[Part of the argument from plaintiff’s opposition to the motion to dismiss (though see below for more):]
Viewed in context and as a whole, the following statements alleged in Plaintiff’s complaint are actionable:
[1.] “During the past couple of years, Richmond has made national news and international news as a cool place to live, to visit, to play and party. Now we’re making national news because of this fool?”
A “fool” is someone who is lacking in judgment or prudence, a harmlessly deranged person or one lacking in common powers of understanding. Plaintiff is not a fool. In truth, he is a learned man, who majored in Economics and minored in Chemistry at the University of Virginia; who received his law degree from Georgetown University; who received a Master in Laws degree from Trinity College in Ireland, and; who has won over 250 criminal jury trials.
[* * *]
In Morrissey v. WTVR, LLC, decided Thursday by Judge Henry E. Hudson (E.D. Va.), Joe Morrissey—a former Virginia legislator, a disbarred lawyer, and now a Virginia state senator (who just assumed office Wednesday)—sued a Richmond TV station over commentary by reporter Mark Holmberg; the commentary had been aired while Morrissey was unsuccessfully running for Richmond mayor. Here are some key parts of the analysis (as usual in excerpts I post, some paragraph breaks added, and moved text marked with curly braces):
The setting of this lawsuit is a commentary aired on September 2, 2016 by a CBS 6 reporter entitled “Richmond’s Mayor Morrissey?” According to the Complaint, the commentary was republished online in an article with the headline “Holmberg: OMG: Sextin’ Joe Morrissey is leading the mayor’s race!” Morrissey contends that during the broadcast, Holmberg falsely stated, “During the past couple of years, Richmond has made national news and international news as a cool place to live, to visit, to play and party. Now we’re making national news because of this fool?” Morrissey characterizes this allegedly false statement as “the product of spite, ill-will, and an overt desire to discredit and destroy Joe’s reputation for being extremely intelligent.”
The next comment at issue concerns Morrissey’s son. The Complaint alleges that
“Holmberg intentionally spliced together Joe’s comments regarding his son, Chase, and Holmberg’s statement that Joe was ‘lying’, to make it appear that Joe was ‘lying’ about being Chase’s father. During the interview, Joe stated, ‘do you think for a moment if that child [Chase] is mine, I would run from that? Not—not going to happen.'”
At this point, after airing a clip of the prior interview, Morrissey alleges that Holmberg stated, “He was lying to me then. He’s lied to the investigators and everybody else in this case. That’s why the state bar is coming after him, again.” Morrissey maintains that this portion of the presentation was an intentionally spliced clip of the interview and that his “accusation that Joe lied is malicious, spiteful, the product of ill-will, and is an overt attempt to discredit and destroy Joe’s reputation for honesty and integrity.” Morrissey added in his Complaint that “at the time of the on air ‘interview’, there was no evidence that the Virginia State Bar was ‘coming after Morrissey again.'”
Morrissey next contends that Holmberg’s statement that Morrissey “famously and stupidly published a plan[t]ation style ‘Gone with the Wind’ photo of himself and his wife” was defamatory. Morrissey alleges that Holmberg’s statements “evince a clear hatred of [him] with clear racial implications.”
Finally, Morrissey draws the Court’s attention to Holmberg’s concluding comment: “Do we really want to elect this clown, this nonstop, one ring circus, this liar? Or do we want to elect somebody that’s gonna lift us up to the heights that Richmond so richly deserves?” Morrissey contends that “[t]hese false accusations impute to Joe dishonesty, a lack of intelligence, lack of character, lack of sincerity and resolution to perform the duties of Mayor and imply that Joe is unfit to be Mayor of the City of Richmond.” {[Morrissey] describes Holmberg’s remarks as imputing his unfitness to serve as mayor and portraying him as a “stupid liar, who was a sex crazed maniac.”}
The district court dismissed the complaint, reasoning:
[1.] Holmberg’s commentary would be clearly understood as commentary, rather than an interview of Morrissey, and is (as a matter of law) not libelous. Among other things, as the opinion later reasons,
[To be actionable, statements must] have “a provably false factual connotation and thus [be] capable of being proven true or false.” “[T]he verifiability of the statement in question [is] a minimum threshold issue.” “When a statement is relative in nature and depends largely on a speaker’s viewpoint, that statement is an expression of opinion.”
Aside from being nonfactual, much of the commentary at issue is tame in light of the tenor of contemporary political debate. This is particularly true of such amorphous terms as “fool,” “famously and stupidly,” “this clown, this nonstop, one ring circus, this liar.” While such language may be insulting and derogatory, it does not have the requisite defamatory sting. When public figures enter the political arena, they have voluntarily exposed themselves to increased risks from defamatory falsehood concerning them.
[2.] Some of the allegations, the court concludes, are substantially factual, or at least not said knowing they were false or likely false:
[A]n opinion issued by the Supreme Court of Virginia in 2019 affirming a lower court’s revocation of Morrissey’s license to practice law … appears to confirm a factual basis for much of Holmberg’s commentary. The Supreme Court of Virginia’s opinion supported allegations that Morrissey had been convicted of contributing to the delinquency of a minor by engaging in a sexual relationship with a juvenile female and made false statements concerning their relationship. The court also noted Morrissey’s “long and notorious book” of disciplinary history with the State Bar….
Morrissey alleges that Holmberg’s characterization of the Virginia State Bar’s investigation of his conduct is false and defamatory. According to the Complaint, Holmberg said the following: “He was lying to me then. He’s lied to the investigators and everybody else in this case. That’s why the state bar is coming after him, again.” … Morrissey, through counsel, contends that either directly or by implication the comment accuses him of what could be construed to be a criminal offense. However, a careful reading of the Supreme Court of Virginia’s opinion in Morrissey v. Virginia State Bar provides some factual basis for Holmberg’s comments. The deception noted by Holmberg appears to evolve from Morrissey’s conviction for contributing to the delinquency of a minor. The Court’s opinion states that
“Morrissey testified that he was not aware of [the young lady’s] actual age. At the hearing, he pointed to, among other things, the fact that she listed an incorrect birthdate on her job application…. The Bar produced ample evidence that Morrissey actually knew [the young lady] was a minor…. The bar points out that Morrissey, in fact, knew [the young lady’s] true age, [she] was an employee subject to his supervision, Morrissey engaged in sexual relations with her in his law office, and then he bragged about it. The Bar argues that Morrissey should have been ‘guiding associates and law firm staff in in the ethical practice of law. Instead, his misconduct shows a lack of judgment and clear disregard for the rule of law.’ …
“In January 2015, after the entry of Morrissey’s Alford plea, a special prosecutor brought additional charges of felony uttering a forged public record, felony conspiracy to utter a forged record, felony inducing perjury, and perjury. The Bar referred to these charges as ‘Morrissey II.’ The charges stemmed from the allegation that Morrissey had employed a forged court order during the hearing on Morrissey’s Alford plea. The circuit court dismissed the indictments in Morrissey II on the basis that the immunity provision of Morrissey’s plea agreement foreclosed this additional prosecution….”
With respect to Holmberg’s statement, “[t]hat’s why the state bar is coming after him, again,” the Supreme Court of Virginia’s opinion in Morrissey v. Virginia State Bar shows a reasonable factual basis for Holmberg’s opinion. In 2015, following the dismissal of the charges pending against Morrissey in the Henrico County Circuit Court, “the Virginia State Bar began its investigation and issued subpoenas duces tecum to four of [Morrissey’s] criminal defense attorneys.” “On March 24, 2016, at a hearing before the Henrico County Circuit Court, [Morrissey] agreed to turn over his attorneys’ files to the VSB, omitting nothing.”
Clearly, a reporter with access to public records could reasonably conclude that Morrissey was under investigation by the Virginia State Bar at the time of the commentary at issue—and that the investigation included making false statements in connection with the accusations against him…. “[I]n the context of the actual malice inquiry, a duty to investigate the accuracy of one’s statements does not arise until the publisher of those statements has a high degree of subjective awareness of their probable falsity.”
[3.] As to “Morrissey’s publication of what Holmberg characterized as a “plantation style ‘Gone with the Wind’ photo of himself and his wife,'”
Morrissey alleges that “[i]n fact, Joe’s wife is African-American. Again, Holmberg’s statements evince a clear hatred of Joe with clear racial implications.” Morrissey denies publishing a “plantation style photo” to anyone.
Morrissey contends that Holmberg’s characterization, coupled with his display of the photo, portrayed a defamatory implication of racism. However, the apparent import of Holmberg’s display of the photo was to demonstrate his view of Morrissey’s judgment. As with any political commentary, a reader could draw a defamatory inference if they were so inclined, but nothing said by Holmberg necessarily kindled a suggestion of racism.
Defamatory implication is not analogous to psychoanalytical free association in which a therapist asks a person to freely share anything that comes to mind—i.e., what does this image remind you of? To state a plausible claim, the defamatory implication must be firmly moored to the allegedly defamatory language or image.
“[A]llegedly defamatory words are to be taken in their plain and natural meaning and to be understood by courts and juries as other people would understand them, and according to the sense in which they appear to have been used.” The words accompanying Holmberg’s display of the photograph neither support a reasonable implication of racist overtone, as Morrissey contends, nor an actionable claim of defamation.
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