PRESENT: All the Justices
JEFFREY W. THARPE, ET AL.
OPINION BY
v. Record No. 120985 JUSTICE ELIZABETH A. MCCLANAHAN
FEBRUARY 28, 2013
J. HARMAN SAUNDERS, ET AL.
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Theodore J. Markow, Judge
In this defamation case, Jeffrey W. Tharpe ("Tharpe") and
Shearin Construction, Inc. ("Shearin"), appeal from the judgment
of the circuit court sustaining the demurrer filed by J. Harman
Saunders ("Saunders") and J. Harman Saunders Construction, Inc.
("Saunders Construction"). Because we find the circuit court
erred in ruling that the alleged defamatory statement
constituted an expression of opinion, we will reverse the
circuit court's judgment.
I. BACKGROUND
Since this case was decided below on demurrer, we accept as
true the well-pleaded facts sets forth in the amended complaint
and all inferences fairly drawn therefrom. Hawthorn v. City of
Richmond, 253 Va. 283, 284-85, 484 S.E.2d 603, 604 (1997); Russo
v. White, 241 Va. 23, 24, 400 S.E.2d 160, 161 (1991).
Shearin, acting through its agent, Tharpe, contracted with
the United States government to perform excavation work at Fort
Pickett. During the excavation, Shearin encountered rock and
entered into a change order for compensation above the amount of
the original contract price upon the basis that encountering the
rock was a changed condition. Subsequently, Shearin, also
acting through Tharpe, contracted with the Southside Regional
Service Authority (the Authority) to perform excavation work at
Butcher's Creek Landfill in Mecklenburg County. A dispute arose
between Shearin and the Authority after Shearin encountered rock
during the excavation and requested a change order for
compensation above the original contract price.
Saunders, owner and operator of Saunders Construction, a
business competitor of Shearin, allegedly made the following
statement to Wayne Carter, the Mecklenburg County Administrator
and the Authority's Executive Director: "Tharpe told me that
Tharpe was going to screw the Authority like he did Fort
Pickett." This statement was allegedly made again by Saunders
to Carter and another named individual, then repeated and
republished by and to the Authority, people of the community,
and the news media. Tharpe and Shearin assert that Tharpe never
told Saunders "[he] was going to screw the Authority like he did
Fort Pickett" and, therefore, such statement is false. They
further assert that Saunders made the statement knowing it to be
false, or in reckless disregard of whether it was false, because
of personal spite, hatred, ill will, or a desire to hurt the
business reputation of Tharpe and Shearin.
2
Tharpe and Shearin contend that the "clear meaning" of the
statement as understood by the Authority, the community, and the
general public "was that Tharpe, acting as agent for Shearin,
intended to screw 1 the Authority by making a[n] unjustified
change order request as a result of encountering rock on the
Authority Project" and "that Tharpe, acting as agent for
Shearin, previously screwed the United States, who contracted
for the Fort Pickett Project, by making an unjustified change
order request as a result of encountering rock on the Fort
Pickett Project." Thus, Tharpe and Shearin contend that the
words in the statement "in their normal usage" were understood
by the Authority, the community, and the general public "to harm
Tharpe's and Shearin's business reputation."
It is further alleged that as a "direct and proximate
cause" of the statement, the Authority filed suit alleging fraud
against Tharpe and Shearin causing them to incur "significant
1
Tharpe and Shearin contend that the "the word 'screw' as
used in the [s]tatement . . . means to unfairly take advantage
of another or to act dishonestly in the transaction of business"
and that "the word 'screw' was so understood by the Authority,
people of the community, and the general public." Cf. Webster's
Third New International Dictionary 2041 (1993)("to oppress or
dispossess by unreasonable or extortionate actions or
conditions" or "to extract by pressure of threat"); Oxford
English Dictionary (2d ed. 1989, rev. online ed. Dec. 2012),
http://www.oed.com/view/entry/173460 (last visited Feb. 6,
2013)("[t]o defraud (a person, esp[ecially] of money), to cheat;
to deceive").
3
attorneys' fees." Additionally, Shearin has not been invited to
"submit bids on several large construction projects," "the
business reputations of Tharpe and Shearin have been severely
and permanently damaged," and Tharpe and Shearin "have been and
will continue to be financially harmed."
In this present defamation suit filed by Tharpe and
Shearin, Saunders and Saunders Construction demurred to the
amended complaint on the ground that the statement allegedly
made by Saunders did not contain a provably false statement, but
was an expression of opinion. 2 The circuit court agreed,
explaining that "[w]hether the quoted statement was made or not
is certainly factual subject to being disproved," but "the basis
for the claim of defamation is not dependent upon that fact."
The circuit court reasoned that the claim of defamation is
dependent on the ability to prove that Tharpe was going to
"screw" the Authority and that Tharpe had "screwed" Fort
Pickett. According to the circuit court, because what is meant
by the word "screw" is dependent upon the speaker's viewpoint,
the alleged defamatory statement was an expression of opinion.
2
Although the demurrer contained several alternative
grounds for dismissal, the only issue addressed by the circuit
court, which it found dispositive, was whether the alleged
defamatory statement was an expression of opinion. Accordingly,
this is the only issue before us on appeal.
4
II. ANALYSIS
On appeal, Tharpe and Shearin argue that the circuit court
erred in holding that the alleged defamatory statement by
Saunders that "Tharpe told me that Tharpe was going to screw the
Authority like he did Fort Pickett" was an expression of
opinion.
The elements of defamation are "(1) publication of (2) an
actionable statement with (3) the requisite intent." Jordan v.
Kollman, 269 Va. 569, 575, 612 S.E.2d 203, 206 (2005). "To be
actionable, the statement must be both false and defamatory."
Id. "Causes of action for defamation have their basis in state
common law but are subject to principles of freedom of speech
arising under the First Amendment to the United States
Constitution and Article I, Section 12 of the Constitution of
Virginia." Yeagle v. Collegiate Times, 255 Va. 293, 295, 497
S.E.2d 136, 137 (1998).
The First Amendment to the Federal Constitution
and article 1, section 12 of the Constitution of
Virginia protect the right of the people to
teach, preach, write, or speak any such opinion,
however ill-founded, without inhibition by
actions for libel and slander. "[E]rror of
opinion may be tolerated where reason is left
free to combat it." Thomas Jefferson's First
Inaugural Address (1801). "However pernicious an
opinion may see[m], we depend for its correction
not on the conscience of judges and juries but on
the competition of other ideas." Gertz v. Robert
Welch, Inc., 418 U.S. 323, 339-40 (1974).
5
Chaves v. Johnson, 230 Va. 112, 119, 335 S.E.2d 97, 102 (1985).
"But there is no constitutional value in false statements of
fact." Gertz, 418 U.S. at 340.
Accordingly, "pure expressions of opinion" are
constitutionally protected and "cannot form the basis of a
defamation action." Williams v. Garraghty, 249 Va. 224, 233,
455 S.E.2d 209, 215 (1995). "Statements that are relative in
nature and depend largely upon the speaker's viewpoint are
expressions of opinion." Fuste v. Riverside Healthcare Ass'n,
265 Va. 127, 132, 575 S.E.2d 858, 861 (2003). Furthermore,
"[s]peech that does not contain a provably false factual
connotation" is generally considered " 'pure expression[] of
opinion.' " WJLA-TV v. Levin, 264 Va. 140, 156, 564 S.E.2d 383,
392 (2002). 3
"Whether an alleged defamatory statement is one of fact or
of opinion is a question of law to be resolved by the trial
court." Id. at 156-57, 564 S.E.2d at 392; Tronfeld v.
3
"While pure expressions of opinion are not actionable,
'[f]actual statements made to support or justify an opinion
. . . can form the basis of an action for defamation.' "
Raytheon Tech. Servs. Co. v. Hyland, 273 Va. 292, 303, 641
S.E.2d 84, 90 (2007) (quoting Williams, 249 Va. at 233, 455
S.E.2d at 215). Because "expressions of 'opinion' may often
imply an assertion of objective fact," the United States Supreme
Court has refused to "create a wholesale defamation exemption
for anything that might be labeled 'opinion.' " Milkovich v.
Lorain Journal Co., 497 U.S. 1, 18 (1990); see also Raytheon,
273 Va. at 303, 641 S.E.2d at 91.
6
Nationwide Mut. Ins. Co., 272 Va. 709, 714, 636 S.E.2d 447, 450
(2006); Fuste, 265 Va. at 132-33, 575 S.E.2d at 861. Because
this determination is an issue of law, we conduct a de novo
review of the statement in question. Raytheon, 273 Va. at 304,
641 S.E.2d at 91. In conducting our review, we do not determine
whether the alleged defamatory statement is true or false, but
whether it is capable of being proved true or false. Id.
Applying these principles, Saunders' statement that "Tharpe
told me that Tharpe was going to screw the Authority like he did
Fort Pickett" is indisputably capable of being proven true or
false. The statement can be disproved by evidence, if adduced,
that Tharpe did not tell Saunders he "was going to screw the
Authority like he did Fort Pickett." It is neither an
expression of Saunders' opinion that Tharpe made this statement
to Saunders, nor is it dependent on Saunders' viewpoint. See,
e.g., Tronfeld, 272 Va. at 715-16, 636 S.E.2d at 451. 4 For that
reason, the constitutional right to speak opinion "without
inhibition by actions for libel and slander" is not implicated
4
To illustrate this point further, if it were alleged
instead that Saunders said "Tharpe is going to screw the
Authority like he did Fort Pickett," one might argue that such a
statement by Saunders is an expression of Saunders' opinion or
dependent on his viewpoint. In contrast, the allegation in this
case is that Saunders made a false statement of fact – that
Tharpe said he was going to "screw" the Authority like he did
Fort Pickett.
7
since it is Saunders' alleged false statement of fact, not any
expression of his opinion, that subjects him to potential
liability. Chaves, 230 Va. at 119, 335 S.E.2d at 102.
Although the circuit court recognized that "[w]hether the
quoted statement was made or not is certainly factual subject to
being disproved," it nevertheless required that the statement
attributed to Tharpe by Saunders also contain a provably false
connotation. However, Tharpe's and Shearin's claims of
defamation are based solely on the false attribution to Tharpe
of the quoted statement, which he denies having spoken, not the
falsity of the assertion contained within that alleged
statement.
[R]egardless of the truth or falsity of the
factual matters asserted within the quoted
statement, [a false] attribution may result in
injury to reputation because the manner of
expression or even the fact that the statement
was made indicates a negative personal trait or
an attitude the speaker does not hold.
Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 511 (1991)
(emphasis added). 5 The gravamen of the amended complaint is that
5
In fact, "[a] self-condemnatory quotation may carry
more force than criticism by another." Masson, 501 U.S.
at 512. As the Supreme Court noted,
[i]t is against self-interest to admit one's own
criminal liability, arrogance, or lack of integrity,
and so all the more easy to credit when it happens.
This principle underlies the elemental rule of
evidence which permits the introduction of
8
Saunders allegedly attributed a fabricated quotation to Tharpe
that, as a quotation, caused injury to the reputations of Tharpe
and Shearin. Such allegations give rise to a claim of
defamation regardless of the truth or falsity of the matters
asserted in the statement allegedly attributed to Tharpe or
whether such assertions are fact or opinion. Id. at 511-12
(where a public-figure psychoanalyst was falsely quoted as
stating he was "the greatest analyst who ever lived," the Court
explained that "one need not determine whether [he] is or is not
the greatest analyst who ever lived in order to determine that
it might have injured his reputation to be reported as having so
proclaimed").
Although we have not previously addressed fabricated
quotations, other jurisdictions have recognized that quotations
falsely attributed to a plaintiff are actionable as defamation
regardless of the truth or falsity of the substance of the
quotation when it injures the plaintiff's reputation. See,
e.g., Levesque v. Doocy, 560 F.3d 82, 89-90 (1st Cir. 2009)
(false attribution of comments to plaintiff encouraged listeners
statements against interest, despite their hearsay
character, because we assume "that persons do not
make statements which are damaging to themselves
unless satisfied for good reason that they are
true."
Id. at 512 (quoting Advisory Committee's Notes on Fed.
Rule Evid. 804(b)(3), 28 U.S.C. App., p. 789).
9
to form negative conclusions about plaintiff tending to harm his
reputation); Kerby v. Hal Roach Studios, Inc., 127 P.2d 577, 581
(Cal. Dist. Ct. App. 1942) (defamation may be accomplished by
falsely putting words into the mouth of the person defamed and
imputing to such person a willingness to use them "where the
mere fact of having uttered or used the words" would produce
harm to plaintiff's reputation); Selleck v. Globe Int’l, Inc.,
212 Cal. Rptr. 838, 845 (Cal. Ct. App. 1985) (article containing
both direct and indirect quotations of statements made by
plaintiff imputing a betrayal of his son "[did] not merely
express defendant's opinion that plaintiff made statements about
his son" but "assert[ed] as a fact that plaintiff made the
statements”); Schmalenberg v. Tacoma News, Inc., 943 P.2d 350,
357 (Wash. Ct. App. 1997) (a statement may be provably false
because it is falsely attributed to a person who did not make it
even if the matter asserted in the statement is true). 6
6
In Schmalenberg, the court recognized at least three ways
in which a statement may be provably false: because it falsely
represents the state of mind of the person making it, because it
is falsely attributed to a person who did not make it, or
because the assertion made within the statement is false.
Thus, if Doe says, "I think Smith said that Jones
lied about the accident," the statement may be false
(a) because Doe does not really think that Smith
said Jones lied about the accident; (b) because
Smith did not say that Jones lied about the
accident, even though Jones did; or (c) because
10
Similarly, Tharpe's and Shearin's claims are not dependent
on the ability to prove that Tharpe was going to "screw" the
Authority and that Tharpe had "screwed" Fort Pickett. It is
irrelevant to their claims whether these assertions are capable
of being proven false. Rather, Saunders' statement of fact –
"Tharpe told me that Tharpe was going to screw the Authority
like he did Fort Pickett" – if believed by the hearer as coming
from Tharpe, by its very nature is alleged to have defamed
Tharpe and Shearin. Therefore, regardless of the truth or
falsity of the matters asserted in the quote attributed to
Tharpe, Saunders' statement is an actionable statement of fact.
III. CONCLUSION
In sum, we hold the circuit court erred in ruling the
alleged defamatory statement was an expression of opinion and in
sustaining the demurrer on that ground. Accordingly, we will
reverse the circuit court's judgment and remand for further
proceedings.
Reversed and remanded.
Jones did not lie about the way in which the
accident happened.
Schmalenberg, 943 P.2d at 357.
11