Some thoughts and law on the issue of libel as it applies to the U.Va. rape hoax in the pages of the Rolling Stone. 

VVa. Code. Ann. §8.01-45 Action for insulting words.

·                                 All words shall be actionable which from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace.

            The Virginia statute arose out of Virginia's long history of dueling. "Although application of [§8.01-45] is no longer confined to its original purpose of preventing duels, it has been interpreted by Virginia courts to be virtually co-extensive with the common-law action for defamation. For this reason any constitutional limitations that apply to the plaintiffs’ defamation action must necessarily apply to their “insulting words” claim as well." Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280, 1987 U.S. App. LEXIS 12607 (4th Cir. Va. 1987). Va. Code. Ann. §8.01-45 only penalizes words used in a verbal attack directed at a particular individual in a face to face confrontation that presents a clear and present danger of a violent physical reaction. Thompson v. Town of Front Royal, No. 5:98CV00083, 2000 U.S. Dist. LEXIS 3876 (W.D. Va. Mar. 16, 2000). Thompson calls directly into question the ability of a group to bring an action under Va. Code. Ann. §8.01-45. However, The Thompson court's statement that Va. Code. Ann. §8.01-45 only applies to individuals is dicta. That is, the Thompson court is ruling on a statute of limitations matter and it is not faced with a corporate plaintiff. Thompson is the only Virginia case I could locate that alleges this limitation. I would say that a strong argument could be made that Virginia should follow the Restatement (Second) of Torts § 564A standard, set forth as: "One who publishes defamatory matter concerning a group or class of persons is subject to liability to an individual member of it if, but only if,

(a) the group or class is so small that the matter can reasonably be understood to refer to the member, or

(b) the circumstances of publication reasonably give rise to the conclusion that there is particular reference to the member. . . ." "[Va. Code Ann. §8.01-45] plainly requires that the words used must not only be insults, but they must also “tend to violence and breach of the peace.” Allen & Rocks, Inc. v. Dowell, 252 Va. 439, 477 S.E.2d 741, 1996 Va. LEXIS 107 (Va. 1996). The Allen court is strongly reverting back to the original purpose of the statute, to provide an alternate to dueling. If not incite to violence, then no recovery. Here, there was a measure of violence directed at the Phi Kappa Psi fraternity house, including smashed windows, bricks or other heavy objects thrown at the building and people living within, angry protests outside the house requiring police presence and graffiti painted on the building.

            As a matter of state law the negligence standard should be applicable to media and nonmedia defendants alike. Gazette, Inc. v. Harris, 229 Va. 1, 325 S.E.2d 713, 54 A.L.R.4th 685, 1985 Va. LEXIS 171 (Va. 1985), cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (U.S. 1985) cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (U.S. 1985). The application of this negligence standard is expressly limited, however, to circumstances where the defamatory statement makes substantial danger to reputation apparent. The trial judge shall make such determination as a matter of law. If, on the other hand, no substantial danger to reputation is apparent from the statement in issue, New York Times malice must be established to recover compensatory damages. Gazette, Inc. v. Harris, 229 Va. 1, 325 S.E.2d 713, 54 A.L.R.4th 685, 1985 Va. LEXIS 171 (Va. 1985), cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (U.S. 1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (U.S. 1985).

            "In an action brought by a private individual to recover actual, compensatory damages for a defamatory publication, the plaintiff may recover upon proof by a preponderance of the evidence that the publication was false, and that the defendant either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based. Under this standard, truth no longer is an affirmative defense to be established by the defendant. Instead, the plaintiff must prove falsity, because he is required to establish negligence with respect to such falsity. Such liability may be based upon negligence, whether or not the publication in question relates to a matter of public or general concern." Gazette, Inc. v. Harris, 229 Va. 1, 325 S.E.2d 713, 54 A.L.R.4th 685, 1985 Va. LEXIS 171 (Va. 1985), cert. denied, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, 1985 U.S. LEXIS 2356 (U.S. 1985), cert. denied, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653, 1985 U.S. LEXIS 2499 (U.S. 1985).

            One of the key issues in the Rolling Stone article is Sabrina Rueben Erdely's failure to verify negative statements about people in her story. The Virginia Supreme Court in a very similar case addressed the issue. "In a defamation action brought by a school teacher against newspaper reporter and his employer, where a number of supervisors, a fellow teacher, and students, including some classmates of the complaining students, testified as to plaintiff’s good qualities as a teacher and contradicted virtually all the negative statements made by the persons the reporter interviewed, the students who contradicted the negative testimony were all shown to have been readily available for interview in the Richmond area, while the school authorities would not furnish the reporter with the names or addresses of other students in plaintiff’s classes, the jury could have inferred from the evidence that the reporter could have obtained this information from the students he interviewed but negligently failed to do so, and, in fact, one student gave the reporter the names of some of the other students, but the reporter apparently did nothing with the information, the jury had ample evidence from which to conclude that a reasonably prudent news reporter writing the article could readily have contacted a number of other students to verify (or contradict) these accusations and should have done so." Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 362 S.E.2d 32, 1987 Va. LEXIS 260 (Va. 1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228, 1988 U.S. LEXIS 2315 (U.S. 1988).

            "Words that impute the commission of a crime that is punishable by imprisonment in a state or federal institution are actionable per se." Schnupp v. Smith, 249 Va. 353, 457 S.E.2d 42, 1995 Va. LEXIS 53 (Va. 1995). In this story, Erdely alleged actions that constituted rape and failure to report crimes. In Virginia Code Ann. § 18.2-61 provides for a mandatory minimum sentence for rape of five years and a maximum of life in prison. The Rolling Stone made allegations of rape. According to the Virginia Supreme Court, those are actionable per se. That means, the case will survive a motion to dismiss and the jury will be instructed the same.

            In this case, there is expert evidence of the standard for investigative reports. However, Virginia does not require that. "The trial court did not err in excluding evidence from an expert witness, a nationally known journalist, proffered on the standards for investigative reporting. A jury in this state is as competent as any expert to form an intelligent and accurate opinion as to whether a reporter should have conducted additional investigations. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 362 S.E.2d 32, 1987 Va. LEXIS 260 (Va. 1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228, 1988 U.S. LEXIS 2315 (U.S. 1988).

            Jurisdiction might be a problem . The Fourth Circuit and the Virginal Supreme court have held: "It is not the place where the libelous article is printed, but the place where it is published and circulated, that makes the words actionable under this section." Haskell v. Bailey, 63 F. 873, 1894 U.S. App. LEXIS 2450 (4th Cir. Va. 1894). Where a "defendant, in Virginia, wrote a letter to a third party in Washington, D.C., containing defamatory statements about the plaintiff. Plaintiff questioned defendant in Virginia in regard to the letter and defendant substantially repeated and assumed responsibility for the contents of the letter when he admitted its authorship and said to defendant that the letter spoke for itself. The defendant was liable in Virginia under this statute as he reiterated the insulting words to plaintiff in Virginia." Davis v. Heflin, 130 Va. 169, 107 S.E. 673, 1921 Va. LEXIS 148 (Va. 1921).

            Under Va. Code Ann. § 8.01-45, "malice, either express or implied, is essential to a recovery for slander or for insulting words, but actual or express malice need not be proved except as a basis for punitive damages. For the latter purpose it is indispensable." Windsor v. Carlton, 136 Va. 652, 118 S.E. 222, 1923 Va. LEXIS 112 (Va. 1923). Not the Va. Supreme Court's best effort at clarity. However, I think the court is saying that malice is only required for punitive damages. The court has also held that for insulting words made actionable by the statute, "it is not necessary to prove actual or pecuniary loss." Weatherford v. Birchett, 158 Va. 741, 164 S.E. 535, 1932 Va. LEXIS 294 (Va. 1932). "The law presumes that damages result from the utterance of insulting words, made actionable by the statute, just as it does where the words uttered are actionable per se. It is not necessary in either case in order to recover, to prove actual or pecuniary loss." Boyd v. Boyd, 116 Va. 326, 82 S.E. 110 (1914); W.T. Grant Co. v. Owens, 149 Va. 906, 141 S.E. 860 (1928). See also, Jordan v. Melville Shoe Corp., 150 Va. 101, 142 S.E. 387, 1928 Va. LEXIS 298 (Va. 1928). "In an action, under this section, there is no rule of law fixing the measure of damages, nor can it be reached by any process of computation." Boyd v. Boyd, 116 Va. 326, 82 S.E. 110, 1914 Va. LEXIS 36 (Va. 1914). "The amount of the damages is to be measured by the prejudice sustained by the plaintiff."  Moseley v. Moss, 47 Va. 534, 1850 Va. LEXIS 5 (Va. 1850). There is no fixed standard for measuring exemplary or punitive damages, and the amount of the award is largely a matter of discretion with the jury. Old Dominion Branch 496 v. Austin, 213 Va. 377, 192 S.E.2d 737 (1972). "While there is no rule fixing the quantum of compensation for insult, mental suffering, and injury to the reputation of the plaintiff or for punishment of the offender, one of unblemished reputation is entitled to greater damages than one whose reputation is such that he is little hurt from the action of which complaint is made. The effect of bad reputation is to reduce the damage inflicted." Stubbs v. Cowden, 179 Va. 190, 18 S.E.2d 275, 1942 Va. LEXIS 211 (Va. 1942).

Walt-in-Durham