Present: All the Justices
SHARON D. YEAGLE
v. Record No. 971304 OPINION BY JUSTICE ELIZABETH B. LACY
February 27, 1998
COLLEGIATE TIMES
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge
In this appeal, we consider whether the trial court
correctly dismissed a defamation action because the phrase at
issue could not reasonably be interpreted as stating actual
facts about the plaintiff as a matter of law.
Sharon D. Yeagle is employed as an assistant to the Vice
President of Student Affairs at Virginia Polytechnic Institute
and State University. As part of her responsibilities, she
facilitated the participation of students in the 1996
Governor's Fellows Program. The Collegiate Times, the
University's student newspaper, published an article
describing the University's successful placement of students
in the program. The text of the article surrounded a block
quotation in larger print attributed to Yeagle. Beneath the
quotation, the phrase "Director of Butt Licking" was printed
under Yeagle's name.
Yeagle filed a motion for judgment against the Collegiate
Times, alleging that the phrase "Director of Butt Licking"
constituted common law defamation, defamation per se, and use
of insulting words under Code § 8.01-45. The trial court
sustained the Collegiate Times' demurrer on all counts and
dismissed the case. The trial court held that the phrase at
issue was "void of any literal meaning," and that it would be
unreasonable to interpret the phrase as conveying any factual
information about Yeagle.
We awarded Yeagle an appeal limited to the question
whether the trial court erred in holding that, as a matter of
law, the phrase "Director of Butt Licking" cannot convey a
defamatory meaning. We conclude that the trial court did not
err in sustaining the demurrer because the offending phrase
cannot support an action for defamation -- an issue properly
determined by the court as a matter of law.
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. The United States Supreme Court has identified
constitutional limits on the type of speech that may be the
subject of common law defamation actions. Thus, speech which
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does not contain a provably false factual connotation, 1 or
statements which cannot reasonably be interpreted as stating
actual facts about a person cannot form the basis of a common
law defamation action. Milkovich v. Lorain Journal Co., 497
U.S. 1, 16-17, 20 (1990).
In considering the type of speech that falls beyond that
which can support a defamation action, the United States
Supreme Court has recognized that speakers may use language
that is insulting, offensive, or otherwise inappropriate, but
constitutes no more than "rhetorical hyperbole." Examples
include referring to the negotiating position of a real estate
developer as "blackmail," Greenbelt Coop. Publ'g Ass'n, Inc.
v. Bresler, 398 U.S. 6, 13-14 (1970), defining a labor union
"scab" to be a "traitor," Letter Carriers v. Austin, 418 U.S.
264, 284-86 (1974), or publishing a parody of an advertisement
referring to a public figure, Hustler Magazine, Inc. v.
Falwell, 485 U.S. 46, 50 (1988). In each of these instances,
no reasonable inference could be drawn that the individual
1
Speech which does not contain a provably false factual
connotation is sometimes referred to as "pure expressions of
opinion," see, e.g., Williams v. Garraghty, 249 Va. 224, 233,
455 S.E.2d 209, 215 (1995), although the Supreme Court has
specifically declined to hold that statements of opinion are
categorically excluded as the basis for a common law
defamation cause of action. Milkovich v. Lorain Journal Co.,
497 U.S. 1, 18-21 (1990).
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identified in the statements, as a matter of fact, engaged in
the conduct described. The statements could not reasonably be
understood to convey a false representation of fact. See
Milkovich, 497 U.S. at 16-17.
Similarly, we have recognized that words used to describe
a member of a labor union in the course of a labor dispute,
while "disgusting, abusive, [and] repulsive," will not support
a cause of action for defamation for the same reason –- they
could not "reasonably be understood . . . to convey a false
representation of fact." Crawford v. United Steel Workers,
AFL-CIO, 230 Va. 217, 234-35, 335 S.E.2d 828, 839 (1985),
cert. denied, 475 U.S. 1095 (1986). While Crawford involved
statements made in the context of a labor dispute which, under
federal law, requires a wider tolerance of rhetoric which
might otherwise support an action for defamation, the case
nevertheless reaffirms that, to be actionable, the alleged
defamatory statements must still be understood to convey a
false representation of fact. See also Freedlander v. Edens
Broadcasting, Inc., 734 F.Supp. 221, 225-27 (E.D. Va. 1990);
Polish Am. Immigration Relief Comm., Inc. v. Relax, 189 A.D.2d
370, 373-74, 596 N.Y.S.2d 756, 758-59 (1993).
Whether statements complained of in a defamation action
fall within the type of speech which will support a state
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defamation action is a matter for the trial judge to determine
as a matter of law, just as the 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. Chaves v. Johnson, 230 Va. 112, 119, 335 S.E.2d
97, 102 (1985); Great Coastal Express, Inc. v. Ellington, 230
Va. 142, 148, 334 S.E.2d 846, 850 (1985).
Yeagle argues that the demurrer should have been
overruled and the case resolved by a jury because the phrase
at issue conveys factual information and thus can support her
action for defamation. Yeagle argues that a literal
interpretation of the phrase imputes to her a criminal offense
involving moral turpitude under the sodomy statute, § 18.2-
361(A), and the phrase, therefore, is defamatory per se. 2 She
also asserts that the phrase carries with it the implication
that she curries favor with others by disingenuous behavior or
directs others to do so. According to Yeagle, such an
implication is defamatory per se because it suggests that she
2
A statement is defamatory per se if it (1) imputes the
commission of a criminal offense involving moral turpitude for
which a party may be convicted; (2) imputes that the person is
infected with a contagious disease which would exclude the
party from society; (3) imputes an unfitness to perform the
duties of a job or a lack of integrity in the performance of
the duties; or (4) prejudices the party in her profession or
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performs the duties of her job in an artificial, shallow, or
other manner that generally lacks integrity, and it prejudices
her in her career. Finally, she argues that, even if the
phrase is not defamatory per se, it is actionable defamation
because it injures her reputation and holds her up to
ridicule, citing Adams v. Lawson, 58 Va. (17 Gratt.) 250, 255-
56 (1867). We disagree.
The threshold issue, whether the complained of phrase
including inferences fairly attributable to it could
reasonably be interpreted as stating actual facts about Yeagle
and, therefore, be actionable defamation, is a matter of law
to be resolved by the trial court. In this case, the phrase
"Director of Butt Licking" is no more than "rhetorical
hyperbole." The phrase is disgusting, offensive, and in
extremely bad taste, but it cannot reasonably be understood as
stating an actual fact about Yeagle's job title or her
conduct, or that she committed a crime of moral turpitude.
Yeagle's assertion that the phrase connotes a lack of
integrity in the performance of her duties also fails and,
therefore, cannot properly be considered as the basis for a
defamation action. While "every fair inference" in a pleading
trade. Fleming v. Moore, 221 Va. 884, 889, 275 S.E.2d 632,
635 (1981).
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may be used to determine whether the words complained of are
capable of a meaning ascribed by innuendo, inferences cannot
extend the statements, by innuendo, beyond what would be the
ordinary and common acceptance of the statement. Carwile v.
Richmond Newspapers, Inc., 196 Va. 1, 8, 82 S.E.2d 588, 592
(1954). Applying this principle, a statement that an attorney
did not report certain payments cannot be extended by
inference to mean that the attorney acted improperly, for
purposes of a defamation action. Perk v. Vector Resources
Group, Ltd., 253 Va. 310, 316-17, 485 S.E.2d 140, 143-44
(1997). In this case, as we have said, the litigated phrase
itself cannot be taken as asserting actual facts about Yeagle.
Furthermore, considering the phrase at issue in the context of
the entire article, see Richmond Newspapers, Inc. v. Lipscomb,
234 Va. 277, 297-98, 362 S.E.2d 32, 43 (1987); The Gazette v.
Harris, 229 Va. 1, 22-23, 305 S.E.2d 713, 729 (1985), we find
nothing which supports an inference that Yeagle performed her
job with a lack of integrity or that she directed others to do
so. The article was complimentary of Yeagle and the program
with which she was associated.
Accordingly, because the phrase at issue could not
reasonably be considered as conveying factual information
about Yeagle, and therefore could not support a cause of
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action for defamation, we will affirm the judgment of the
trial court.
Affirmed.
JUSTICE KINSER, with whom JUSTICE KOONTZ joins, dissenting.
The issue in this appeal is whether the phrase “Director
of Butt Licking” conveys any defamatory factual information
about Yeagle. While the trial court must determine as a
matter of law whether this phrase is defamatory per se, Chaves
v. Johnson, 230 Va. 112, 119, 335 S.E.2d 97, 102 (1985), in
ruling on a demurrer, the trial court is “confined to the
legal sufficiency of a pleading, and [must not consider]
disputed facts.” Hop-In Food Stores, Inc. v. Serv-N-Save,
Inc., 237 Va. 206, 209, 375 S.E.2d 753, 755 (1989) (citing
Bellamy v. Gates and Gill, 214 Va. 314, 315-16, 200 S.E.2d
533, 534 (1973)). “A demurrer admits the truth of all
properly pleaded material facts. ‘All reasonable factual
inferences fairly and justly drawn from the facts alleged must
be considered in aid of the pleading.’” Ward’s Equipment v.
New Holland North America, 254 Va. 379, 382, 493 S.E.2d 516,
518 (1997) (quoting Fox v. Custis, 236 Va. 69, 71, 372 S.E.2d
373, 374 (1988)).
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Collegiate Times acknowledges that the phrase “Director
of Butt Licking” implies that a person either curries favors
with others by disingenuous behavior such as fawning or
directs others to do so. In fact, the trial court recognized
that this title conveys the inference that Yeagle “cultivates
favors from others or directs those who do.” “In order to
render words defamatory and actionable it is not necessary
that the defamatory charge be in direct terms but it may be
made indirectly, and it matters not how artful or disguised
the modes in which the meaning is concealed if it is in fact
defamatory.” Carwile v. Richmond Newspapers, 196 Va. 1, 7, 82
S.E.2d 588, 592 (1954).
The phrase is a factual assertion regarding Yeagle’s job
performance and imputes to her an unfitness to perform the
duties of her job or lack of integrity in the performance of
such duties. Fleming v. Moore, 221 Va. 884, 889, 275 S.E.2d
632, 635 (1981). The phrase also prejudices Yeagle in her
profession. Id. At common law, defamatory words are
actionable per se if they satisfy either of these criteria.
Id.
For these reasons, I dissent and would reverse the
judgment of the trial court and remand this case for further
proceedings.
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