Opinion
At Law Number 31482
03-04-2005
In Re: Kelly v. Grigsby
Thomas V. Mulrine, Esquire
The Law Offices of Thomas V. Mulrine, P.L.L.C.
27 North King Street
Leesburg, Virginia 20176 Kenneth T. Cuccinelli, II, Esquire
Gura & Day, LLC
6801 Mount Olive Court
Centreville, Virginia 20121 Dear Counsel:
This case came to be heard on Plaintiff Robert Charles Kelly's Motion for Partial Summary Judgment and Defendant John Grigsby's Motion for Summary Judgment. For the reasons stated in this letter opinion, Plaintiff's Motion for Partial Summary Judgment is GRANTED and Defendant's Motion for Summary Judgment is DENIED.
Summary judgment, for all or part of a claim, is the appropriate vehicle when no genuine issue of material fact remains in dispute, and the moving party is entitled to judgment as a matter of law. Va. Sup. Ct. R. Pt. 3, 3:18 (2004). The parties do not dispute the applicable standard of review.
At common law, defamatory words which are actionable per se are:
(1) Those which impute to a person the commission of some criminal offense involving moral turpitude, for which the party if the charge is true, may be indicted and punished.
(2) Those which impute that a person is infected with some contagious disease, where if the charge is true, it would exclude the party from society.
(3) Those which impute to a person unfitness to perform the duties of an office or employment of profit, or want of integrity in the discharge of the duties of such an office or employment.
(4) Those which prejudice such person in his or her profession or trade.
All other defamatory words which, though not in themselves actionable, occasion a person special damages are actionable.
Great Coastal Express v. Ellington, 230 Va. 142, 146-147 (1985) (quoting Fleming v. Moore, 221 Va. 884, 889 (1981)). A crime involving moral turpitude is "an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." Id. at 147 (quoting Tasker v. Commonwealth, 202 Va. 1019, 1024 (1961) (quoting Parr v. Commonwealth, 198 Va. 721, 724 (1957)).
The trial judge determines whether a crime involves moral turpitude. Bell v. Commonwealth, 167 Va. 526, 538 (1937). Adultery is an act of moral turpitude. Nemetz v. INS, 647 F.2d 432 (1981). "[T]he 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." Yeagle v. Collegiate Times, 255 Va. 293, 296 (1998). Once the court makes a finding of defamation per se, in a case involving a private individual without matters of public concern, the matter is submitted to the jury with the instruction that compensatory damages are presumed. See Ellington, 230 Va. at 149-151; Levine v. McLeskey, 881 F. Supp. 1030 (E.D. Va. 1995). However, the public figure must prove to the jury that the speaker acted with malice or recklessness in order to obtain punitive damages. Hustler v. Falwell, 485 U.S. 46, 52 (1988).
A defamatory statement is actionable if, in light of surrounding circumstances, a reasonable person would construe the statement as stating actual facts about a person. Schnare v. Ziessow, 104 Fed. Appx. 847 (4th Cir. 2004) (holding that statements published in Dog News can be interpreted as nothing more than a "lusty and imaginative expression of the contempt felt toward his adversary in the controversy about revising the breed standard" (citations omitted)). See Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (holding that "the connotation that petitioner committed perjury is sufficiently factual to be susceptible of being proved true or false"). Generally,
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 meaning of the alleged defamatory language can not, by innuendo, be extended beyond its ordinary and common acceptation.Carwile v. Richmond Newspapers, 196 Va. 1, 7-8 (1954) (holding that the reasonable understanding of published statements was that the plaintiff was guilty of unethical conduct and the statements therefore constituted defamation per se). Yeagle affirms that "the alleged defamatory statements must still be understood to convey a false representation of fact." Yeagle, 255 Va. at 296 (citing Freedlander v. Edens Broadcasting, 734 F. Supp. 221, 225-27 (E.D. Va. 1990), aff'd 923 F.2d 848 (4th Cir 1991).
In the present case, the Court concludes that the reasonable interpretation of "shacked up" is "to sleep with or live together as unmarried sexual partners." Merriam-Webster Online at http://www.m-w.com. Thus, a reasonable person could interpret "Mr. Kelly's" statement that he "shacked up with some blonde in Hillsboro" as meaning he was having an adulterous relationship. As previously discussed, adultery is considered a crime of moral turpitude. The statement at issue is therefore, defamatory per se.
The Defendant argues that this statement has been taken out of context of a "political satire" delivered before a government body. The Court is not persuaded by this argument. One would never expect a public hearing held before a Board of Supervisors, a place with a deliberative process much like that of a courtroom, to be a proper forum for this type of humor. Courts in other jurisdictions have held that statements are actionable defamation and vice versa depending on the forum. See Frank v. National Broadcasting Co., 506 N.Y.S.2d 869 (1986) (holding that a skit on Saturday Night Live was not actionable libel because of the obvious humor and comedy attached to Saturday Night Live skits); Martin v. Municipal Publications, 510 F. Supp. 255 (E.D. Pa. 1981) (holding that statements published in a "FLASH" section of a magazine were actionable defamation because people unfamiliar with the magazine and the nature of the "FLASH" section could reasonably interpret the statements with a defamatory meaning).
Accordingly, Plaintiff's Partial Motion for Summary Judgment is GRANTED and Defendant's Motion for Summary Judgment is DENIED.
The Court will direct that Mr. Mulrine draft an Order consistent with this opinion to which counsel may note their exception.
Very truly yours,
Thomas D. Horne, Judge