737 S.E.2d 890
Va.2013Background
- Tharpe and Shearin contracted with the United States government for Fort Pickett excavation, including rock-related change orders.
- Tharpe, through Shearin, then contracted with the Authority to excavate at Butcher's Creek Landfill, where a rock encounter again led to a requested change order.
- Saunders, owner of Saunders Construction and a competitor, allegedly told Wayne Carter that Tharpe said he would screw the Authority like Fort Pickett.
- Saunders allegedly repeated and republished the statement to the Authority, the community, and the media; Tharpe denies ever making the statement.
- Tharpe and Shearin filed a defamation suit; Saunders and Saunders Construction demurred, arguing the statement was an expression of opinion, not a provably false factual assertion.
- The circuit court sustained the demurrer, prompting appellate review on whether the statement was actionably false and not merely an opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the statement a provable factual assertion or an opinion? | Tharpe/Shearin: false attribution of a factual statement harms reputation. | Saunders: statement expresses opinion; not provably false. | Not an opinion; actionable false attribution may defame. |
| Can a false quotation attributed to a plaintiff be defaming regardless of the truth of the quoted content? | Fabricated quotation injures reputation irrespective of content truth. | Defamatory impact hinges on the factual substance; if merely opinion, no liability. | False attribution of a quotation is actionable defamation even if the quoted content could be true or false. |
| Did the circuit court err in requiring a provably false connotation within the attributed statement? | Attribution itself defames when false, regardless of the underlying content's truth. | Defamation requires a provably false factual connotation within the statement. | Yes; the circuit court erred; attribution itself can be defaming. |
Key Cases Cited
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (1984) (no constitutional value in false statements of fact)
- Williams v. Garraghty, 249 Va. 224 (1995) (pure expressions of opinion not actionable)
- Chaves v. Johnson, 230 Va. 112 (1985) (no constitutional value in false statements; opinion vs fact distinction)
- Raytheon Tech. Servs. Co. v. Hyland, 273 Va. 292 (2007) (whether statement is fact or opinion; de novo review; capable of being true/false)
- Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991) (fabricated quotations can defame even if content is true)