SHARON D. YEAGLE v. COLLEGIATE TIMES
Record No. 971304
Supreme Court of Virginia
February 27, 1998
255 Va. 293
Present: All the Justices
James R. Creekmore (Daniel S. Brown; Frank K. Friedman; Woods, Rogers & Hazlegrove, on brief), for appellee.
Amici Curiae: The Thomas Jefferson Center for the Protection of Free Expression; The Reporters Committee for Freedom of the Press; The Student Press Law Center (J. Joshua Wheeler; Robert M. O‘Neil, on brief), in support of appellee.
JUSTICE LACY delivered the opinion of the Court.
In this appeal, we consider whether the trial court correctly dismissed a defamation action because the phrase at issue could not reasonably be interpreted as stating actual facts about the plaintiff as a matter of law.
Yeagle filed a motion for judgment against the Collegiate Times, alleging that the phrase “Director of Butt Licking” constituted common law defamation, defamation per se, and use of insulting words under
We awarded Yeagle an appeal limited to the question whether the trial court erred in holding that, as a matter of law, the phrase “Director of Butt Licking” cannot convey a defamatory meaning. We conclude that the trial court did not err in sustaining the demurrer because the offending phrase cannot support an action for defamation—an issue properly determined by the court as a matter of law.
Causes of action for defamation have their basis in state common law but are subject to principles of freedom of speech arising under the First Amendment to the United States Constitution and Article I, Section 12 of the Constitution of Virginia. The United States Supreme Court has identified constitutional limits on the type of speech that may be the subject of common law defamation actions. Thus, speech which does not contain a provably false factual connotation,1 or statements which cannot reasonably be interpreted as stating actual facts about a person cannot form the basis of a common law defamation action. Milkovich v. Lorain Journal Co., 497 U.S. 1, 16-17, 20 (1990).
In considering the type of speech that falls beyond that which can suрport a defamation action, the United States Supreme Court
Similarly, we have recognized that words used to describe a member of a labor union in the course of a labor dispute, while “disgusting, abusive, [and] repulsive,” will not support a cause of action for defamation for the same reason—they could not “reasonably be understood... to convey a false representation of fact.” Crawford v. United Steel Workers, AFL-CIO, 230 Va. 217, 234-35, 335 S.E.2d 828, 839 (1985), cert. denied, 475 U.S. 1095 (1986). While Crawford involved statements made in the context of a labor dispute which, under federal law, requires a wider tolerance of rhetoric which might otherwise support аn action for defamation, the case nevertheless reaffirms that, to be actionable, the alleged defamatory statements must still be understood to convey a false representation of fact. Seе also Freedlander v. Edens Broadcasting, Inc., 734 F.Supp. 221, 225-27 (E.D. Va. 1990); Polish Am. Immigration Relief Comm., Inc. v. Relax, 189 A.D.2d 370, 373-74, 596 N.Y.S.2d 756, 758-59 (1993).
Whether statements complained of in a defamation action fall within the type of speech which will support a state defamation action is a matter for the trial judge to determine as a matter of law, just as the trial judge, not the finder of fact, must determine whether a statement is defamatory per se because it imputes the commission of a crime involving moral turpitude. Chaves v. Johnson, 230 Va. 112, 119, 335 S.E.2d 97, 102 (1985); Great Coastal Express, Inc. v. Ellington, 230 Va. 142, 148, 334 S.E.2d 846, 850 (1985).
Yeagle argues that the demurrer should have been overruled and the case resolved by a jury because the phrase at issue conveys factual information and thus can support her action for defamation. Yeagle argues that a literal interpretation of the phrase imputes to her
The threshold issue, whether the complained of phrase including inferences fairly attributable to it could reasonably be interpreted as stating actual facts about Yeagle and, therefore, be actionable defamation, is a matter of law to be resolved by the trial court. In this case, the phrase “Director of Butt Licking” is no more than “rhetorical hyperbole.” The phrase is disgusting, offensive, and in extremely bad taste, but it cannot reasonably be understood as stating an actual fact about Yeagle‘s job title or her conduct, or that she committed a crime of moral turpitude.
Yeagle‘s assertion that the phrase connotes a lack of integrity in the performance of her duties also fails and, therefоre, cannot properly be considered as the basis for a defamation action. While “every fair inference” in a pleading may be used to determine whether the words complained of are caрable of a meaning ascribed by innuendo, inferences cannot extend the statements, by innuendo, beyond what would be the ordinary and common acceptance of the statement. Carwile v. Richmond Newspapers, Inc., 196 Va. 1, 8, 82 S.E.2d 588, 592 (1954). Applying this principle, a statement that an attorney did not report certain payments cannot be extended by inference to mean that the attorney acted improperly, for purposes of a defamation action. Perk v. Vector Resources Group, Ltd., 253 Va. 310, 316-17, 485 S.E.2d 140, 143-44 (1997). In this case, as we have said, the litigated phrase itself cannot be taken as asserting actual facts about Yeagle. Furthermore, considering the phrase at issue in
Accordingly, because the phrase at issue could not reasonably be considered as convеying factual information about Yeagle, and therefore could not support a cause of action for defamation, we will affirm the judgment of the trial court.
Affirmed.
JUSTICE KINSER, with whom JUSTICE KOONTZ joins, dissenting.
The issue in this appeal is whether the phrase “Director of Butt Licking” conveys any defamatory factual information about Yeagle. While the trial court must determine as a matter of law whether this phrase is defamatory per se, Chaves v. Johnson, 230 Va. 112, 119, 335 S.E.2d 97, 102 (1985), in ruling on a demurrer, the triаl court is “confined to the legal sufficiency of a pleading, and [must not consider] disputed facts.” Hop-In Food Stores, Inc. v. Serv-N-Save, Inc., 237 Va. 206, 209, 375 S.E.2d 753, 755 (1989) (citing Bellamy v. Gates and Gill, 214 Va. 314, 315-16, 200 S.E.2d 533, 534 (1973)). “A demurrer admits the truth of all properly pleaded material facts. ‘All reasonable factual inferences fairly and justly drawn from the facts alleged must be considered in aid of the pleading.‘” Ward‘s Equipment v. New Holland North America, 254 Va. 379, 382, 493 S.E.2d 516, 518 (1997) (quoting Fox v. Custis, 236 Va. 69, 71, 372 S.E.2d 373, 374 (1988)).
Collegiate Times acknowledges thаt the phrase “Director of Butt Licking” implies that a person either curries favors with others by disingenuous behavior such as fawning or directs others to do so. In fact, the trial court recognized that this title conveys the inferenсe that Yeagle “cultivates favors from others or directs those who do.” “In order to render words defamatory and actionable it is not necessary that the defamatory charge be in direct terms but it may be made indirеctly, and it matters not how artful or disguised the modes in which the meaning is concealed if it is in fact defamatory.” Car-
The phrase is a factual assertion regarding Yeagle‘s job performance and imputes to her an unfitness to perform the duties of her job or lack of integrity in the performance of such duties. Fleming v. Moore, 221 Va. 884, 889, 275 S.E.2d 632, 635 (1981). The phrase also prejudices Yeagle in her profession. Id. At common law, defamatory words are actionable per se if they satisfy еither of these criteria. Id.
For these reasons, I dissent and would reverse the judgment of the trial court and remand this case for further proceedings.