*1 Richmond James N. Moore,

W. III Bedford March 1981.

Record No. 781061. C.J., Harrison, Cochran, Poff, Carrico, Thompson, Compton, JJ.* Present: * argument presided Mr. Chief Justice I’Anson the oral of this case but retired January 31, 1981. *3 Poindexter;

Gerald G. Charles E. Carter Nathan Jones [N.Y.] Poindexter, Poindexter & [N.Y.]; on briefs), for appellant. Smith,

Thomas E. Albro (Tremblay & brief), on for appellee. COCHRAN, J., delivered the of the Court. opinion Moore, III, W. Bedford this initiated libel action James N. against in the court below. Final was entered the trial Fleming judgment by $10,000 court the on verdict Moore jury awarding in compensatory $100,000 in punitive damages.1 1During argument, remedy oral a motion to dismiss for failure to defects the in 21, 1979, appeal awarded, appeal February bond was renewed. On was when by 1979, $120,000. bond set On was this Court at March the Circuit Clerk of Fleming given appeared Court certified that had before bond the amount her and $120,000 surety. approved therefore the motion to See We overrule dismiss. 8.01-676; § Code Rule 5:31. tenured, white, a in the Humanities Moore was assistant professor Virginia Division of the School of at the University Engineering “Shack known as the 1975-76 academic residence year. His during Mountain”, architectural significance located in Albemarle has County, a land tract of its adjoined because Jeffersonian The styling. situated and others and owned “Evergreen”, by known Fleming the Rivanna near Reservoir. a estate broker and developer, sought black real

Fleming, approval then from fall of from the Commission and first Planning have “Evergreen” the Board of of Albemarle County, Supervisors rezoned from Unit Agriculture Development. Residential Planned a to construct unit rezoning, develop- Upon Fleming proposed planned black, ment of a residential units for high-density predominantly lower-middle-income group occupants. several held Commission and Board of Planning Supervisors briefly and Moore Fleming’s consider

meetings application spoke two of during proposed development. meetings opposition constructed, create would Moore’s was that the if position project, Reservoir, which water to hazard to the Rivanna supplies pollution Charlottesville, detract the value and that it would from also City concern- his own Moore never interviews gave press property. about except never ing spoke public planned development at the two the course of debate over During pro- meetings. public if advanced the idea county officials development, planning posed tree buffer for were to be Fleming’s rezoning application approved, “Evergreen” should be line between the required along boundary and “Shack Mountain” Moore felt that the buffer would properties. idea since it screen from the good “Evergreen” would his property was county reviewed Fleming’s development. plan appropriate it, afforded an comment on agencies, was opportunity the Board and his denied rezoning application subsequently ,1975. in December Supervisors In in two January, published paid newspapers *4 advertisement “RACISM” which Moore in was identified captioned The advertisement Charlottesville-Albemarle name. in the by appeared Tribune, a of in the on general circulation community, newspaper 8, 1976, Daily, and The Cavalier in student news- January university 16, 1976, in its 15 and January editions.2 that the Claiming paper, 2 appeared print as The advertisement follows: (Paid Advertisement) RACISM opportunity provide housing pleasant the to

I have endeavored realize and 888

article his injured reputation university community, this brought action for libel.

The first issue on is court erred in rul whether the trial appeal law, as a per se and in of ing, matter that the article was defamatory the issue submitting of to the such a At liability jury theory. upon surroundings working great people people sort of who made this the —the country that is. Farmington expect any buy my I do not members to The tenured houses. working position-holders expense who live off the dole at the the of already well-housed, racially- people expected are to live in a could not integrated neighborhood, anyhow. great irony country There is a deal of in the fact that here in Mr. Jefferson’s years situating upon hilltop after his vision of his beloved Monticello the overlooking developing community replica the we have a of Monticello overlooking my the property occupied hill by a which is man who wants to deprive working people sought opportunities of the same that Mr. Jefferson quarters for them. Mr. Jefferson even located his slaves’ down the from hill house, Moore, occupant but Bedford of little Monticello does want not any sight. people black within his great waging There is a conflict the haves and the have-nots. Ob- between viously segment security we have created too much financial for the tenured greed community repeatedly by expres- of the economic whose their shown got you”. sion of “I’ve mine —too bad about liberty opportunity. by I am lover and freedom of I cannot stand by no-growth oppressed living people see the have-nots who are off of our Country highest living work. I know that this not did achieve standard in by no-growth by man, yet oppression working today the world of the living opportunity improve violently being opposed one’s standard is people oppose my neighborhood. proposed the same who being Pollution of the reservoir used excuse to no- current foster growth. solution, course, guaranteed The tois remove the incomes these greedy people put position seeing through them the the world eyes seeking improve living opportunity of one her standard. Only pollution they then would admit that the excuse is a sham. Evergreen, develop people I will and lot of will benefit from it. Signed: FLEMING JAMES N. article, jury It is unclear from the whether told that the record was if de famatory all, per Appendix was se. The includes Instruction No. Although transcript “given” provided, which so marked the trial court. reading jury by the all marked records the trial court of other Instructions “given”, it so read. fails to show that Instruction No. was however, Assuming, given, that Instruction was No. 8 we conclude that the jury upon theory per trial court the case submitted se defamation. Other jury presumed general instructions informed the that Moore was to have suffered damages, injury only that the absence of actual diminu- considered damages. presumption tion of is the critical distinction between Stores, Shupe defamation se and other actions for defamation. See Rose's v. Packers, 374, 376, Slaughter Valleydale (1972); S.E.2d Va.

889 court, than the rather trial, conceded that the trial counsel for se, but per libelous the article was should determine whether jury, the court. made by he to the determination objected between actions distinction states, Unlike most makes no Virginia Stores, 374, 213 Va. Shupe Rose’s for libel and those for slander. Note, in Vir- 375-76, 766, (1972); see S.E.2d 767 192 Defamation Slander, (1961); L. Rev. 1116 ginia Merger 47 Va. Libel of —A 112, 1971). have held Prosser, (4th n. 33 ed. We Torts at 763 W. § slander, and that the that for libel are treated as actions for actions that defamatory are alleged common-law rules of slander so applicable, is actionable to the according following language principles: per se are actionable At common-law words which defamatory are:

(1) which a of some Those commission impute person offense criminal moral for which involving turpitude, party, true, (2) if the Those is be indicted and charge may punished. which a dis- contagious that is infected with some impute person ease, true, from where if the it would exclude the charge party (3) society. Those which to a unfitness to impute person perform the duties of office or want or employment profit, such an office or em- of the duties of integrity discharge (4) Those which such or her ployment. prejudice person which, All other words though trade. profession defamatory actionable, not in themselves occasion person special are actionable.

Shupe, 376, 767, Carwile v. Rich- Va. at 192 S.E.2d at quoting 1, 7, (1954). mond Newspapers, 588, 196 Va. 82 S.E.2d Racism, course, criminal neither disease nor contagious Thus, offense for which a find- may indicted person punished. per se case ing defamation in could be based only present upon the effect of the work. The trial court allegation upon plaintiff’s ruled, law, aas matter of of racism the allegation prejudiced in his profession.

To be actionable without we have damages”, proof “special held that the words must contain an that is imputation “necessarily hurtful” in its effect business and must affect him plaintiff’s 339, 346-48, 260, (1956). jury Va. S.E.2d Since instructions allowed jury damages, presume presented jury theory the case was on the se given. defamation even if Instruction No 8 was not 253, mes, Va. trade Hay James v. particular occupation.

261-62, Accord, Prosser, (1933). 168 S.E. Torts § W. (4th (“defamation ed. with the 1971) of a kind incompatible itself”). business, trade, conduct of or office proper profession There must be a state- nexus between content of the and the ment skills or character out the carry required particular (Second) of the Restatement of Torts occupation plaintiff. § *6 (1976). Comment e For because an is attorney required example, rules, to adhere to the unethical attorney with disciplinary charging Carwile, 8, conduct is S.E.2d per supra, se. Va. at 82 defamatory 196 The be to the 592. words themselves must necessarily damaging in attorney his profession. statement, however,

Not hurtful” every defamatory is “necessarily to a business and his trade or touches the in plaintiff’s plaintiff special a that a has refused to occupation. allegation money person pay per debt is not se if that a vocation is not in defamatory engaged person in which credit is for the and of his effectual conduct necessary proper Craft, 512, 519, Rosenberg business. M. & v. 182 S.E.2d Sons Va. 29 375, Accord, (1944). 572, 378 Company, Weaver v. Finance 200 Va. (1959). Likewise, 106 S.E.2d 620 that written notice credit being denied to a not touch the in her does bookkeeper-secretary plaintiff trade or Shupe, supra. vocation. See a state- special defamatory That ment have had an adverse may work does not a impact upon plaintiff’s per make that statement se where the defamation not defamatory hurtful” “necessarily business and does not touch plaintiff’s in his trade or plaintiff special occupation.4 Because actions in are Virginia governed by common-law rules libel actions, to slander libel cases from other are applicable jurisdictions however, not analogous There are helpful.5 cases, that slander- holding Communism ous in imputations do not touch the individual his See, chosen e.g., Korry profession. & Telephone International Tele- graph Corp., F. (S.D.N.Y. 444 1978) Supp. (allegation 4 “Thus, physician a se, statement that a per consorts harlots is not actionable although charge improper that he patients makes advances to his is actionable.” necessarily The former reputation statement does physician not his affect as a but the directly § (Second) (1976). latter it. affects Restatement of Torts Comment e Annot, Although 1196, § (1954 Service) 33 A.L.R.2d & Later Case details many concerning allegations intolerance, cases of racial most of the cases concern libelous, slanderous, jurisdictions, not statements. In most libelous statements are special damages though they plaintiff actionable without even do touch the his not in particular already noted, Virginia distinguish trade or vocation. As have we does not between slander libel actions. held not Communist ambassador, was a that a former journalist, Co., 5, se); Mfg. N.Y.2d Parts Gurtler v. Union per slanderous engineer that an (1956) (allegation N.E.2d N.Y.S.2d se). per was a held not to slanderous Communist wanting not case, Moore with Fleming charged In the present racism allegation home, of his but reside within sight blacks to a teacher.6 was of Moore’s not made in context employment that, affected might adversely have We while the allegation conclude in work, necessarily affect him did not Moore’s statements se. not defamatory were consequently particular profession hold, therefore, ruling Fleming’s We that the trial court erred hurtful per se was necessarily advertisement was in that its affected adversely effect Moore’s employment ruling, this as a teacher. The erroneous capacity consequence trial, was reversal remand for was that the jury new requiring and also award damages punitive allowed to general presume based on the damages damages. presumed trial, case we will resolve

Since this must be remanded for a new retrial. other issues that otherwise arise may again upon thus contends that Moore figure showing could absence recover defamation *7 malice”, “knowl is, that with “actual that with the statement was made of was that was with whether it edge disregard false or reckless Sullivan, not”, U.S. false in New York Times Co. v. or defined (1964). Inc., Welch, 418 U.S. Court v. Robert Supreme Gertz (1974), a the of provided following description public figure: most figure]

For the those who attain this status part public [of have roles in the of society. assumed affairs prominence especial influence such Some occupy positions persuasive power that are deemed for all More figures they public purposes. those classed as have commonly, thrust themselves public figures to the forefront of controversies to in order particular public event, the the issues In influence resolution of involved. either they invite attention comment.

Moore, a teacher at the of Virginia, did not University occupy “such and influence” position persuasive that he could power allege, example, against The advertisement did for that Moore discriminated the black students in his classes. de- Thus,

deemed a we need only “for figure all public purposes”. “Evergreen” termine to whether relative the because of his activity he was a that limited for proposal public figure purpose. con- hearings We do not believe role in the that Moore’s public cerning figure. merits his classification as Gertz “Evergreen” public of an cautioned and extent that a court focus the “nature must individual’s rise controversy giving participation particular to the defamation”. fact that Moore 418 U.S. at 352. The mere spoke twice in is not the public hearings “Evergreen” concerning proposal determinative since use of resulted substantially forum public Time, from his desire Inc. v. Fire- interests. In protect private stone, (1976), 424 U.S. the Court held that resort judicial in order vindicate did not process make private rights plaintiff here, This where figure. public reasoning equally applicable appears Moore resorted to administrative the value body in order to protect Moreover, his own residence. in Wolston like plaintiffs Inc., Gertz, Digest, (1979), Reader’s 443 U.S. never discussed media. He did not “Evergreen” proposal to organize or lead Since Moore’s attempt “Evergreen”. opposition involvement at the was in his as an hearings adjoining public capacity landowner whose be affected private might property proposed Therefore, we conclude that he was not a development, figure. public he was not show, as a recovery of com- required prerequisite that pensatory acted with malice that met the New damages, Fleming York Times standard. contends, further

Fleming however, that even if Moore was not a trial figure, court erred in to award allowing jury damages Gertz, on the basis punitive of common-law malice.7 In Court condemned the of either awarding presumed punitive least damages, “at when is not based liability on showing knowl edge falsity reckless truth”.8 disregard 418 U.S. at 349. The award of damages without of “actual proof injury”9 con- jury The court punitive instructed the in Instruction No. 9 that could jury preponderance if the awarded believed from a of the evidence that malice”, is, by revenge, acted with personal “actual that he “was motivated spite, injure *8 ill to will or desire the Plaintiff”. 8 may presumed Since we have damages ruled that Moore not recover because the se, Fleming’s article was not libelous we do not reach contention that Gertz prohibit damages awarding presumed showing knowing would of without a of falsity disregard or reckless for the truth. 9 damages opinion injury” The noted for “actual are not limited to out-of- loss, pocket permitted impairment compensate and that trial courts are to of for reputation standing community, humiliation, anguish personal and and mental

893 than rather opinion demned as “invit[ing] juries punish unpopular of a by publication individuals for sustained injury compensate Gertz, of vacated an award punitive false fact”. Id. On the basis of we based the award was upon where entered damages against publisher malice, was necessary held that it of common-law finding “clear the truth by for disregard show reckless knowledge falsity be awarded. before could damages evidence” convincing punitive Burke, 800, 805, 224 S.E.2d Publishing v. 216 Va. Newspaper Corp. 132, 136 (1976).

Gertz, de however, did not extend its rule to non-media explicitly Indeed, not noted that it has fandants. Court has recently Supreme resolved whether the First requires application Amendment Hutch New York Times rule in cases defendants. involving non-media Proxmire, 111, (1979).10 inson 443 Since Flem v. U.S. 133-34 n. 16 ing is not a media defendant and Moore figure, is not Gertz Nevertheless, does the concern not control the case. we share present at the “in assessment expressed by juries damages punitive Gertz amounts no relation to wholly necessary unpredictable bearing Therefore, actual harm caused”. 418 U.S. at 350. we hold that any instruction must be the same on structured punitive damages Times, malice”, standard of of “actual as defined in New York proof Gertz, Burke, and followed in that is in defamation applied required i.e., defendants, actions media clear and against convincing proof knowledge reckless truth. falsity disregard In with the conformity actions, rule in tort general no punitive awarded for may slander or libel unless compensatory suffering. supported by competent evidence, Awards must although necessary assign injury. that the evidence a dollar value to the 418 U.S. at 350. 10Lower courts are protections provided divided whether the on First Amendment media defendants in New York applicable Times and are Gertz to non-media de Metz, fendants. Several courts have refused to extend Rowe v. Gertz. 195 Colo. 424, (1978), rev’g 20, (1977); App. Gengler 579 P.2d 83 39 Colo. 564 P.2d 425 v. Phelps, 465, (1978); Harley-Davidson Motorsports, 92 N.M. 589 P.2d 1056 v. Inc. Markley, 361, (1977); Corp., 568 279 Or. P.2d Calero v. 1359 Del Chemical 68 487, (1975). distinguish Wis.2d 228 N.W.2d 737 Other courts have refused be Brown, protections Bryan tween the afforded media non-media defendants. v. 577, denied, (Ala. 1976), Millsaps 339 So.2d (1977); 583-84 cert. 431 U.S. v. Company, 735, Bankers App. (1976); 35 Ill. 3d 342 N.E.2d 329 Jacron Sales Life Sindorf, (1976), aff’g Co. 276 Md. App. A.2d 688 Md. (1975); Ryder Latham, (Tex. A.2d Truck App. Rentals v. S.W.2d Civ. Eaton, 1979). Through See J. Law American v. Robert Gertz of Defamation Welch, Inc., Beyond: Analytical Primer, (1975), An L. 61 Va. Rev. predicting Supreme against extension Court defamation suits non- Gertz published press. media defendants where falsehood was *9 are awarded. held

damages As the rule is generally to it exception action, that in a slander or libel where defamation is actionable the se, per rule punitive alone be awarded. damages may We the approved Burke, and the supra, in 224 S.E.2d at 136. exception 216 Va. se, theAs per advertisement the in case was not actionable present not exception is applicable. did Moore not he allege monetary that suffered prove any however, mortified, loss. He insulted, did allege, that he had been held ridicule, toup and in humiliated We conclude that statement. libel per defamation, actions not based se where knowing falsity upon disregard shown, reckless for the truth is dam compensatory ages should be limited to the damages actual to have been proved sustained, but such should be restricted to out- not necessarily Therefore, loss. See fn. 10 of-pocket supra. we hold that Moore entitled to recover actual compensatory damages injury, proof including such elements as to his in damage reputation standing embarrassment, humiliation, community, suffering. and mental which under “Special damages”, the common-law rule must be shown as a to where the prerequisite recovery words are not se, actionable are not be limited to To the extent loss. pecuniary Shape that language in may be construed to that indicate emotional upset embarrassment cannot constitute damages”, “special modified. hereby

For the reasons assigned, of the trial court will be judgment reversed and the case remanded for new trial consistent with views herein expressed. remanded.

Reversed and HARRISON, J., dissenting. $110,000

I find the jury’s awards case be shock- totalling in this It Moore, is inconceivable that a ing. as is Mr. respected professor, could have been damaged or elsewhere community University “advertisement” which at the behest of Fleming. Mr. appeared

I attach little word significance “racism” which heads the advertisement. The “racism” and words “racist” are bandied about in our abandon. all society races complete People currently utilize these terms voice their innumerable real and imagined Indeed, grievances. it would not difficult to find a which newspaper contains a against one another complaint by for some action party “racism”, or “reverse allegedly grounded racism.” inserted papers advertisement we examine the When we language, and hortatory self-laudatory therefrom Fleming’s strip tenured members Farmington find view of that he takes dim would they financial security without their and feels that professors then advertisement the “have nots.” more sympathetic Professor between Thomas Jefferson makes a comparison to make best.” Fleming “second attempts in which latter emerges in sight his slave quarters Jefferson located by stating point Monticello, sight. want black whereas Moore does not people location of the suggested Moore’s *10 This refers to apparently approval and Fleming’s buffer or between his proposed tree screen property development. ill-mannered, short- in bad taste is

The advertisement is It conceived and intemperate and indiscreet. is poorly tempered, irate, black real estate and frustrated diatribe disappointed, matter rezoning white who that his opponent believes developer he over is not as is concerned pollution apprehensive black, lower-middle-income” develop- of a prospect “predominantly However, this reaction by Fleming ment adjoining property. have been Professor could well anticipated predictable the realm of real when he left the academic and entered community estate and the controversial arena of zoning. langu- development restrained, reasonable, of market age always temper- place unfair, raucous, ate. It is and sometimes biting, often sharp cruel. Professor Moore understandable we

Although indignation here be the should not allow the involved publication predicate of an for libel an award of I would enter final damages. action for the defendant. judgment