On June 4, 2015, the Virginia Supreme Court hand down Pendleton v. Newsome, No. 141116. It held that the Circuit Court for the City of Richmond error in sustaining a Demurrer to a Complaint for defamation (that a parent supposedly was responsible for the death of her child), reversed and remanded. Id. at 16.
Pendleton reiterated that a “common law complaint for libel or slander historically included three elements: the inducement…; the colloquium…; and the innuendo…. Id. at 9. It also reiterated that “Virginia law recognizes a claim for defamation by inference, implication or insinuation,” with the court having “an essential gatekeeping function”. Id. at 10.
“Allegations that such circumstances [as ‘would reasonably cause the statement to convey a defamatory meaning to its recipients’] attended the making of the statement, with an explanation of the circumstances and the defamatory meaning allegedly conveyed, will suffice to survive demurrer if the court, in the exercise of its gatekeeping function, deems the alleged meaning to be defamatory,” explained Pendleton. “Whether the circumstances were reasonably sufficient to convey the alleged defamatory meaning, and whether the plaintiff was actually defamed thereby, remain issues to be resolved by the fact-finder at trial.” Id. at 11.
The Virginia Supreme Court emphasized that Pendleton was distinguishable from Webb v. Virginian-Pilot Media Cos., LLC, 287 Va. 84 (2014). In Webb, “it was just as likely that other persons were responsible for the allegedly improper conduct of which the plaintiff complained,” id. at 90-91; while in Pendleton, “the plaintiff was the sole and unmistakable target of any innuendo”. No. 141116 at 12.
Pendleton acknowledges that “truth is a defense to a defamation claim”. But the truth must be assessed “in the context” of the statement’s making, and that “cannot be said at the demurrer stage”. Id. at 13. Further, Pendleton underscores “a defamatory innuendo is no more protected by the First Amendment than is defamatory speech expressed by any other means”. Id.
Also, Pendleton rejected Chapin v. Knight-Rider, Inc., 993 F.3d 1087, 1092-93 (4th Cir. 1993) (Virginia law): Virginia does not require that a “libel-by-implication plaintiff must make an especially rigorous showing where the expressed facts are literally true;” the “burden is proof by a preponderance of the evidence”. Id. at 14. Additionally, Pendleton rejected that “the defendant’s words must, by themselves, suggest that the author intends or endorses the allegedly defamatory inference”: “Motive, intent, scheme, plan or design are issues of fact that may be proved by circumstantial evidence as a well as by direct evidence.” Id. at 14-15.
Pendleton observed that at trial “numerous email communications by the defendants tending to demonstrate their motivation and intent”. . . may be admissible, subject to the Virginia Rules of Evidence”. Id. at 15-16. Finally, at trial plaintiff bears the burden of proving inter alia “that the [defamatory] statements, even if facially true, were designed and intended by the defendants to imply that the plaintiff was [wrong and at fault]”. Id. at 16.