![]() ![]() See American Communications Network, Inc. This is because defamatory meaning is judged from the perspective of the reasonable listener, and to determine whether a reasonable listener would have understood the alleged statement as conveying actual facts, rather than mere opinion, the words must be considered in context. 84, 90 (2014), the court held that “nsuring that defamation suits proceed only upon statements which actually may defame a plaintiff, rather than those which merely may inflame a jury to an award of damages, is an essential gatekeeping function of the court.”įor the trial court to be able to perform this gatekeeping function, it must have all details of the statement claimed to be defamatory. Virginian-Pilot Media Companies, LLC, 287 Va. In fact, the Virginia Supreme Court has affirmatively encouraged trial courts to promptly screen out defamation claims that may lack merit and dispose of them on demurrer. A demurrer is an appropriate vehicle for resolving the question of whether a particular statement will support a defamation action. 127, 132-33 (2003) (holding that it is up to the court to determine whether a statement amounts to fact or opinion). Riverside Healthcare Ass’n, Inc., 265 Va. Whether a particular statement is a potentially actionable as defamation is a question of law to be decided by the court. ![]() The Virginia Supreme Court reiterated this principle as recently as 2006, when it expressly recognized that “the particulars of allegedly defamatory statement may be supplied in a bill of particulars.” See Government Micro Res., Inc. When such details are not included, “they are proper matters to be stated in a bill of particulars.” Fed. When a plaintiff claims defamation, the preferred practice is to include the entire statement (verbatim) as well as all relevant surrounding details of the statement sufficient to demonstrate context. Trial courts can order a bill of particulars “to amplify any pleading that does not provide notice of a claim or defense adequate to permit the adversary a fair opportunity to respond or prepare the case.” Va. When defense counsel is faced with such a situation, the smart move is to move for a bill of particulars. In some situations, plaintiffs’ lawyers will craft the complaint in such a way as to make an out-of-context statement appear defamatory, when the surrounding statements omitted from the allegations would demonstrate that the statement as a whole could only be reasonably interpreted as hyperbole or opinion. In state court, however, guidance from the Virginia Supreme Court suggests that libel and slander cases should be dismissed on demurrer if defamatory meaning is not readily apparent. In federal court, some judges have denied motions to dismiss such claims on the theory that the merits of the claim-while not apparent from the face of the complaint-are plausible and might be proven at trial. What is a trial court supposed to do if the complaint contains only a short, out-of-context excerpt of the defendant’s statement? Before a defamation claim can be presented to a jury, the judge needs to make a preliminary determination that the statement at issue conveys factual information (rather than mere opinions) and that such factual information could be reasonably interpreted as having a defamatory meaning. To bring a successful defamation claim in Virginia state courts, it is necessary to allege facts sufficient to demonstrate to the judge that the statement claimed to be defamatory is capable of conveying a defamatory meaning to a reasonable audience.
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