PRESENT: Kinser, C.J., Lemons, Millette, Mims, McClanahan, and
Powell, JJ., and Koontz, S.J.
PHILLIP D. WEBB
OPINION BY
v. Record No. 122024 JUSTICE WILLIAM C. MIMS
January 10, 2014
VIRGINIAN-PILOT MEDIA COMPANIES, LLC
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Randall D. Smith, Judge
In this appeal, we consider whether a published article
created a defamatory implication for which the plaintiff could
recover compensatory and punitive damages.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Virginian-Pilot Media Companies, LLC publishes a newspaper
of general circulation (“The Virginian-Pilot”). In December
2009, The Virginian-Pilot published an article written by Louis
Hansen. According to the article, Patrick Bristol (“Patrick”)
and Kevin Webb (“Kevin”) were students at Great Bridge High
School (“Great Bridge”) in Chesapeake, Virginia. Kevin’s
brother, Brian Webb (“Brian”), was a Great Bridge alumnus.
The article reported that on the evening of November 5,
2008, Patrick and a number of his friends drove to Kevin’s home
to confront him about school-related disagreements. Kevin’s
father, Phillip Webb (“Phillip”), sent them away. The article
also reported that in the early morning hours of November 7,
2008, Kevin and Brian went to Patrick’s home in retaliation.
There they engaged in a physical altercation with Patrick’s
father.
The article included several factual statements about
Phillip. It stated that Phillip was an assistant principal at
Oscar Smith High School, also in Chesapeake. It stated that he
previously coached pole vaulting at Great Bridge and that one of
his former team members had gone on to earn an Olympic medal in
the sport. It described Kevin and Brian as “pole vaulting
stars” at Great Bridge.
The article juxtaposed the effect the November incidents
had on Patrick, Kevin, and Brian. It stated that Kevin and
Brian were each charged with felonies and later convicted of and
sentenced for misdemeanor offenses. Nevertheless, Kevin was
allowed to remain at Great Bridge and compete in track events.
He thereafter graduated and attended college on a track
scholarship. By contrast, the article stated that the
Chesapeake school system offered to allow Patrick to complete
his final year at another high school. Instead, he dropped out,
completed a General Educational Development certificate, and
anticipated beginning a shipyard apprenticeship program.
Without expressly commenting on this disparity, the article
paraphrased a deputy director at the Virginia High School League
as stating that “a school principal typically determines whether
a student is in good standing and allowed to participate in
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sports.” It also referred to state regulations permitting a
school system to suspend or expel a student charged with a
felony. It included confirmation by the Chesapeake school
system’s spokesperson that a student there could be suspended or
expelled if charged with a felony. 1 It further quoted the
spokesperson verbatim as stating that “Kevin Webb ‘did not get
preferential treatment because of his dad’s position.’” It
noted that Phillip declined to comment for the story.
Phillip filed a second amended complaint against Hansen and
The Virginian-Pilot alleging libel, libel per se, and libel per
quod. He asserted that the article falsely implied that he “had
engaged in unethical conduct by obtaining preferential treatment
for his son,” and that the false implication damaged his
reputation. The defendants filed a demurrer in which, among
other things, they denied that the article created such an
implication. They argued that it did “not suggest in any manner
that [Phillip] obtained preferential treatment for his son. In
fact, the article expressly states that his son did not receive
1
In actuality, the school system’s policy was not to
suspend or expel such students. Rather, according to an
undisclosed policy administered by its supervisor of discipline,
the school system reviewed the student’s record, grades, and
attendance, and then warned the student and his parent(s) that
any subsequent violation of the rules and regulations would
result in additional discipline. This policy was not known to
the school system’s spokesperson and was not disclosed to Hansen
or The Virginian-Pilot until trial.
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preferential treatment.” The circuit court overruled the
demurrer.
Thereafter, the defendants moved the court to declare
Phillip a public official and thereby require him to prove
malice under the standard articulated in New York Times Co. v.
Sullivan, 376 U.S. 254 (1964). The court granted the motion and
the case proceeded to trial. The defendants moved to strike
when Phillip rested his case and at the close of the evidence,
arguing that the evidence was insufficient to prove New York
Times malice. The court took the motions under advisement and
submitted the case to the jury, which returned a verdict
awarding Phillip $3,000,000 as compensatory damages. The court
thereafter granted the defendants’ motions to strike, entered a
defense verdict, and dismissed the action with prejudice.
We awarded Phillip this appeal.
II. ANALYSIS
Phillip asserts that the circuit court erred by granting
the defendants’ motion to declare him a public official and by
granting their motions to strike. In an assignment of cross-
error, the defendants assert that the court erred by overruling
their demurrer. We conclude that this assignment of cross-error
is dispositive and thus we do not reach the arguments raised in
a second assignment of cross-error and Phillip’s assignments of
error. Deerfield v. City of Hampton, 283 Va. 759, 764, 724
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S.E.2d 724, 726 (2012); Cuccinelli v. Rector & Visitors of the
Univ. of Va., 283 Va. 420, 425, 722 S.E.2d 626, 629 (2012).
We review a circuit court’s ruling on a demurrer de novo.
Schilling v. Schilling, 280 Va. 146, 148, 695 S.E.2d 181, 183
(2010).
A common law complaint for libel or slander historically
included three elements: the inducement, an explanation of the
facts demonstrating that the allegedly defamatory statement is
actionable; the colloquium, an explanation of how the allegedly
defamatory statement refers to the plaintiff, if he is not
explicitly named; and the innuendo, an explanation of the
allegedly defamatory meaning of the statement, if it is not
apparent on its face. Black’s Law Dictionary 300, 845, 861 (9th
ed. 2009); see also Moseley v. Moss, 47 Va. (6 Gratt.) 534, 549-
50 (1850).
It is the innuendo that is at issue in this case. Phillip
avers that the article created the defamatory implication that
he acted unethically “by obtaining preferential treatment” for
Kevin. It did so by juxtaposing an insinuation of special
treatment with the reported facts that he was an assistant
principal at another school in the same school system and that
he had been a successful pole vaulting coach at Great Bridge
where Brian and Kevin were successful pole vaulting team
members. We disagree.
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Where, as here, a plaintiff alleges that he has been
defamed not by statements of fact that are literally true but by
an implication arising from them, the alleged implication must
be reasonably drawn from the words actually used. Chapin v.
Knight-Ridder, Inc., 993 F.2d 1087, 1092-93 (4th Cir. 1993); see
also Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40, 48, 670
S.E.2d 746, 751 (2009) (stating that a plaintiff may bring an
action for defamation for “any implications, inferences, or
insinuations that reasonably could be drawn from each statement”
of fact (emphasis added)); Union of Needletrades, Indus. &
Textile Emples. v. Jones, 268 Va. 512, 519, 603 S.E.2d 920, 924
(2004) (stating plaintiff may not bring a defamation action for
“statements which cannot reasonably be interpreted” to impute a
false fact about him (emphasis added)); Carwile, 196 Va. at 9,
82 S.E.2d at 592 (permitting an action for defamation where the
injurious factual assertion “is a reasonable implication” of the
published statements) (emphasis added)). Thus, the question for
the circuit court when ruling on the demurrer was whether, as a
matter of law, the article is reasonably capable of the
defamatory meaning Phillip ascribes to it. 2
2
Phillip cites Carwile and several other cases, arguing
that Virginia law recognizes a claim for defamation by
inference, implication, or insinuation. E.g., 196 Va. at 7, 82
S.E.2d at 592. We agree that it does. However, that is not the
question here.
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In determining whether the words and
statements complained of in the instant case
are reasonably capable of the meaning
ascribed to them by innuendo, every fair
inference that may be drawn from the
pleadings must be resolved in the
plaintiff's favor. However, the meaning of
the alleged defamatory language can not, by
innuendo, be extended beyond its ordinary
and common acceptation. The province of the
innuendo is to show how the words used are
defamatory, and how they relate to the
plaintiff, but it can not introduce new
matter, nor extend the meaning of the words
used, or make that certain which is in fact
uncertain.
Carwile v. Richmond Newspapers, Inc., 196 Va. 1, 8, 82 S.E.2d
588, 592 (1954). This is a question of law to be decided on
demurrer. See Perk v. Vector Resources Group, 253 Va. 310, 316-
17, 485 S.E.2d 140, 144 (1997). Ensuring 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.
The article draws a stark contrast between how Kevin and
Patrick were affected in the aftermath of the incidents. This
insinuates that Kevin may have benefited from special treatment.
Nevertheless, the article does not create a reasonable
implication that Phillip solicited or procured the insinuated
special treatment. It does not state or suggest that Phillip
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undertook any affirmative action to arrange or endorse the
school system’s disciplinary response to the incidents.
The information in the article may suggest that Phillip had
an uncommon acquaintance with school administrators at Great
Bridge because he formerly had coached there and currently was
an administrator at another school. It may also suggest that
they were favorably disposed towards Phillip because of his
success as a coach there. One might reasonably infer from these
facts that Kevin would have received harsher discipline if they
were not true. But Phillip was not implicated as the instigator
of any preferential treatment. The reasonable implication is
that Great Bridge’s administrators may have acted on their own
initiative out of sympathy or regard for Phillip, not that he
intervened in their disciplinary decisions. The article
disclaimed even that implication by quoting the spokesperson’s
denial. 3
Phillip also argues that several witnesses testified at
trial that they inferred from the article that he had solicited
or procured special treatment for Kevin. He also argues that
the jury’s verdict is conclusive because the fact-finder
determined that the article created that implication. We again
3
Further, the testimony of the school system’s supervisor
of discipline established that the disciplinary decision in
Kevin’s case was not in the hands of Great Bridge’s
administrators at all.
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disagree. As noted above, the question of whether the article
is reasonably capable of the defamatory meaning Phillip ascribes
to it is a question of law, not fact. Resolving it is an
essential threshold, gatekeeping function of the court before a
case is submitted to the jury. See Perk, 253 Va. at 316-17, 485
S.E.2d at 144 (concluding that the alleged statements were not
“sufficiently defamatory on their face to permit a fact finder
to decide whether in fact the statements were actually
defamatory” when determining whether a defamatory charge could
be inferred); Gazette, 229 Va. at 29, 325 S.E.2d at 733
(concluding that a “publication was sufficiently defamatory on
its face, under Carwile, to permit a jury to decide whether in
fact the statement actually was defamatory” (emphasis omitted));
Cook v. Patterson Drug Co., 185 Va. 516, 521, 39 S.E.2d 304, 307
(1946) (“It is the duty of the court to define what constitutes
insulting words, and it is for the jury to say whether the
particular words come within the definition.”).
As a matter of law, the article is not reasonably capable
of the defamatory meaning Phillip ascribes to it. The
implication that may be reasonably drawn from the article does
not defame Phillip. An implication defaming Phillip cannot be
reasonably drawn. Accordingly, the circuit court erred by
overruling the defendants’ demurrer. However, the error is
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supplanted by its final judgment in favor of the defendants. We
affirm that final judgment.
Affirmed.
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