Jackson v. Hartig

Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons,
and Agee, JJ., and Russell, S.J.

TIMMY JACKSON

v. Record No. 061505 OPINION BY JUSTICE CYNTHIA D. KINSER
June 8, 2007
DENNIS A. HARTIG, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Junius P. Fulton, III, Judge

This appeal involves an action for defamation brought

by an unsuccessful candidate for election to the Virginia

House of Delegates against the author and publisher of a

newspaper editorial endorsing the candidate’s opponent.

Because we conclude that there are no material facts

genuinely in dispute and that the evidence in the record

would not permit a reasonable fact finder to conclude, by

clear and convincing evidence, that the defendants acted

with actual malice, we will affirm the judgment of the

circuit court granting summary judgment for the defendants

and dismissing the defamation action with prejudice.

FACTS AND PROCEEDINGS

Timmy Jackson was elected to a four-year term on the

City of Virginia Beach School Board (the School Board) that

began in July 1994. At that time, the outgoing School

Board had already approved a budget for the 1994–1995

school year. In 1995, the School Board was notified that
it was operating at a deficit, prompting several members of

the School Board to resign. A special grand jury convened

to investigate the causes of the budget deficit, and on

February 26, 1996, it issued a report recommending that the

remaining members of the School Board who had served during

the 1994–1995 school year resign or face criminal

prosecution for violating Code § 22.1-91.1 All School Board

members except Jackson and Ferdinand V. Tolentino resigned.

Jackson and Tolentino were each subsequently indicted for

the misdemeanor charge of malfeasance related to the School

Board budget deficit during the 1994–1995 school year, but

a jury acquitted both on August 14, 1996. Jackson

continued to serve on the School Board until the end of his

term.

In 1998, Jackson ran for election to a seat on the

Virginia Beach City Council. On May 3, 1998, the

Virginian-Pilot, a newspaper published by Landmark

1
Code § 22.1-91 provides:

No school board shall expend or contract to expend, in
any fiscal year, any sum of money in excess of the funds
available for school purposes for that fiscal year without
the consent of the governing body or bodies appropriating
funds to the school board. Any member of a school board or
any division superintendent or other school officer
violating, causing to be violated or voting to violate any
provision of this section shall be guilty of malfeasance in
office.

2
Communications, Inc. (Landmark), printed an editorial

endorsing Jackson’s candidacy for city council, stating:

Jackson has achieved much on the School Board and
promises to be a strong voice for education on
council. This former police sergeant has shown
himself to be a man of integrity who refused to
allow himself to be bullied off the School Board
by the commonwealth’s attorney two years ago.
Jackson insisted he was blameless in the matter
of the school system’s $12 million deficit –
caused by the then-school superintendent and his
deputies. A jury agreed, and Jackson was
exonerated.

Despite the Virginian-Pilot’s endorsement, Jackson lost the

election for city council.

Jackson made another bid for public office in 2003,

this time seeking to represent the twenty-first House of

Delegates district.2 On November 1, 2003, three days prior

to the election, the Virginian-Pilot published an editorial

written by Dennis A. Hartig that contained the following

statements:

[W]e have deep misgivings about Jackson’s
qualifications . . . .

Jackson, a former police officer and Republican,
was honored to be among the first citizens
elected to the Virginia Beach School Board. It
turned out badly.

It was on his watch that the schools went
millions of dollars in the red, a disaster that

2
All of the twenty-first House of Delegates district
is located within the City of Virginia Beach. Code § 24.2-
304.01.

3
 took years to overcome. Jackson was indicted for
malfeasance, but was exonerated, then resigned.

Jackson has given us no reason why voters should
forgive this blot on his record. Now he wants
voters to trust him to oversee a state budget 200
times as large as the School Board’s. That’s
asking too much.

On the morning of the election, the Virginian-Pilot, at

Jackson’s request, printed a correction of its misstatement

that Jackson had resigned his seat on the School Board.

Jackson lost the election.

Jackson subsequently filed a motion for judgment

against Hartig and Landmark in the Circuit Court of the

City of Portsmouth, alleging that Hartig and Landmark

published false and defamatory statements about him in the

Virginian-Pilot’s November 1, 2003 editorial. Jackson

claimed that Hartig and Landmark either knew that these

statements were false at the time of their publication or

printed them with reckless disregard for whether they were

true or false. Jackson premised this allegation, in part,

on their variance from the supposedly “factually accurate”

statements appearing in the Virginian-Pilot’s May 3, 1998

editorial. Jackson further alleged that Hartig and

Landmark knew that the portion of the November 1, 2003

editorial stating, “It was on his watch that the schools

went millions of dollars in the red” was false because the

4
defendants knew not only that the 1994-1995 School Board

budget had already been approved when Jackson began his

tenure on the School Board, but also that the School Board

did not operate at a deficit during any of the years in

which Jackson voted to approve the budget. Jackson relied

on these same alleged facts to assert that Hartig and

Landmark knew their statement characterizing the deficit as

“a disaster that took years to overcome” was false.

Jackson also claimed that Hartig and Landmark knew that

Jackson had not resigned from the School Board, but had

publicly refused to do so. Finally, the November 1, 2003

editorial, according to Jackson, accused him of criminal

activity even though Hartig and Landmark knew that a jury

had found Jackson not guilty of the malfeasance charge.

Along with a demurrer and grounds of defense, Hartig

and Landmark filed a motion to transfer venue to the

Circuit Court of the City of Virginia Beach. The Circuit

Court of the City of Portsmouth granted the defendants’

motion, but it gave Jackson the option of having the case

transferred to either the Circuit Court of the City of

Virginia Beach or the Circuit Court of the City of Norfolk,

where Landmark’s corporate offices were located. Without

waiving his objection to the circuit court’s decision

granting the motion to transfer venue, Jackson chose the

5
Circuit Court of the City of Norfolk. Following the

transfer of the case, that circuit court overruled the

defendants’ demurrer, and the parties proceeded with

discovery.

Hartig and Landmark filed a motion for summary

judgment, along with several exhibits, including a copy of

the special grand jury’s report and certain discovery

responses. In particular, the circuit court had before it

Jackson’s answer to an interrogatory propounded to him by

Hartig and Landmark, asking Jackson to “[i]dentify and

describe in detail and with particularity any evidence you

contend establishes that Mr. Hartig published the alleged

defamatory statements with constitutional actual malice.”

Jackson responded:

The editorial board failed to even review
their own newspaper files concerning . . . my
record, the trial and my exoneration, my
continued service until the end of term (1994-
1998), and their very own endorsement of me in
May 1998, publishing factually accurate
information stating the direct opposite of
content in the November 1, 2003 editorial. Such
reckless disregard for the truth or the
Defendants’ knowledge of the falsity of the
defamatory content in the November 1, 2003
article constitutes actual malice. Moreover Mr.
Hartig told me in a phone conversation on
November 4, 2003 that I had to pay for the
deficit.

Hartig and Landmark also included as an exhibit Hartig’s

response to Jackson’s requests for admission, in which

6
Hartig admitted that he “had read the substantive

provisions of the [special] [g]rand [j]ury [r]eport before

the May 3, 1998 editorial was published.”

Additionally, in their memorandum in support of the

motion for summary judgment, Hartig and Landmark admitted

that Hartig did not review either the Virginian-Pilot’s

files or its May 3, 1998 endorsement of Jackson for city

council before writing the November 1, 2003 editorial. The

defendants represented that Hartig was the managing editor

of the Virginian-Pilot’s “mainsheet” in 1998 and therefore,

he neither wrote nor approved the newspaper’s editorial

endorsing Jackson’s candidacy that year. Though Hartig and

Landmark acknowledged that Hartig knew Jackson had been

acquitted of the malfeasance charge brought against him in

1996, they maintained that such knowledge did not mean that

Hartig knew that Jackson was not responsible for the budget

deficit.

In a letter opinion, the circuit court summarized the

contents of the November 1, 2003 editorial, concluding that

it contained “several statements of fact which are not in

dispute, statements of opinion which suggest that in spite

of the jury verdict, Jackson was responsible for the

[S]chool [B]oard budget deficit, and one factually false

statement that Jackson eventually resigned his position

7
from the . . . School Board.” The court concluded that the

statement characterizing the budget deficit as a “disaster

that took years to overcome” was an opinion, and thus, not

subject to an action for defamation. The court further

concluded that, although the statement that Jackson

resigned from the School Board after being exonerated at

trial was “false, [it did] not disparage him.” Finally,

even though the circuit court believed that the November 1,

2003 editorial could be read as insinuating that Jackson

had committed a crime, the court concluded that Jackson’s

acquittal on the charge of malfeasance was insufficient, by

itself, to establish that the defendants had acted with

actual malice. Thus, the circuit court sustained the

defendants’ motion for summary judgment.

Jackson moved the circuit court to reconsider its

ruling, submitting as exhibits deposition testimony by

Jackson, Hartig, and Jackson’s opponent in the 2003

election,3 as well as copies of Virginian-Pilot news stories

3
The record does not disclose any agreement between
the parties allowing the use of depositions in the circuit
court’s consideration of Hartig and Landmark’s motion for
summary judgment. Indeed, Jackson specifically noted an
objection to such use of depositions on the circuit court’s
final order dismissing his motion for judgment with
prejudice. In the absence of such an agreement between the
parties, deposition testimony was not properly before the
circuit court and could not be used in considering whether
to sustain a motion for summary judgment. Code § 8.01-420;

8
covering Jackson’s trial in 1996. Jackson also included

notes compiled by Hartig and another member of the

Virginian-Pilot editorial board during an interview with

Jackson prior to the publication of the November 1, 2003

editorial. The notes purportedly indicated Jackson served

a full, four-year term on the School Board.

Hartig and Landmark filed a memorandum in opposition

to Jackson’s motion to reconsider, attaching as an exhibit

interrogatory responses wherein they detailed portions of

the special grand jury report Hartig used in forming his

opinion that Jackson, as a School Board member, bore some

responsibility for the budget deficit. The defendants

further stated in the interrogatory answer that, while

preparing the November 1, 2003 editorial, Hartig reviewed

several articles published in the Virginia-Pilot concerning

the special grand jury report, which, according to Hartig,

quoted the special grand jury’s conclusions that

(a) the School Board did not regard financial
oversight as part of its responsibilities, (b)
the School Board and the superintendent bore the
ultimate legal responsibility for the deficit,
(c) the overwhelming evidence was that School
Board members, including [Jackson], committed
malfeasance in office, and . . . (e) the School
Board members, including [Jackson], should be
indicted for malfeasance if they refused to
resign.

Rule 3:20; Gay v. Norfolk & W. Ry. Co., 253 Va. 212, 214,
483 S.E.2d 216, 218 (1997).

9
 The circuit court denied the motion to reconsider and

dismissed Jackson’s motion for judgment with prejudice. We

awarded Jackson an appeal on two assignments of error.

First, Jackson assigns error to the decision of the Circuit

Court of the City of Norfolk to grant summary judgment for

the defendants. Second, he challenges the ruling of the

Circuit Court of the City of Portsmouth granting the change

of venue.

ANALYSIS

In recognition of the importance of safeguarding an

individual’s basic entitlement to the uninterrupted

enjoyment of his or her reputation, Virginia law allows a

person who has been the subject of libel or slander to

bring a cause of action for defamation. Tronfeld v.

Nationwide Mut. Ins. Co., 272 Va. 709, 713, 636 S.E.2d 447,

449 (2006). To prevail on a claim for libel such as the

one asserted by Jackson, a plaintiff in Virginia must

establish the publication of a false and defamatory

statement of fact with the requisite intent. Jordan v.

Kollman, 269 Va. 569, 575, 612 S.E.2d 203, 206 (2005).

Because the right to seek legal redress for another’s

defamatory statements is constrained by the protections of

free speech established in the First Amendment to the

10
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 intent

required to prove defamation depends, in part, on whether a

plaintiff is a public or private figure. Jordan, 269 Va.

at 576, 612 S.E.2d at 207.

In that regard, the Supreme Court of the United

States, in New York Times Co. v. Sullivan, 376 U.S. 254

(1964), held that the federal constitution’s guarantees of

the rights of the public and the press to engage in

uninhibited debate concerning public issues required the

formulation of a rule prohibiting a public official from

recovering damages for defamatory falsehoods related to his

official conduct except upon proof that the defamatory

statement was made “with ‘actual malice’ – that is, with

knowledge that it was false or with reckless disregard of

whether it was false or not.” Id. at 279–80. The Supreme

Court has since required proof of actual malice in cases

where a political candidate asserts a claim for damages

allegedly caused by defamatory statements touching on his

fitness for office. Monitor Patriot Co. v. Roy, 401 U.S.

265, 271–72 (1971). As Jackson argues on brief, the

obvious import of the November 1, 2003 editorial was to

persuade voters that he had been “fiscally irresponsible

11
while serving on the School Board,” and that they,

therefore, should not elect him to another position of

stewardship over public funds. Therefore, since the

alleged defamatory statements clearly spoke to Jackson’s

qualifications for elective office, this case falls

squarely within the New York Times framework. See Ocala

Star-Banner Co. v. Damron, 401 U.S. 295, 300–01 (1971).

In order to establish actual malice, a plaintiff “must

demonstrate by clear and convincing evidence that the

defendant realized that his statement was false or that he

subjectively entertained serious doubt as to the truth of

his statement.” Jordan, 269 Va. at 577, 612 S.E.2d at 207

(citing Bose Corp. v. Consumers Union of the United States,

Inc., 466 U.S. 485, 511 n.30 (1984)). In the context of

this case, Jackson’s defamation claim can survive summary

judgment only if the pleadings, orders, admissions, and

answers to interrogatories reveal a genuine dispute of

material facts that would allow a reasonable fact finder to

conclude Hartig and Landmark published the November 1, 2003

editorial either knowing that the statements contained

therein were false or entertaining serious doubt that they

were true. Rules 3:20, 4:8(e); Klaiber v. Freemason

Assocs., Inc., 266 Va. 478, 484, 587 S.E.2d 555, 558

(2003). In reviewing the circuit court’s decision to

12
sustain the defendants’ motion for summary judgment, we

review those specific portions of the record in the light

most favorable to the nonmoving party, Jackson. Id. at

481–82, 587 S.E.2d at 556. We also accept “as true ‘those

inferences from the facts that are most favorable to the

nonmoving party, unless the inferences are forced,

strained, or contrary to reason.’ ” Id. at 484, 587 S.E.2d

at 558 (quoting Dudas v. Glenwood Golf Club, Inc., 261 Va.

133, 136, 540 S.E.2d 129, 130–31 (2001)).

As evidence of actual malice, Jackson now points to

the facts in the record detailing the Virginian-Pilot’s

coverage of the events surrounding the School Board’s

budget deficit, Jackson’s refusal to resign, his

indictment, and his ultimate acquittal on the malfeasance

charge. According to Jackson, these news stories, as well

as Hartig’s prior position as managing editor of the

newspaper’s mainsheet and the Virginian-Pilot’s May 3, 1998

endorsement of his candidacy for city council, demonstrate

that Hartig knew Jackson had not committed malfeasance in

office and that he had not resigned. Jackson also relies

on the interview notes generated by Hartig and another

editorial board member that purportedly showed Jackson

served a full, four-year term on the School Board.

Additionally, Jackson directs our attention to Hartig’s

13
statement in a telephone conversation with Jackson on

November 4, 2003 that Jackson “had to pay for the deficit.”

Viewing these facts in the light most favorable to

Jackson, we conclude that they are insufficient as a matter

of law to establish clear and convincing evidence that

Hartig and Landmark published the statements in the

November 1, 2003 editorial with actual malice. The mere

presence of news stories in a newspaper’s files containing

information that contradicts an allegedly defamatory

statement by the news organization is insufficient to

establish actual malice. New York Times, 376 U.S. at 287.

Furthermore, a media defendant in a defamation claim

subject to the New York Times standard cannot be said to

have acted with actual malice on account of its failure to

investigate the accuracy of an allegedly defamatory

statement before publishing it unless the defendant first

“had a high degree of awareness of [its] probable falsity.”

Shenandoah Publ’g House, Inc. v. Gunter, 245 Va. 320, 324,

427 S.E.2d 370, 372 (1993); see also St. Amant v. Thompson,

390 U.S. 727, 731 (1968) (“[R]eckless conduct is not

measured by whether a reasonably prudent man would have

published, or would have investigated before publishing.

There must be sufficient evidence to permit the conclusion

that the defendant in fact entertained serious doubts as to

14
the truth of his publication.”). Thus, in 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. See Harte-

Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688

(1989) (citing Garrison v. Louisiana, 379 U.S. 64, 74

(1964)).

Acknowledging that a failure to investigate does not

alone support a finding of actual malice, Jackson contends,

nevertheless, that Hartig purposefully avoided the truth

and thereby published the November 1, 2003 editorial with

actual malice. See id. at 692 (“Although failure to

investigate will not alone support a finding of actual

malice, . . . the purposeful avoidance of the truth is in a

different category.”). We disagree. In particular,

neither the incorrect statement that Jackson resigned from

the School Board nor his acquittal establish that Hartig

entertained any serious doubt about the truth of his

statements asserting that Jackson had a “blot on his

record” because he bore some degree of responsibility for

the School Board’s disastrous budget deficit even though he

was acquitted of the criminal charge of malfeasance. That

the Commonwealth failed to obtain a conviction against

15
Jackson for malfeasance in office does not, of its own

force, impeach the reliability of the special grand jury

report’s statement that Jackson admitted under oath that he

had “some level of responsibility for spending millions of

dollars of public money they did not have.” Furthermore,

the evidence in the record, including the interview notes,

does not establish that Hartig published the statement that

Jackson resigned his seat on the School Board knowing the

statement was false. “[T]o insure the ascertainment and

publication of the truth about public affairs, it is

essential that the First Amendment protect some erroneous

publications as well as true ones.” St. Amant, 390 U.S. at

732.

Additionally, Hartig stated in interrogatory answers

that, before publishing the November 1, 2003 editorial, he

had reviewed articles published by the Virginian-Pilot that

quoted, among other things, the special grand jury’s

conclusions that “the School Board did not regard financial

oversight as part of its responsibilities” and that “the

School Board and the superintendent bore the ultimate legal

responsibility for the deficit.” As the circuit court

correctly noted, without a fact in the record that would

show Hartig had any reason to question the accuracy of the

special grand jury’s recitation of facts, such as evidence

16
showing he knew that witnesses before the special grand

jury had perjured themselves, there is no basis for

concluding that Hartig and Landmark had any serious doubt

about the truth of their assertion that Jackson, despite

his acquittal on the malfeasance charge, had some level of

responsibility for the School Board’s budget deficit. See

St. Amant, 390 U.S. at 731 (evidence must show that the

defendant in fact had serious doubts about the truth of his

publication).

Equally unavailing is Jackson’s reference to Hartig’s

alleged comment to him, saying Jackson “had to pay for the

deficit.” This fact does not speak to Hartig’s state of

mind at the time he published the editorial three days

earlier. Moreover, this statement, at most, suggests that

Hartig harbored some kind of ill will toward Jackson.

While “it cannot be said that evidence concerning motive or

care never bears any relation to the actual malice

inquiry,” proof of a media defendant’s ill will toward a

public figure plaintiff is, without more, insufficient to

establish knowledge of falsity or reckless disregard for

the truth. Harte-Hanks, 491 U.S. at 666, 668.

When, as in this case, allegedly defamatory statements

discuss a candidate’s fitness for elective office,

17
 [t]he importance to the state and to society of
such discussions is so vast, and the advantages
derived are so great, that they more than
counterbalance the inconvenience of private
persons whose conduct may be involved, and
occasional injury to the reputations of
individuals must yield to the public welfare,
although at times such injury may be great.

Coleman v. MacLennan, 98 P. 281, 286 (Kan. 1908). “[T]here

can be no doubt that discussion of public issues and debate

on the qualifications of candidates for public office are

integral to the operation of our system of government and

are entitled to the broadest protection the First Amendment

can afford.” Mahan v. National Conservative Political

Action Comm., 227 Va. 330, 336, 315 S.E.2d 829, 833 (1984).

CONCLUSION

We conclude that the circuit court properly entered

summary judgment for Hartig and Landmark. Summary judgment

is appropriate when “no material facts are genuinely in

dispute.” Klaiber, 266 Va. at 484, 587 S.E.2d at 558; see

also Carwile v. Richmond Newspapers, Inc., 196 Va. 1, 5, 82

S.E.2d 588, 590 (1954) (summary judgment is appropriate

“when it clearly appears that one of the parties is

entitled to judgment within the framework of the case”).

Our review of the record on the motion for summary judgment

does not disclose any genuinely disputed material fact that

would permit a reasonable fact finder to conclude that the

18
defendants published, either with actual knowledge of

falsity or subjective serious doubts as to truth, the

statements in Hartig’s November 1, 2003 editorial asserting

that Jackson, as a former School Board member, bore some

degree of responsibility for the School Board’s budget

deficit despite his acquittal on the malfeasance charge.

The absence of such a fact is fatal to Jackson’s attempt to

meet his constitutional burden of establishing that Hartig

and Landmark published the allegedly defamatory statements

with actual malice. Accordingly, we will affirm the

circuit court’s judgment granting summary judgment in favor

of Hartig and Landmark and dismissing Jackson’s motion for

judgment with prejudice.4

Affirmed.

SENIOR JUSTICE RUSSELL, with whom JUSTICE LEMONS joins,
dissenting.

The majority opinion expresses well the law of libel

that applies to this case. I part company only with the

majority’s conclusion that the case was a proper subject

for summary judgment. After setting forth the applicable

law of libel, the majority opinion engages in a detailed

4
In light of our decision, it is not necessary to
address Jackson’s assignment of error challenging the
circuit court’s decision to transfer venue. Venue is

19
analysis of the facts, drawing inferences from them and

reaching conclusions based upon them. In my view, the

majority thereby invades the province of a jury, as the

trial court had done.

As the majority opinion states, Jackson, as a

candidate for public office, had the burden of proving by

clear and convincing evidence that the defendant published

a defamatory falsehood touching upon his fitness for office

that was motivated by “New York Times malice.” That term

is correctly defined as a statement of fact made “with

knowledge that it was false or with reckless disregard of

whether it was false or not.” There was an abundance of

evidence in the record from which a jury could have

concluded that the defendants' publication met that

standard. First, the defendants’ statement that Jackson

had resigned his office (impliedly in disgrace) was

demonstrably false. Second, the defendants knew of its

falsity when the statement was made. The newspaper had

actually published an editorial five years earlier

commending Jackson as a “man of integrity” for his refusal

to allow himself to be “bullied off the School Board by the

commonwealth’s attorney.” Jackson was prepared to offer in

concerned with the appropriate “place of trial,” Code
§ 8.01-258, not the viability of a cause of action.

20
evidence handwritten notes taken by Hartig and another

member of the paper’s editorial board during an interview

just prior to the defamatory publication showing that they

knew that Jackson had served his full four-year term on the

school board. From this evidence alone, a jury could have

found that the defendants, when making the false

statements, had a “high degree of subjective awareness of

their probable falsity.” Nothing more is required to meet

the test of “New York Times malice.”

The issue of the defendants’ motivation and intent is

one of fact for resolution by the jury, not one of law for

determination by the court.

It is a court’s duty to decide as a matter
of law whether a communication is privileged.
But, the question whether a defendant was
actuated by malice, and has abused the occasion
and exceeded the privilege, is a question of fact
for a jury.

Fuste v. Riverside Healthcare Ass'n, 265 Va. 127, 135, 575

S.E.2d 858, 863 (2003) (quoting Alexandria Gazette Corp. v.

West, 198 Va. 154, 160, 93 S.E.2d 274, 279-80 (1956)

(internal quotation marks omitted)).

The general rule, which has been repeatedly
stated by this court, is that . . . the question
of whether or not the defendant was actuated by
malice and . . . exceeded his privilege [is a
question] of fact for the jury.

Alexandria Gazette, 198 Va. at 160, 93 S.E.2d at 279.

21
 Because the issue of malice depends entirely upon a

determination of the defendant’s motive and intent at the

time of making an allegedly defamatory statement, summary

judgment is singularly inappropriate.

[S]ummary judgment is seldom appropriate in
cases wherein particular states of mind are
decisive as elements of a claim or defense. This
reflects a general perception that whether as a
matter of fact any particular state of mind
exists can seldom be considered to be beyond
reasonable dispute because this depends entirely
upon the conflicting inferences to be drawn from
evidence so likely to be circumstantial or, if
direct, self-serving.

Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th

Cir. 1979).

Here, the defendants sought to justify their

defamatory statements in 2003 by reliance on a report filed

by a special grand jury in 1996. The trial court found as

a fact that this reliance was justified, notwithstanding

all the events of which the defendants were aware that

occurred during the next seven years, and the majority

opinion agrees. The majority opinion goes on to weigh the

evidence upon which Jackson relied to establish the

defendants’ knowledge of the falsity of their statements

and their motivation in making them. A striking

illustration of this appears where the majority opinion,

after reviewing Jackson’s evidence in this regard,

22
concludes: “Viewing these facts in the light most

favorable to Jackson, we conclude that they are

insufficient as a matter of law to establish clear and

convincing evidence that Hartig and Landmark published the

statements . . . with actual malice.” It was entirely

within the province of a properly instructed jury, not of

the court, to weigh that evidence and determine what had

been proved by clear and convincing evidence. The majority

opinion also flatly states: “Furthermore, the evidence in

the record does not establish that Hartig knew, at the time

he published the incorrect statement, . . . that the

statement was untrue.” That weighing of the facts ignores

Hartig’s notes taken at his interview with Jackson just

before the statements were published, which showed the

exact opposite. A jury, had it been permitted to weigh the

evidence, might have reached a very different conclusion.

Summary judgment is a drastic remedy, available only

where there is no material fact genuinely in dispute. It

has the effect of short-circuiting the trial and cutting

off the right of the parties to a trial by jury. Unknown

at common law, it applies only to cases in which no trial

is necessary because no evidence could affect the result.

Shevel’s, Inc. v. Southeastern Assocs., Inc., 228 Va. 175,

23
181, 320 S.E.2d 339, 342-43 (1984). In my view, this case

falls far outside that category.

The constitutional guarantees of freedom of the press

and freedom of speech are indeed fundamental to the ordered

liberty of our people, but the constitutional right to

trial by jury is no less so. Article I, Section 11 of the

Constitution of Virginia provides, in pertinent part:

“That in controversies respecting property, and in suits

between man and man, trial by jury is preferable to any

other, and ought to be held sacred.” That provision,

attributed to George Mason, has as much vitality in

Virginia today as it did in 1776, when it became a part of

our original constitution. See Bethel Investment Co. v.

City of Hampton, 272 Va. 765, 769 n.2, 636 S.E.2d 466, 469

n.2 (2006).

In this case, the motive and intent of the defendants

in publishing the allegedly defamatory editorial is an

issue essential to a finding of the presence or absence of

“New York Times malice.” That issue turns on material

facts, which in this case are genuinely in dispute. There

was evidence in the record from which reasonable minds

could draw differing conclusions as to those disputed

facts. Jackson had a constitutional right to submit that

dispute to a jury.

24
 Because I think the majority opinion erroneously

deprives Jackson of that right, I respectfully dissent.

25