The doctrine is codified in Virginia at Code § 8.01-6.1, which states that “an amendment of a pleading changing or adding a claim or defense against a party relates back to the date of the original pleadings for purposes of the statute of limitations if the court finds (i) the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth in the original pleading, (ii) the amending party was reasonably diligent in asserting the amended claim or defense, and (iii) parties opposing the amendment will not be substantially prejudiced in litigating on the merits as a result of the timing of the amendment.” In federal court, see Fed. R. Civ. P. 15(c).

The doctrine has limits, however, and those limits matter enormously in defamation cases, where each publication to a new recipient is a legally distinct tort. Although there haven’t been many Virginia state-court cases applying the doctrine to defamation cases, there are several examples of federal courts grappling with the issue. In Cannon v. Peck, 36 F.4th 547 (4th Cir. 2022), for example, the United States Court of Appeals for the Fourth Circuit recently applied the “conduct, transaction or occurrence” test and concluded that “an amendment ‘relates back to the date of the original pleading when…the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading.’” This happens, the court continued, when “(1) there is ‘a factual nexus between the amendment and the original complaint,’ and (2) the ‘defendants had notice of the claim and will not be prejudiced by the amendment.’” A factual nexus requires the new claim to possess the “same core facts [in time and type] as the timely filed claims.” (See Gray v. Branker, 529 F.3d 220, 241 (4th Cir. 2008)). Here’s where the publication element comes in: an amended complaint alleging new defamatory statements will not relate back to the original complaint if the new counts “named new parties to whom allegedly defamatory words were published [or] new dates of publication.” (See English Boiler & Tube, Inc. v. W.C. Rouse & Son, Inc. (4th Cir. Feb. 23, 1999)).

The Virginia Court of Appeals recently had occasion to apply these principles in Condlin v. Shaia, Record No. 1925-24-2 (Va. Ct. App. March 10, 2026), a family defamation dispute that initially produced a $1.35 million jury verdict before it was reversed. The facts, according to the opinion, go something like this. John Shaia sued his sister, Anne-Marie Shaia Condlin, and her husband, Andrew Condlin, for defamation per se, alleging that each had made statements accusing him of sexual misconduct. Anne-Marie had learned that one of John’s daughters had been sexually assaulted, and when John later discovered that Anne-Marie had known about the assault without informing him, the siblings’ relationship ruptured. John had admitted to sexually inappropriate conduct toward Anne-Marie when they were children. Against that backdrop, Anne-Marie and Andrew began making statements to family members and others expressing concern that John was (or may be) currently abusing his own children. John denied any misconduct as an adult or toward his own children.

John filed his original complaint on February 5, 2021, alleging that Andrew had called him a “child molester” at a family wedding reception in October 2019, and that Anne-Marie had called him a “rapist” in conversations with their father and brothers. He then amended his complaint three times over the next three years, each time adding newly identified statements made to newly identified recipients. After a five-day trial, the jury awarded John $750,000 in compensatory damages and $3,000,000 in punitive damages against Anne-Marie (reduced by statute to $350,000), plus $250,000 in compensatory damages against Andrew.

The Court of Appeals reversed, holding that the circuit court had erred by allowing the jury to consider the majority of the statements John had added through his amended complaints. Applying Code § 8.01-6.1 and drawing on the Fourth Circuit’s analysis in Cannon v. Peck, the court found that most of the added statements failed the threshold requirement that the amended claims arise out of the same “conduct, transaction, or occurrence” as the original pleading.

First, some of the added claims alleged that defamatory statements were made to a different audience. The original complaint focused on statements Anne-Marie and Andrew made to family members: John’s father and brothers. The amended complaints added statements made to members of their church community: a deacon, a parish worker, and others affiliated with St. Bridget Catholic Church. The court held that these statements were “published to a different audience” and therefore did not arise from the same transaction or occurrence as the original allegations. This holding tracks defamation law’s foundational principle that each publication is a separate tort. Because the operative “occurrence” in a defamation claim is not merely the speaker’s general intent to defame, but the specific act of publication to a specific recipient, a statement to a new recipient is a separate tort and therefore a new occurrence. The original complaint’s vague assertion that the Condlins “could be repeating these false accusations outside the context of the family” was insufficient to bring later-identified non-family recipients within the same transaction.

Second, the newly added statements accused the plaintiff of fundamentally different behavior. The original complaint attributed only one type of statement to Anne-Marie: that John was a “rapist.” The amended complaints added statements in which Anne-Marie allegedly accused John of molesting his own children. Invoking the Virginia Supreme Court’s century-old precedent in Irvine v. Barrett, 119 Va. 587 (1916), the court held that rape and child molestation, while both sexual offenses, are legally distinct accusations with different elements and characteristics. Because the original complaint did not allege that Anne-Marie ever called John a child molester, her later-added statements to that effect constituted a new cause of action rather than an amplification of the original one. They could therefore not “relate back” for statute-of-limitations purposes.

Together these holdings left only two of the fifteen submitted statements properly before the jury: Andrew’s “child molester” accusation at the wedding reception, and Anne-Marie’s “rapist” statement to family members. Because the court could not determine whether the jury’s damages award rested solely on those two statements or potentially also on the improperly admitted ones, the entire verdict (including the punitive damages award) had to be reversed and the case remanded for a new trial.

The plaintiffs, the American Conservative Union (ACU) and the American Conservative Union Foundation (ACUF), host the annual Conservative Political Action Conference (CPAC) and publish ratings of state and federal lawmakers based on voting records. In February 2024, the defendant Institute for Legislative Analysis published a series of articles titled the “Soros Files,” authored by a former ACU employee. The articles included statements such as:

• “Soros, Zuckerberg and Arnold have so heavily invested in CPAC to control its scorecard”
• “Meet CPAC Billionaire Funder George Soros”
• “CPAC has at least two Soros-funded prosecutors on its staff”

ACU and ACUF alleged these statements were defamatory, arguing they falsely accused the organizations of allowing donations to influence their scorecard results. Following publication, a major donor withdrew sponsorship of CPAC 2024, citing the Soros Files as the reason. The plaintiffs brought defamation per se claims against the defendants.

The court dismissed the defamation claims, holding that the allegedly defamatory statements lacked the requisite “sting” to be actionable under Virginia law and that they failed to qualify as defamation per se because the statements did not necessarily prejudice the plaintiffs in their profession or trade.

Insufficient Defamatory Sting

To be actionable as defamation, a statement must “injure one’s reputation in the common estimation of mankind, to throw contumely, shame or disgrace upon him, or which tends to hold him up to scorn, ridicule, or contempt.” The court found that the challenged statements—which merely alleged associations between the plaintiffs and certain wealthy donors—failed this test.

The court rejected the notion that controversial associations automatically satisfy the defamatory sting requirement. Drawing on Supreme Court of Virginia precedent in Fleming v. Moore, the court noted with approval decisions from other jurisdictions holding that accusations of political associations do not constitute defamation. As one court observed, “while a statement that a person is a Republican may very possibly arouse adverse feelings against him in the mind of many Democrats, and even diminish him in their esteem, it cannot be found in itself to be defamatory.” (See Guilford Trans. Indus., Inc. v. Wilner, 760 A.2d 580, 594 (D.C. Ct. App. 2000)).

The court acknowledged that six of the seven challenged statements merely alleged associations between the plaintiffs and Soros, Zuckerberg, or Arnold, without explaining how such associations were “necessarily hurtful” to the plaintiffs’ business. The plaintiffs offered no allegations that association with these figures would injure their reputation “in the common estimation of mankind”—only that such associations might upset their conservative donor base.

Defamation Per Se in the Business Context

The plaintiffs attempted to establish defamation per se under the fourth recognized category: statements that “prejudice such person in his or her profession or trade.” However, the court clarified that this category requires more than demonstrating adverse business impact. Rather, the defamation must be “necessarily hurtful” to the plaintiff’s business and must “touch upon the plaintiff in his special trade or occupation.”

The court found the plaintiffs had not articulated how the challenged statements met this standard. That a statement may cause a sponsor to withdraw support does not automatically render it defamatory per se. The statement must relate to the plaintiff’s fitness or integrity in conducting its specific business, not merely create political controversy.

The court did identify one statement that came closest to alleging defamation per se: the claim that “Soros, Zuckerberg and Arnold have so heavily invested in CPAC to control its scorecard.” Even this statement, however, did not directly accuse the plaintiffs of allowing donors to control results. Instead, it “ascribe[d] a motive as to why those individuals would want to contribute to CPAC” without stating that such control actually occurred.

This decision offers important guidance for political organizations, advocacy groups, and public figures navigating defamation claims in polarized environments. The ruling establishes that organizations cannot bootstrap political controversy into defamation liability. Statements linking an organization to controversial donors or political figures—even those reviled by the organization’s supporters—do not automatically meet the threshold for defamation.

The doctrine does not shield churches from judicial review of matters that are wholly secular in nature. The central concern is whether adjudication would require courts to interpret religious doctrine or to second-guess ecclesiastical judgments; the doctrine does not require courts to abstain simply because a dispute involves religious actors or has some incidental connection to religious principles. For example, a false accusation that a church member punched another church member in the face would not be protected because such a statement can be evaluated under neutral principles of law, without reference to issues of faith or religious doctrine. One might assume a false accusation of sexual abuse would also fall into this category, but as with any defamation claim, it depends on the context in which the statement was made. If it’s clear that the term “sexual abuse” was being used according to a church’s definition of sexual abuse, the ecclesiastical abstention doctrine will indeed apply and protect the speaker from defamation liability. So held the Virginia Court of Appeals in the case of Catholic Diocese of Richmond v. Oliver Smalls, decided November 5, 2025.

The material facts, according to the opinion, are as follows. The Catholic Diocese of Richmond published a list on its website identifying clergy who had “credible and substantiated allegation[s] of sexual abuse” involving a minor. The list, posted in February 2019, included the name of Oliver Joseph Smalls, Jr., an ordained Catholic priest. Although Smalls had spent decades ministering in Belize and was not then employed by the Richmond Diocese, the Diocese included him because the underlying allegation arose while he was a seminarian of the Diocese of Richmond. The same day the list appeared online, it was published in the Richmond Times-Dispatch. Smalls sued for defamation, alleging that the accusation was false and that its publication destroyed his reputation as a priest. He sought $2 million in compensatory damages and $350,000 in punitive damages.

In response, the Diocese filed a plea in bar invoking the ecclesiastical abstention doctrine, arguing that the court lacked subject matter jurisdiction. In support, it submitted the Catholic Church’s “Charter for the Protection of Children and Young People,” which sets forth churchwide norms governing the investigation, classification, and public disclosure of allegations of sexual abuse of minors by clergy. Significantly, the Charter defines “sexual abuse of a minor” in expressly religious terms (including a reference to violations of the “sixth commandment of the Decalogue”) and directs bishops to consult moral theologians where doubt exists.

After an evidentiary hearing, the circuit court denied the plea. It reasoned that ecclesiastical abstention might have applied had the Diocese confined its communication to internal church channels, but that by publishing the list to the general public without clarifying that it was using church-defined terminology, the Diocese had crossed into secular territory. On appeal, the Court of Appeals reversed and dismissed the case.

To be actionable, the court held, the statement must have included a false statement of fact. Evaluating falsity in this situation would require a court to ask whether there was in fact a “credible and substantiated allegation of sexual abuse involving a minor” under the standards used by the Catholic Church. The trial judge would have had to examine the methodology used by the church in placing Smalls’s name on the list of accused offenders. “Sexual abuse of minor” is defined by the church as a violation of “the sixth commandment of the Decalogue committed by a cleric with a minor below the age of eighteen years” or as “the acquisition, possession, or distribution by a cleric of pornographic images of minors under the age of fourteen, for purposes of sexual gratification, by whatever means or using whatever technology.” And “[i]f there is any doubt whether a specific act qualifies as an external, objectively grave violation, the writings of recognized moral theologians should be consulted, and the opinions of recognized experts should be appropriately obtained.”

That inquiry could not be disentangled from ecclesiastical doctrine. The Charter’s definition of sexual abuse explicitly invokes religious concepts, including violations of the Sixth Commandment, and directs bishops to consult moral theologians in close cases. A civil court could not evaluate whether the bishop who authored the list properly applied those standards without interpreting religious precepts and second-guessing internal church determinations. As the court put it, “[c]ivil courts cannot adjudicate defamation claims when the truth of the statements in question turns on ecclesiastical law” (citing Episcopal Diocese of Southern Virginia v. Marshall, 81 Va. App. 255, 275 (2024)).

The court rejected Smalls’s argument that the church’s definition of sexual abuse was functionally identical to secular criminal definitions. Even if the concepts overlapped, the court held, the operative question was which definition the Diocese actually applied in making and publishing its determination. Because that definition was ecclesiastical in nature, neutral principles could not be used.

The Court of Appeals also rejected the circuit court’s reasoning that public dissemination altered the analysis. The doctrine does not turn on audience or publicity, but on substance. Whether a religious determination is communicated internally or to the public, courts must ask whether adjudicating the resulting claim would require resolving ecclesiastical matters. Because Smalls’s defamation claim could not be resolved without entangling the court in religious doctrine and church governance, the Court of Appeals held that the circuit court lacked subject matter jurisdiction over the dispute.

Let’s look at last week’s decision in Patricia Thurston v. BankUnited, N.A., from the Western District of Virginia. Patricia Thurston owned residential real property in Roanoke County, which she sold in January 2024. Pike Title and Escrow, LLC, handled the closing and prepared a settlement statement showing that Thurston was to receive $66,484.74 in sale proceeds. Thurston provided wiring instructions for her Truist Bank account, and Pike Title transmitted those instructions to BankUnited, N.A., the bank that held Pike Title’s escrow account. On January 12, 2024, BankUnited wired the funds to Thurston’s account without incident, and the transaction initially appeared complete and proper. At the time of closing, a prior deed of trust on the property had been paid in full; Pike Title prepared a Certificate of Satisfaction reflecting that payoff and recorded it shortly thereafter, having charged Thurston a recording fee for that purpose.

Approximately ten days later, BankUnited contacted Truist Bank and demanded return of the wired funds, asserting that the wire transfer was the result of “confirmed fraud” and a “real estate scam.” BankUnited repeated those assertions in subsequent communications, including an email with the subject line “REAL ESTATE WIRE FRAUD,” and later claimed that Thurston had falsified an Owner’s Affidavit stating there were no outstanding liens on the property. These accusations were apparently based on the fact that Thurston signed the affidavit on January 11, 2024, while the Certificate of Satisfaction releasing the deed of trust was not recorded until January 12, 2024.

Thurston responded that the lien was actually paid earlier, on January 9, 2024, and that the later recordation date was the result of ministerial lag rather than deception. She sued for defamation per se, contending that BankUnited falsely accused her of criminal wire fraud. Accepting the allegations of the complaint as true at the motion to dismiss stage, the court agreed with her that even if her affidavit contained a false statement (and it wasn’t even clear that it did), the alleged falsity did not establish wire fraud or other intentional criminal conduct. In other words, the alleged truth of the bank’s statements did not correspond to the defamatory sting of those statements.

The court drew a distinction between an arguably incorrect statement in a closing affidavit, on the one hand, and an affirmative accusation of intentional criminal fraud, on the other. The court deemed it entirely plausible that Thurston’s affidavit was made in good faith given that the lien had, in fact, been paid prior to closing, even if the certificate had not yet been recorded. “Even assuming that the affidavit was false because it was signed a day before Pike Title recorded the Certificate of Satisfaction releasing the lien, it does not prove that Thurston committed real estate fraud,” the court wrote. “The affidavit does not make true that Thurston ‘falsified the documents’ and that Thurston was part of a “real estate scam” that amounted to ‘real estate wire fraud.’”

For these reasons, the court denied BankUnited’s motion to dismiss, finding that Thurston had alleged a valid claim of defamation per se.

The Western District of Virginia recently faced such a situation and decided the plaintiff had alleged sufficient facts on his defamation claim to survive a motion to dismiss. The facts of Jacob T. Unger v. Timothy C. Carter are essentially as follows, as laid out in the opinion (and derived from the allegations in the complaint).

On April 5, 2024, Deputy Jacob Unger responded to a single-vehicle crash in Shenandoah County alongside Master Deputy Hank Hoover. The driver, Kyle Ortts, was located near the scene. Unger, recognizing Ortts as a former classmate but not a close acquaintance, conducted a brief assessment and saw no immediate signs of intoxication. However, at Hoover’s suggestion, Unger administered a preliminary breath test (PBT), which registered a blood alcohol concentration of 0.098 — above Virginia’s legal limit of 0.08. Following standard protocol, Unger had activated his body-worn camera. But after conferring with Hoover, he was instructed to deactivate it — an action that violated department SOPs. Afterward, Sergeant Keith Staffa arrived and told Unger he had mishandled the DUI investigation by giving the PBT too early, and instructed him to drop the DUI pursuit and instead issue a reckless driving summons. Unger complied.

The next day, Unger was told the reckless driving summons used the wrong code. He was given two options by his supervisors: either correct the summons through a magistrate or shred it and drop the matter. Following repeated assurances that he would face no consequences, Unger destroyed both copies of the summons after retrieving the defendant’s copy. Days later, he casually mentioned his discomfort with the situation to a state trooper, who reportedly alerted the Commonwealth’s Attorney. This set off a chain reaction culminating in Unger’s termination by Sheriff Timothy Carter, who proceeded to issue a public press release and video on May 7, 2024. In that press release, Carter claimed that “the deputy” (easily identifiable in the linked video as Deputy Unger) “made no effort to investigate the drunk driving incident,” even though the driver had admitted to drinking and crashed into a structure. Carter also stated that Unger “made a decision to charge reckless driving,” and noted that he “offered and received a fist bump” from the driver upon collecting the summons for destruction.

Unger sued Carter for defamation, arguing that the statements in the press release falsely portrayed him as negligent and unethical, ignored the fact that he had merely followed his superiors’ orders, and directly harmed his reputation and employment prospects. The court agreed that he had alleged a prima facie case of defamation under Virginia law.

Defamation consists of three elements: (1) publication of (2) an actionable statement with (3) the requisite level of intent. Carter contested only the second element, arguing that his statements were not actionable because they were either (a) opinions rather than factual assertions, or (b) not specifically “of or concerning” Unger.

The court found that at least two statements made by Carter in the press release were factual assertions that could plausibly be proven false. First, Carter stated that Unger made “no effort to investigate the drunk driving incident.” The court held this could be factually disproven, as Unger had in fact administered a preliminary breath test that showed the driver was over the legal limit. By administering the test, he had clearly taken an investigatory step, so it would be false to assert that he made “no effort” at all. Second, Carter claimed Unger “made the decision to charge reckless driving.” However, according to the complaint, Unger had not made that decision independently but had done so under direct orders from his supervisors. Both statements were therefore identified by the court as potentially false factual claims, and not protected expressions of opinion.

As for whether the statements were “of or concerning” Unger—a necessary part of the “actionable statement” element of a defamation claim—the court concluded that they were. Even though Carter never used Unger’s name in the press release or video, the materials included surveillance footage that clearly showed Unger interacting with the driver, including the now-publicized “fist bump.” The court found that those who knew Unger would reasonably understand that the statements referred to him. This was sufficient to meet the “of and concerning” standard at the motion to dismiss stage.

The Court held that while initiating disciplinary proceedings against fellow board members is a protected legislative function, legislative immunity does not extend to statements about third parties when those statements are not integral to the legislative act itself. In affirming the lower court’s denial of immunity at the demurrer stage, the Court emphasized that the shield of legislative immunity does not protect defamatory statements that stray from the core purposes of legislative activity. (The Court did note, by the way, that the immunity argument should have been raised by a plea in bar, not a demurrer, since legislative immunity is an affirmative defense.)

The basic facts of the case are as follows. Wahlstrom is an educator and vocal critic of the Suffolk City School Board. She had previously prevailed in a FOIA lawsuit against the Board. Following that litigation, tensions remained high. In 2023, then-chairperson Judith Brooks-Buck initiated disciplinary proceedings against fellow school board member Dawn Marie Brittingham, who was reportedly supportive of Wahlstrom. In the narrative submitted to support the disciplinary complaint, Brooks-Buck alleged that Wahlstrom had committed perjury in her earlier FOIA case. Tyron Riddick, then the chairperson of the school board, issued a “notice” addressing Brittingham’s alleged disciplinary violations and attached Brooks-Buck’s narrative to the notice. Wahlstrom eventually learned of the statement accusing her of perjury and sued Brooks-Buck and Riddick for defamation and defamation per se. The defendants filed demurrers asserting absolute immunity under the doctrines of legislative, sovereign, and statutory (anti-SLAPP) immunity. The trial court overruled those demurrers in part, and the Virginia Supreme Court granted interlocutory review under Va Code § 8.01-670.2(A).

The Supreme Court of Virginia quickly disposed of the soverign immunity and anti-SLAPP claims. As to sovereign immunity, the Court reaffirmed that individual school board members are not immune from intentional torts when sued in their individual capacities (which they were). As for the anti-SLAPP statute, it was premature to say whether immunity existed because the complaint contained allegations sufficient to establish (if eventually proven) that the defendants made the statements with knowledge of falsity or with reckless disregard for the truth. Anti-SLAPP immunity does not extend to such statements.

The question of legislative immunity was a closer call. First of all, was the School Board even engaging in legislative activity? The Court noted that “local legislators, such as members of school boards or other governing bodies, are protected by common law legislative immunity when performing legislative functions.” The Court acknowledged the well-established doctrine that legislators enjoy legislative immunity when acting within the “sphere of legitimate legislative activity.” (See Board of Supervisors v. Davenport & Co., 285 Va. 580, 589 (2013)).

Legislative functions include, but are not limited to, things like “delivering an opinion, uttering a speech, or haranguing in debate; proposing legislation; voting on legislation; making, publishing, presenting, and using legislative reports; authorizing investigations and issuing subpoenas; and holding hearings and introducing material at [those] hearings” (again citing Davenport). So do internal disciplinary proceedings count?

The Court held in the affirmative, noting that the sphere of legitimate legislative activity includes not merely official legislative proceedings but also the essentials of the legislative process: acts that are integral to the sphere of legitimate legislative activity. The Court adopted the reasoning of the U.S. Court of Appeals for the Fourth Circuit in Whitener v. McWatters, 112 F.3d 740 (4th Cir. 1997), recognizing that disciplining a fellow legislator can qualify as a “core” legislative act because it preserves the integrity and functionality of the legislative body. Accordingly, the act of initiating proceedings against Brittingham was, in itself, a protected legislative function.

But that did not end the analysis, because Wahlstrom was not a school board member. “A local legislative body engages in a legislative act when it disciplines one of its members,” the Court held. Legislative immunity therefore attaches to the proceedings, but that immunity does not necessarily extend to statements during the proceedings that relate to a non-member. Legislative immunity protects statements only when they are integral to the act of legislating. Thus, if the statements about the private citizen were integral to the disciplinary proceeding, immunity would likely protect the statements. On the other hand, if the statements about the non-member were “gratuitous and nonessential to the disciplinary proceedings,” legislative immunity would not likely apply as the statement would not be considered a legislative act.

Here, viewing the allegations in the light most favorable to Wahlstrom, the Court found that the trial court did not err by overruling the demurrer. A reasonable jurist could conclude that the statement about Wahlstrom was “gratuitous and nonessential” and therefore fell outside the protective umbrella of legislative immunity.

The opinion describes the facts of the case as follows. Joe Alexander is the former Chief Creative Officer at The Martin Agency. He resigned in late 2017 after the company received multiple sexual harassment complaints against him. These events were widely covered in the media, with various reports describing the nature of the allegations and linking his departure to the resulting scandal. In the wake of Alexander’s resignation, The Martin Agency hired Kristen Cavallo as CEO, a move broadly celebrated as a turning point for the company’s culture and public image. In 2019, the agency reposted on its website three articles that praised Cavallo’s leadership and discussed the broader cultural shift following Alexander’s departure. The articles referenced the prior sexual harassment allegations and described them as part of the backdrop to Cavallo’s hiring and leadership. One article referred to Alexander as having “behaved badly,” and another quoted Cavallo as saying, “Don’t waste a good crisis,” in reference to the company’s transformation.

None of the articles claimed that the sexual harassment allegations against Alexander were true. Nevertheless, Alexander sued the agency, Cavallo, and its parent company for defamation, claiming that although the articles didn’t make that claim expressly, they described the allegations in a way that implied they were true. The trial court sustained the defendants’ demurrer, finding that the statements were not “capable of a defamatory meaning” and that they were “substantially accurate” in reporting that allegations had been made. The Court of Appeals affirmed.

Alexander acknowledged that the articles did not defame him directly but attempted to frame his case as one of defamation by implication. The court pointed out, however, that to be actionable, any defamatory implication must be “reasonably drawn from the words actually used.” (See my earlier discussion of Webb v. Virginian-Pilot Media Companies). The court emphasized that innuendo cannot “introduce new matter, nor extend the meaning of the words used, or make that certain which is in fact uncertain.” In other words, plaintiffs cannot rely on strained interpretations or emotionally driven readings of otherwise accurate reports to support a defamation claim. If the only reasonable interpretation of a given statement is one that is substantially true, then the statement will not be actionable. And that was the case here: Alexander’s own complaint acknowledged that allegations of sexual harassment had been made against him. While the articles at issue commented on the scandal and praised Cavallo’s leadership in its aftermath, they did not assert that Alexander actually committed the misconduct he had been accused of.

The court distinguished the case from Pendleton v. Newsome, where school officials issued statements that could be reasonably interpreted to imply that a mother (the plaintiff) bore responsibility for her child’s death. In Pendleton, unlike in Alexander’s case, the plaintiff was the “sole and unmistakable target of any innuendo.” By contrast, the plaintiffs in Webb and Alexander were not the subjects of any reasonably-drawn defamatory implications. Webb and Alexander asked the court to draw inferences that weren’t justified by the language actually used by the defendants, using strained interpretations. For that reason, their defamation claims were dismissed.

The court also noted that the statements at issue were literally true (and truth defeats a defamation claim). It discussed the federal case of Dangerfield v. WAVY Broadcasting, Inc., 228 F. Supp. 3d 696 (E.D. Va. 2017), where the court held that reporting on the existence of allegations is not defamatory if the report is accurate in describing the fact that the allegations were made. In Dangerfield, the plaintiff sued after being described in a news report as having been “accused of rape.” Although he denied the allegation, the court dismissed the suit because the reporting accurately described the contents of a warrant. The same reasoning applied in Alexander: the reporting on the existence of sexual harassment complaints, while potentially damaging to Alexander’s reputation, was not false and therefore was not actionable.

The Alexander decision is a clear reaffirmation of protections afforded to journalists and publishers who report on public controversies, particularly when doing so in a manner that does not overstate facts or assert unproven conclusions. It is also significant for employers who, like The Martin Agency, face public scrutiny and must respond by explaining organizational changes, sometimes in connection with allegations made against former personnel. Courts applying Virginia law will not stretch the meaning of words beyond their “plain and natural” interpretation to find defamatory meaning where none exists. The burden remains on the plaintiff to show that any implied defamatory meaning is both reasonable and grounded in the actual text.

As discussed earlier on this blog, Virginia law recognizes a qualified privilege for statements made to law enforcement about suspected crimes. That means a speaker is generally shielded from defamation liability for such statements unless the plaintiff can show by “clear and convincing” evidence that the privilege has been lost or abused. This could happen if, for example, (1) the statements were made with knowledge that they were false or with reckless disregard for their truth; (2) the statements were communicated to third parties who have no duty or interest in the subject matter; (3) the statements were motivated by personal spite or ill will; (4) the statements included strong or violent language disproportionate to the occasion; or (5) the statements were not made in good faith.

So the key difference between these two defamation cases was that the plaintiff was able to demonstrate malicious conduct in only one of them.

Massie v. Ulta Beauty

In Massie, the plaintiff, Rita Massie, was arrested and charged with grand larceny after an employee of Ulta Beauty mistakenly identified her as the perpetrator seen in a store surveillance video. The charges were later dismissed when police realized the woman in the video wasn’t Massie and that Massie had never even been inside an Ulta store.

Massie sued for defamation, arguing that Ulta’s employee falsely accused her to the police, damaging her reputation and causing emotional distress. The trial court sustained a demurrer and dismissed the case, holding that Ulta’s report to police was protected by qualified privilege and that Massie had failed to allege facts suggesting Ulta did not act in good faith. Even assuming Ulta got the identification wrong, there were no allegations of hostility, prior disputes, or any reason to believe the mistake was anything more than a mistaken judgment based on surveillance footage. Nor did Massie allege what, exactly, was said to the police or how Ulta had come to identify her by name. In short, the court held that the statement was protected by qualified privilege and that there were no allegations that the defendants did anything to abuse that privilege. Therefore, the case was dismissed.

The Court of Appeals affirmed the dismissal but on different grounds. It did not even reach the question of qualified privilege because it found the plaintiff failed to allege a prima facie case of defamation. Defamation liability requires a certain level of intent. Plaintiffs who are not public officials or public figures must show not only that the defendant made a false statement but “that the defendant either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based.” (See Opinion at 12). Massie failed to do this. According to her own complaint, neither Ulta nor its employee had any prior interactions with her. The pleading was thus insufficient to establish that the defendants made a false accusation knowingly or negligently.

Kidd v. Bazazan

In Kidd, by contrast, malice was both alleged and proven. There, the defendant, Matthew Kidd, sent an email to the Bedford County Sheriff alleging that “underage girls” were being flown into Smith Mountain Lake Airport, an airport owned by plaintiff Mohamad Bazazan, for “sex parties.” The FBI got involved and took the claim seriously enough to investigate but quickly closed the matter. Bazazan and the airport sued Kidd for defamation and the jury awarded $150,000 in combined damages.

As in the Massie case, this defamation claim was based on a false statement made to the police. The reason Bazazan won $150,000 while Massie got nothing has to do with the fact that unlike the Massie case, which involved an innocent mistake, Bazazan and Kidd had a long and acrimonious history, which supported the jury’s finding that the statement at issue was not an innocent mistake but an intentional smear campaign designed to hurt Bazazan.

Kidd lived near the airport owned and operated by Bazazan. The conflict began when Bazazan agreed to build a hangar at the airport to house an aircraft owned by Dan Dunkle, a former neighbor of Kidd. Kidd opposed the hangar, citing concerns about safety, air traffic, and noise. Kidd got increasingly vocal in his opposition, sometimes complaining to county officials twice a day. He accused Bazazan of engaging in economic crimes, of poisoning Kidd’s dog, and of planning to blow up the Smith Mountain Lake dam. Text messages showed he wanted “to piss [Bazazan] off,” “unleash hell” on Bazazan, and that he once proposed felling trees across the airport’s exit during a cookout to trap guests.

After hearing this evidence, the jury found that the sex-trafficking claim was knowingly false or made with reckless disregard for the truth and awarded $150,000 in damages. The trial court entered judgment based on the jury’s verdict.

On appeal, the Court of Appeals affirmed, emphasizing the evidence of actual malice. Unlike in Massie, the plaintiff in Kidd presented a wealth of evidence showing Kidd’s deep-seated animosity toward Bazazan. The court did not address the issue of qualified privilege directly. Rather, it held that Bazazan had proven malice sufficient to recover both compensatory and punitive damages (which would also be sufficient to defeat qualified privilege).

Qualified privilege is not a license to lie or to weaponize the criminal justice system against personal enemies. The law immunizes well-grounded, good-faith reports to the police, even if they are mistaken. Intentional smear campaigns, on the other hand, are not entitled to protection.

The basic facts of the case go like this: Ian Wesley Bennett and Katerina Lundh were coworkers working under a federal government contract. In August 2022, the two attended a business trip to San Francisco. According to the complaint, an incident occurred after dinner one evening in which Lundh—allegedly intoxicated—bumped into Bennett. He claims to have playfully nudged her, after which she slapped him across the face. Later, he made a comment about her personal history, prompting a second slap. Hours later, at a bar with colleagues, a coworker confronted Bennett, accusing him of grabbing Lundh and threatening to report him. That same accusation was apparently referenced in subsequent disciplinary action and ultimately contributed to Bennett’s removal from the government contract.

Bennett suspected that Lundh had spread false rumors about him—though he couldn’t point to any particular statement or publication. His lawsuit, filed in Fairfax County Circuit Court, alleged defamation but failed to include the specific words Lundh allegedly used. He alleged, “[u]pon information and belief, Lundh published false and defamatory statements of and concerning Bennett” but he did not describe those statements with any specificity. The trial court directed him to file a bill of particulars specifying the defamatory statements, their speaker, publication date, and the recipients of the communication, but Bennett did not comply. The trial court then sustained a demurrer due to Bennett’s failure to plead the exact words of the statements alleged to be defamatory and dismissed the case with prejudice. The Court of Appeals affirmed.

The court identified several reasons for the rule. First and foremost, it enables courts to determine at the pleadings stage whether the words are legally actionable. Trial courts wouldn’t be able to dispose of invalid claims on demurrer if they don’t know what words are claimed to be defamatory. Whether a particular statement is potentially actionable is a question of law for the court (not the jury) to decide, and the exact words of the statement in question are necessary for the trial court to make that determination. The court pointed out that several important legal determinations—whether a statement is capable of a defamatory meaning, whether it’s opinion or fact, and whether actual malice has been alleged (for public figures)—are often resolved at the demurrer stage. That’s only possible if the court is given the actual words to evaluate.

Second, requiring plaintiffs to plead the exact words at issue puts defendants on clear notice of what they’re being accused of saying. Defendants need to have fair notice of the claim so they can adquately prepare a defense.

Some courts have offered as a third justification that the rule is necessary to prevent repeated litigation over the same statement. Judgments may not have a preclusive effect if the exact words of the statement are not known. (The Court of Appeals cited an old English case from 1814 as an example, so I suppose this isn’t a rationale used very often).

A common tactic in federal court is to file a defamation case “upon information and belief” while hoping to substantiate the claim through the discovery process. This doesn’t work in state court. It’s not enough to plead the “gist” of the statement and hope to discover the exact words at a later time. Plaintiffs must demonstrate a viable claim before any entitlement to discovery arises.

Although the exact words of the statement should be included in the original complaint, Virginia courts may allow a plaintiff to clarify or supplement a vague defamation complaint by ordering a bill of particulars. A bill of particulars that properly identifies the verbatim statement will suffice to survive a demurrer if the statement is deemed actionable. In this case, the trial court gave Bennett an opportunity to do that (i.e., identify the particulars of the statement claimed to be defamatory) but he failed to file a bill of particulars.

For these reasons, the Court of Appeals held that the trial court was well within its discretion to dismiss the case with prejudice.

Earlier this week, the Virginia Court of Appeals decided Brown v. Grundy, Record No. 1467-23-4, which involved a challenge to a defamation verdict of $2 million (reduced by trial court to $1.85 million). The case centered on a letter sent by Charles H. Brown, III, D.D.S., to patients of his dental practice, explaining the supposed reasons for the termination of his associate, Dr. Richard B. Grundy. On December 4, 2018—two days before officially terminating Dr. Grundy’s employment—Dr. Brown sent a letter to patients in which he offered an explanation that included the following:

The Virginia Board of Dentistry and the State of Virginia have guidelines and regulations that govern the practice of dentistry in this state. Dentists that do not follow those guidelines can be disciplined, fined and even have their ability to practice dentistry restricted or revoked. Unfortunately, Dr. Grundy has refused to adhere to some of those guidelines/regulations and the board of dentistry is currently looking into those issues. This has created significant problems and potential liability for the practice. Dr. Grundy had been advised on this but has continued to refuse to adhere to certain guidance specifically given to me by the Board of Dentistry regarding his actions and lack of compliance. I have no explanation for his refusal and he would not provide one to me. The board may eventually issue a decision regarding this matter that may be publicly available.

Dr. Grundy was the primary dentist for approximately 750 patients at that time. He sued Dr. Brown for defamation per se, claiming the letter contained false and damaging statements about his professional conduct. He prevailed. Dr. Brown took the case to the Court of Appeals, arguing that several of the statements presented to the jury were non-actionable as a matter of law. The court disagreed and upheld the verdict, finding that all four challenged statements were both provably true or false and that they contained the requisite “sting” to Dr. Grundy’s reputation as a dentist to support the verdict.

“Unfortunately, Dr. Grundy has refused to adhere to some of those guidelines/regulations and the board of dentistry is currently looking into those issues.”

Dr. Brown argued that this was a statement of opinion. Not so, held the court. The statement implies that Dr. Grundy violated professional rules and is under investigation, which are assertions of fact. The statement doesn’t merely express an opinion about whether guidelines were violated; rather, it focuses on Dr. Grundy’s refusal to adhere to them. The court found this capable of being proven true or false and noted its serious implications for a professional’s reputation. The statement also “insinuates that Dr. Grundy had flouted direct guidance from the Board,” making the statement actionable as implied defamation.

“I have no explanation for his refusal and he would not provide one to me.”

Dr. Brown challenged this statement for its lack of defamatory sting, arguing that it reflected only a bit of friction between the two dentists and did not rise to the level of actionable defamation. The court disagreed, emphasizing the need to consider the full context of the statement. The statement came on the heels of claims that Dr. Grundy repeatedly refused to follow Board guidance, suggesting that Dr. Grundy was both noncompliant and evasive, reinforcing an image of professional irresponsibility.

“In addition to the reasons above, the termination is also due, in part, to complaints. If Dr. Grundy has said anything to you in the office or on the phone, that makes you uncomfortable, or that you consider inappropriate, please notify a manager or me so that we can confidentially and privately document the interaction.”

Dr. Brown’s argument here was that the statement was essentially too vague to be actionable–that the patients who received the letter weren’t given any information about what the complaints might be about, so the statement lacked defamatory sting. Here again, the court looked to principles of implied defamation in concluding the jury instruction was proper. Although phrased conditionally, the context implies prior patient complaints about inappropriate behavior by Dr. Grundy. The court found that a reasonable reader would infer that there were existing concerns about misconduct, and that these complaints were credible enough to justify termination. These implications could seriously damage a dentist’s professional standing, satisfying the “sting” requirement.

“There is some additional information that I am required to give to you. The [D]epartment of Health and Human Services OCR oversees HIPAA and the protection of patients’ private information. There are also now issues related to Dr. Grundy’s handling of his former patients’ protected personal and private information.”

This statement was also determined by the Court of Appeals to be actionable, as it implied that Dr. Grundy mishandled confidential patient information, potentially in violation of HIPAA. The court held that such conduct would undoubtedly be prejudicial to a dentist’s reputation and is a provable fact, not mere opinion. It was not merely a vague concern but carried the insinuation of misconduct serious enough to involve federal oversight. And it was worded in such as way as to allow it to be reasonably interpreted as saying that the Department of Health and Human Services had raised issues with Dr. Grundy’s handling of patients’ information, which was a matter of fact and not opinion.

Ultimately, he Court of Appeals of Virginia affirmed the trial court’s judgment, finding that the lower court had properly fulfilled its “gatekeeping function” in determining that all four statements were actionable as a matter of law. Each statement was either a direct accusation or carried a defamatory implication that could be proved true or false and had sufficient reputational harm to be classified as defamation per se.