement was false when it was uttered.

With this in mind, it is useful to revisit Webb’s brief. Webb does not

make the unvarnished statement that he proved Hansen’s knowledge,

before publication, of the falsity of any fact reported in the Article. He never

proved that. Instead, he conflates Hansen’s present explanation that he

did not intend or endorse the meaning later ascribed by Webb with

Hansen’s knowledge of falsity in the Article at the time of publication.

Webb artfully asserts not that Hansen knew the Article contained a

falsehood, but that he proved that Hansen “knew the defamatory

implication from which Webb’s cause of action arose was false.” Webb Br.

at 13 (italics added).

Webb’s evidence that Hansen possessed a “high degree of

awareness of probable falsity” was immaterial to the defendants’ subjective

knowledge of the truth or falsity of the Article. The trial court correctly

rejected the idea that Webb’s proof of ill will in the form of the “napalm”

email message had any tendency to show that Hansen harbored subjective

doubts about the truth of the Article. August 6, 2012, Letter Opinion at 4,

J.A. 542 (analogizing the comment to a similar comment that was rejected

as proof of actual malice in Jackson v. Hartig). Although the trial court’s

33

letter opinion did not address the testimony that Hansen threatened to write

a “one-sided” story, the law is overwhelmingly clear that the relevant inquiry

is not whether a story is one-sided, even intentionally so, but whether the

publisher believed it to be false. See generally, R. Sack, Sack on

Defamation § 5.5.2 at 5-96,97 (4th ed. 2013)(discussing the irrelevance of

one-sidedness and similar features in a story to prove actual malice).

The actual malice standard was proper in this case. Webb did not

prove knowledge of falsity or reckless disregard. No jury, on this record,

could have found that fault was proven by clear and convincing evidence,

and the court below correctly granted the motion to strike.

III. The Circuit Court’s Judgment Should be Affirmed on Alternative Grounds Because The Pilot Did Not Intend or Endorse the Defamatory Implication Advocated by Webb (Assignment of Error I).

A. Virginia Law Requires that the Defendant Intend or Endorse

an Implied Defamatory Meaning.

In Carwile v. Richmond Newspapers, Inc., 196 Va. 1, 82 S.E.2d 588

(1954), a media defendant reported on a prominent attorney-politician. He

sued for defamation after the newspaper wrote an article about a grand

jury’s rejection of allegations he had made about the city police department.

The trial court granted summary judgment for the newspaper and this Court

reversed and remanded the case. Carwile stated:

34

. . . it is a general rule that allegedly defamatory words are to be taken in their plain and natural meaning and to be understood by courts and juries as other people would understand them, and according to the sense in which they appear to have been used.

196 Va. 1, 7, 82 S.E.2d 588, 591-92. The Court, in applying this rule, made

clear that it had not conducted a search for every implied meaning that a

reader might have extracted from the article. It said:

. . . it is a reasonable implication of this language, read in connection with the whole article, that the plaintiff is guilty of unethical and unprofessional conduct for his charges made against the Police Department; for which conduct the defendant suggests in a veiled but pointed way that the plaintiff could and should be subjected to disbarment proceedings . . .

Id. at 9, 82 S.E.2d at 592 (italics added). Thus, the defamatory implication

that plaintiff should be disbarred was found by the Court not to arise

naturally from facts that were reported in a neutral fashion, but from a

message that the newspaper “suggested” in a “veiled but pointed way.”

“Suggested” is the past tense of “suggest,” a transitive verb and an

action word. Dictionary definitions presume an actor who puts an “idea,

proposition or impulse” into another’s mind or insinuates a thought. See,

e.g., Webster’s Third New International Dictionary of the English Language

(Unabridged)(1971).

Carwile teaches that the criticized content must bear sufficient facial

indicia of the defendant’s intentionality that it is proper to allow the finder of

35

fact to charge the defendant with responsibility for the defamatory

message. Compare Schnupp v. Smith, 249 Va. 353, 359, 457 S.E.2d 42,

45 (1995)(defamatory meaning implied in a slander case where speaker

describes conduct of plaintiff as consistent with a drug sale from a van in a

“high profile drug area”). In non-legal terms, it must appear fair and proper

to assign “ownership” of the alleged defamatory message to the publisher.

Applying Virginia law in circumstances where defamatory implications

allegedly arose from facts that were literally true, the Fourth Circuit held

that the First Amendment’s solicitude for truthful speech demands a strong

showing by the plaintiff:

Moreover, because the constitution provides a sanctuary for truth, a libel-by-implication plaintiff must make an especially rigorous showing where the expressed facts are literally true. The language must not only be reasonably read to impart the false innuendo, but it must also affirmatively suggest that the author intends or endorses the inference.

Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092-93 (4th Cir. 1993)(citing

Garrison v. Louisiana, 379 U.S. 64, 74 (1964)(“Truth may not be the

subject of either civil or criminal sanctions where discussion of public affairs

is concerned.”)) and Philadelphia Newspapers, Inc. v. Hepps, 475 U.S.

767, 776, 106 S.Ct. 1558, 1564, 89 L.Ed.2d 783, 792 (1986). That court

has since indicated the continuing viability the Chapin rule. See Hatfill v.

36

The New York Times Company, 416 F.3d 320, 334 n.7 (4th Cir. 2005)

(distinguishing Chapin while acknowledging the rule).

This approach is entirely consistent with Carwile. Although decided

ten years before New York Times v Sullivan, Carwile accurately anticipated

the constitutional overlay that would emerge in the law of defamation,

requiring that a libel by implication case cannot proceed unless the trial

court discerns from the article the publisher’s intention to deliver an implied

defamatory message. This is a salutory rule that protects the publication of

literally truthful facts and discourages the post-publication assignment of

implied meanings to effect liability without fault. See generally 1 R. Sack,

Sack on Defamation: Libel, Slander and Related Problems § 2:4.5 (4th ed.

2013).

B. Although it Reached the Correct Outcome, the Court Below Did Not Correctly Apply the Rule that a Defamatory Implication Be Intended or Endorsed.

Notably, the court below accepted this rule and applied it in giving

jury instructions. See Jury Instructions 10, J.A. 456; 17, J.A. 464; and 26,

J.A. 473 (all requiring proof that the defendants intended the alleged

defamatory implication). In ruling on the motion to strike, however, the trial

court backtracked on the issue, remarking that “It has not been determined

by our supreme court that a defendant must intend the implication. For

37

purposes of this analysis, I will side with Plaintiff and hold Plaintiff may

benefit from the circumstantial inference that everyone intends the results

of their voluntary acts.” August 6, 2012, Letter Opinion at 2, J.A. 540.

It is not clear what authority supports the trial court’s somewhat

cryptic second sentence in a defamation context. More to the point, the

statement in the first sentence that this Court has “not determined” the

issue suggests that Carwile may not be as clear to Virginia’s trial judges as

the amici curiae assume.

C. The Court Should Reaffirm the Rule that a Defamation by Implication Plaintiff Must Prove That the Publisher Intended or Endorsed the Allegedly Defamatory Implication.

Defamation by implication claims, as this case shows, present

challenges for trial judges. They must not conflate the distinct essential

elements of defamatory meaning (a meaning injurious to reputation) and

falsity. They must evenhandedly evaluate published content ranging from

newspaper articles to websites to television broadcasts, in order to

determine what meanings are either directly stated or may be inferred by a

reasonable reader or viewer. They must determine the plaintiff’s status to

apply fault rules.

This case, because it presents an allegation that admittedly true facts

generate a contrary defamatory implication, provides an opportunity to

38

reinforce two critical points that trial courts must determine as threshold

matters of law.

First, in every defamation by implication case, the initial task of the

trial judge is to read the criticized text in its entirely, ignoring the parties’

characterizations of the text, and to ask the question: “What does this

really say about the plaintiff?”6 Truth or falsity is immaterial at this stage --

the only question is “What, fairly understood by the reader or viewer, is the

meaning of this?” This is not a speculative, imaginative enterprise; it is not

a hunt to find all negative meanings that a reader might infer. Neither is it

an effort to confirm implied meanings that can be invented after publication

by creative lawyers. It is not a search for passages that simply cast plaintiff

in a negative light. The search, informed by Carwile and its progeny, is for

messages, express or implied, delivered with certainty, that a reasonable

and unbiased reader would infer from reading the entire article in context,

and that meet the strict legal definition of “defamatory.”

Second, if a defamatory meaning is truly implied by the text, the

related gatekeeping task is to determine whether that meaning is intended

or endorsed by the publisher. Do passages in the text or the broadcast,

6 Although this case arises in the newspaper context, the principle applies to all media. The courts must look at text, audio, and video together in context to determine their effect upon the reasonable reader or viewer.

39

understood in the context of the entire story, indicate that the publisher is

“suggesting” the defamatory message in a “veiled but pointed” way? If all

of the facts are literally true, does the content as a whole plainly suggest

that the publisher intends or endorses the implied defamatory meaning?

This threshold legal analysis is the true cutting edge in many

defamation by implication cases. Trial judges must respect the right of

every person to state a colorable claim for relief, and to pursue a well-

founded claim to verdict. However, the constitutional protection of speech

is a precious priority. The amici curiae believe that every publisher,

regardless of media platform, is entitled to have its publication of true facts

taken at face value, and that a later assertion that a publisher has hidden a

defamatory message among those facts should be met with a proper

skepticism. At minimum, the Court should hold that a media defendant

reporting on a matter of public concern, where its published facts are

admitted to be true, may not be held liable where a defamatory implication

is alleged unless the publication indicates that the publisher intended or

endorsed the implication. The court below could properly have dismissed

the Second Amended Complaint because the attached Article bore no

indicia that the defendants intended or endorsed the meaning advocated by

Webb.

40

CONCLUSION

The judgment of the court below should be affirmed. It correctly

applied the actual malice standard and properly found that Webb’s proof of

fault failed. On these facts, the actual malice standard was applicable even

to a private figure. Finally, given the procedural posture of this case, the

Court should reinforce the teaching of Carwile that a claim of defamation by

implication may only succeed where the alleged defamatory message is

intended or endorsed by the publisher.

Virginia Press Association Virginia Association of Broadcasters The Associated Press

World Media Enterprises, Inc. LIN Television Corporation Media General, Inc. Shenandoah Publications Inc. Snowy Mountain Publishing Inc.

WP Company LLC, d/b/a The Washington Post

By____________________________

Craig Thomas Merritt (VSB No. 20281) cmerritt@cblaw.com Christian & Barton, L.L.P. 909 East Main Street, Suite 1200 Richmond, Virginia 23219-3095 Telephone: (804) 697-4100 Facsimile: (804) 697-4112

41

CERTIFICATE

Pursuant to Rule 5:26(h), I, Craig Thomas Merritt, counsel for Amici Curiae, hereby certifies on this 28th day of June, 2013, that:

1. The parties appearing as Amicus Curiae are: Virginia Press Association, Virginia Association of Broadcasters, The Associated Press, World Media Enterprises, Inc., LIN Television Corporation, Media General, Inc., Shenandoah Publications Inc., Snowy Mountain Publishing Inc., WP Company LLC, d/b/a The Washington Post.

2. The address and telephone number of counsel for the Amicus

Curiae is:

Craig Thomas Merritt (VSB No. 20281) cmerritt@cblaw.com

Christian & Barton, L.L.P. 909 East Main Street, Suite 1200 Richmond, Virginia 23219-3095 Telephone: (804) 697-4100 Facsimile: (804) 697-4112

3. The Appellant is Phillip D. Webb.

4. The address and telephone number of counsel for Appellant is:

Jeremiah A. Denton III (VSB No. 19191) Vivile R. Dietrich (VSB No. 72893) Rhiannon M. Jordan (VSB No. 78650) Jeremiah A. Denton IV (VSB No. 83818) 477 Viking Drive Virginia Beach, Virginia 23452 Telephone: (757) 342-3232 Facsimile: (757) 340-4505 jerry@jeremiahdenton.com viv@jeremiahdenton.com rhiannon@jeremiahdenton.com jake@jeremiahdenton.com

5. The Appellee is Virginian-Pilot Media Companies, LLC.

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6. The address and telephone number of counsel for Appellee is:

Conrad M. Shumadine (VSB No. 4325) Brett A. Spain (VSB No. 44567) Willcox & Savage, P.C. 440 Monticello Avenue, Suite 2200 Norfolk, Virginia 23510 Telephone: (757) 628-5500 Facsimile: (757) 628-5566 cshumadine@wilsav.com bspain@wilsav.com

7. Three true and correct copies of the foregoing Brief Amicus Curiae were mailed via first class mail, postage prepaid, to counsel for Appellant and Appellee at the above addresses; and

8. Fifteen true and correct copies of the Brief Amicus Curiae were

hand-filed with Clerk of the Supreme Court of Virginia, and one copy in .PDF format was filed with the Clerk via email to scvbriefs@courts.state.va.us.

___________________ Craig Thomas Merritt