Dean v. Dearing

Present: All the Justices

DONALD A. DEAN, JR.

v. Record No. 011154 OPINION BY JUSTICE ELIZABETH B. LACY
April 19, 2002
M. LEE DEARING

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
John J. McGrath, Jr., Judge

In this case, we are asked to determine whether a public

official can use the "small group theory" to meet the "of and

concerning" element of a claim for defamation.

Following his confrontation with and arrest by the Elkton

chief of police, M. Lee Dearing, the mayor of Elkton, made a

number of statements alleging corruption, dishonesty, and

felonious conduct by the Elkton police department. From

February through November 1999, Dearing accused the police

department of intimidating witnesses, stealing property,

harassment, misappropriation of money, and improperly

disposing of drug and gun evidence. These statements were

published in newspapers serving the Elkton community. At that

time, the Elkton police department had from five to eight

members.

Donald A. Dean, Jr., a member of the Elkton police force,

instituted this defamation action against Dearing on the basis

of these statements, seeking compensatory and punitive

damages. Dearing filed a demurrer asserting that the motion

for judgment did not state a cause of action for defamation
because, inter alia, the complained of statements referred to

conduct of the Elton police force and were not "of and

concerning" Dean specifically. In response, Dean, relying on

Ewell v. Boutwell, 138 Va. 402, 121 S.E. 912 (1924), asserted

that he met the "of and concerning" element through the

application of the "small group theory."

The trial court sustained Dearing's demurrer and

dismissed the motion for judgment, holding that under New York

Times Co. v. Sullivan, 376 U.S. 254 (1964), the "small group

theory" cannot be used to satisfy the "of and concerning"

element of defamation when such defamation is directed at a

governmental group. The trial court also concluded that the

statements at issue referred to conduct by the Elkton police

department rather than Dean's conduct and therefore Dean had

not pled a cause of action for defamation. * We awarded Dean an

appeal and for the following reasons, we will affirm the

judgment of the trial court.

To prevail in a defamation cause of action, a plaintiff

must establish that the alleged defamatory statements

published were "of or concerning" him. The Gazette, Inc. v.

Harris, 229 Va. 1, 37, 325 S.E.2d 713, 738 (1985). The

exception to this general rule, recognized in Ewell v.

*
One statement did refer to Dean by name, but the trial
court concluded that this statement was not defamatory as a
matter of law and this finding is not challenged on appeal.

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Boutwell, was that if the defamatory language is directed

towards "a comparatively small group of persons . . . and is

so framed as to make defamatory imputations against all

members of the small or restricted group, any member thereof

may sue." 138 Va. at 411, 121 S.E. at 914. Under this "small

group theory" exception, a member of a small group need not

show that the allegedly defamatory statements were directed

specifically at the member bringing the action to satisfy the

"of and concerning" element of common law defamation.

The continued viability of this exception has been called

into question when the small group is a governmental agency.

In New York Times v. Sullivan, the United States Supreme Court

considered a defamation action brought by a city commissioner

who supervised the police department based on conduct ascribed

to the police force in a newspaper advertisement. The Alabama

Supreme Court concluded that the "of and concerning"

requirement was satisfied based on the "common knowledge" that

a police commissioner was responsible for the actions of the

police department, even though the police commissioner was not

implicated by name or office in the offending advertisement.

New York Times, 376 U.S. at 263. The United States Supreme

Court opined that references to the "police" or the "Police

Department" could not be considered personal criticism of the

police commissioner, even if evidence was produced that some

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readers understood that the police commissioner was ultimately

responsible for the police department and the alleged

defamation, therefore, necessarily referenced the police

commissioner. Id. at 289-90. Thus, the Supreme Court

rejected the holding of the Alabama Supreme Court that the "of

and concerning" element of a common law defamation action was

met. Id. at 288.

Central to the Supreme Court's decision was the principle

that prosecutions for libel of government have no place in

American jurisprudence. Id. at 291-92. The Supreme Court

reasoned that to read a general reference to the police force

as a reference to a specific person "would sidestep" this

principle by "transmuting criticism of government, however

impersonal it may seem on its face, into personal criticism,

and hence potential libel, of the officials of whom the

government is composed." Id. at 292. Such a proposition

"strikes at the very center of the constitutionally protected

area of free expression." Id. Thus, the Supreme Court

concluded that "such a proposition may not constitutionally be

utilized to establish that an otherwise impersonal attack on

governmental operations was a libel of an official responsible

for those operations." Id.

New York Times v. Sullivan did not specifically address

the "small group theory" but it did establish that a reference

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to a governmental group cannot be treated as an implicit

reference to a specific individual even if that individual is

understood generally to be responsible for the actions of the

identified governmental group. The rationale of the Supreme

Court in New York Times did, however, foreshadow the Court's

holding in Rosenblatt v. Baer, 383 U.S. 75 (1966), which

directly addressed the "small group theory."

In Rosenblatt, the defendant published a column in a

newspaper raising questions about the operation of a

recreational area in prior years when the plaintiff, under the

direction of two elected Commissioners, supervised the

recreational area. There was no direct reference to the

plaintiff, but the plaintiff's witnesses testified that they

"read the column as imputing mismanagement and peculation"

during plaintiff's term as supervisor. Rosenblatt, 383 U.S.

at 79. New Hampshire law allowed recovery by a member of a

group if the jury found that the defamatory publication "cast

suspicion indiscriminately on the small number of persons who

composed the former management group, whether or not it found

that the imputation of misconduct was specifically made of and

concerning [the plaintiff]." Id. at 79-80. The Supreme Court

rejected this theory, stating that allowing recovery on such a

basis is "tantamount to a demand for recovery based on libel

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of government, and therefore is constitutionally

insufficient." Id. at 83.

Following the opinion in Rosenblatt, there is little

question that the use of the "small group theory" alone as the

basis for satisfying the "of and concerning" element of a

common law defamation action against a governmental actor does

not survive constitutional scrutiny. An allegedly defamatory

statement which imputes misconduct generally to a governmental

group constitutes libel of government, for which there is no

cause of action in American jurisprudence. New York Times,

376 U.S. at 291-92. A member of a governmental group against

which an allegedly defamatory statement is made can sustain a

common law action for defamation only if that member can show

the statement specifically implicated that member or each

member of the group. Rosenblatt, 383 U.S. at 81-82. Such

implication can be shown by extrinsic evidence, but evidence

that others "understood" the implication based solely upon a

plaintiff's membership in the referenced group will not

satisfy the "of and concerning" requirement.

Dean nevertheless asserts that alleging a cause of action

based on the "small group theory" is sufficient to withstand a

demurrer and that he should be allowed to proceed to trial to

introduce evidence demonstrating that the statements in issue

are "of and concerning" him. We disagree.

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 A demurrer is based on the contention that a pleading

does not state a cause of action or fails to state facts upon

which the relief demanded can be granted. Code § 8.01-273.

Dean's pleadings contain the defamatory statements referring

to Elkton "law enforcement," police department, or police

force, but contain no allegations, factual or otherwise,

addressing how the articles reference Dean specifically or

could be understood to do so, except based on his status as a

police officer. As we have just discussed, the "of and

concerning" element of common law defamation cannot be

satisfied as a matter of law by either the "small group

theory" or allegations and evidence that readers of allegedly

defamatory statements understood the statements referred to a

member of the governmental group based solely on that person's

membership in the identified governmental group. Rosenblatt,

383 U.S. 79, 82-83; New York Times, 376 U.S. at 258, 288-89.

The mere conclusory statement that the articles are "of and

concerning" Dean does not satisfy the pleading requirement of

alleging facts upon which relief can be granted in this case,

and therefore Dean's pleading was insufficient to withstand a

demurrer.

Accordingly, we conclude that the trial court did not err

in sustaining Dearing's demurrer and dismissing Dean's common

law action for defamation.

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 Affirmed.

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