delivered the opinion of the Court.
In this case, we are asked to determine whether a public official can use the “small group theory” to meet the “of and concerning” element of a claim for defamation.
Following his confrontation with and arrest by the Elkton chief of police, M. Lee Dearing, the mayor of Elkton, made a number of statements alleging corruption, dishonesty, and felonious conduct by the Elkton police department. From February through November 1999, Dearing accused the police department of intimidating witnesses, stealing property, harassment, misappropriation of money, and improperly disposing of drug and gun evidence. These statements were published in newspapers serving the Elkton community. At that time, the Elkton police department had from five to eight members.
Donald A. Dean, Jr., a member of the Elkton police force, instituted this defamation action against Dearing on the basis of these statements, seeking compensatory and punitive damages. Dearing filed a demurrer asserting that the motion for judgment did not state a cause of action for defamation because,
inter alia,
the complained of statements referred to conduct of the Elton police force and were not “of and concerning” Dean specifically. In response, Dean, relying on
Ewell v. Boutwell,
The trial court sustained Dearing’s demurrer and dismissed the motion for judgment, holding that under
New York Times Co.
v.
Sullivan,
To prevail in a defamation cause of action, a plaintiff must establish that the alleged defamatory statements published were “of or concerning” him.
The Gazette, Inc. v. Harris,
The continued viability of this exception has been called into question when the small group is a governmental agency. In
New York Times v. Sullivan,
the United States Supreme Court considered a defamation action brought by a city commissioner who supervised the police department based on conduct ascribed to the police force in a newspaper advertisement. The Alabama Supreme Court concluded that the “of and concerning” requirement was satisfied based on the “common knowledge” that a police commissioner was responsible for the actions of the police department, even though the police commissioner was not implicated by name or office in the offending advertisement.
New York Times,
Central to the Supreme Court’s decision was the principle that prosecutions for libel of government have no place in American jurisprudence. Id. at 291-92. The Supreme Court reasoned that to read a general reference to the police force as a reference to a specific person “would sidestep” this principle by “transmuting criticism of government, however impersonal it may seem on its face, *489 into personal criticism, and hence potential libel, of the officials of whom the government is composed.” Id. at 292. Such a proposition “strikes at the very center of the constitutionally protected area of free expression.” Id. Thus, the Supreme Court concluded that “such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations.” Id.
New York Times
v.
Sullivan
did not specifically address the “small group theory” but it did establish that a reference to a governmental group cannot be treated as an implicit reference to a specific individual even if that individual is understood generally to be responsible for the actions of the identified governmental group. The rationale of the Supreme Court in
New York Times
did, however, foreshadow the Court’s holding in
Rosenblatt
v.
Baer,
In
Rosenblatt,
the defendant published a column in a newspaper raising questions about the operation of a recreational area in prior years when the plaintiff, under the direction of two elected Commissioners, supervised the recreational area. There was no direct reference to the plaintiff, but the plaintiff’s witnesses testified that they “read the column as imputing mismanagement and peculation” during plaintiff’s term as supervisor.
Rosenblatt,
Following the opinion in
Rosenblatt,
there is little question that the use of the “small group theory” alone as the basis for satisfying the “of and concerning” element of a common law defamation action against a governmental actor does not survive constitutional scrutiny. An allegedly defamatory statement which imputes misconduct generally to a governmental group constitutes libel of government, for which there is no cause of action in American jurisprudence.
New York Times,
Dean nevertheless asserts that alleging a cause of action based on the “small group theory” is sufficient to withstand a demurrer and that he should be allowed to proceed to trial to introduce evidence demonstrating that the statements in issue are “of and concerning” him. We disagree.
A demurrer is based on the contention that a pleading does not state a cause of action or fails to state facts upon which the relief demanded can be granted. Code § 8.01-273. Dean’s pleadings contain the defamatory statements referring to Elkton “law enforcement,” police department, or police force, but contain no allegations, factual or otherwise, addressing how the articles reference Dean specifically or could be understood to do so, except based on his status as a police officer. As we have just discussed, the “of and concerning” element of common law defamation cannot be satisfied as a matter of law by either the “small group theory” or allegations and evidence that readers of allegedly defamatory statements understood the statements referred to a member of the governmental group based solely on that person’s membership in the identified governmental group.
Rosenblatt,
Accordingly, we conclude that the trial court did not err in sustaining Dearing’s demurrer and dismissing Dean’s common law action for defamation.
Affirmed.
Notes
One statement did refer to Dean by name, but the trial court concluded that this statement was not defamatory as a matter of law and this finding is not challenged on appeal.