The Supreme Court of Virginia granted a motion filed by the Virginia Press Association and other media organizations to be a friend of the court in a case involving The Virginian-Pilot. Attorneys on behalf of the VPA and eight media organizations on June 28 filed a motion to participate as amicus curiae in the case Philip D. Webb v. Virginian-Pilot Media Companies LLC. On July 30, the court granted the motion despite objections from the plaintiff. "Upon consideration whereof, the motion is granted and the brief amici curiae is considered filed," the court document reads.

1. IN THE SUPREME COURT OF VIRGINIA
RECORD NO. 122024
PHILLIP D. WEBB,
Appellant,
v.
VIRGINIAN-PILOT MEDIA COMPANIES, LLC
Appellee.
BRIEF AMICUS CURIAE OF VIRGINIA PRESS ASSOCIATION, ET AL.
Craig Thomas Merritt (VSB No. 20281)
cmerritt@cblaw.com
Christian & Barton, L.L.P.
909 East Main Street, Suite 1200
Richmond, Virginia 23219-3095
Telephone: (804) 697-4100
Facsimile: (804) 697-4112
Counsel for Amici Curiae

2. TABLE OF CONTENTS
Table of Authorities .................................................................................. iii
Statement of the Case .............................................................................. 1
Statement of Facts .................................................................................... 5
Standards of Review ............................................................................... 13
Summary of Argument ............................................................................ 14
Argument and Authorities ....................................................................... 16
I.
Webb’s Claim is a Prohibited False Light Invasion of Privacy
Claim Disguised as Defamation by Implication .......................... 16
A. The False Light Tort is Prohibited in Virginia......................... 16
B. Webb’s Claim is Not for Defamation but for False Light
Invasion of Privacy ............................................................... 18
II.
The Circuit Court Did Not Err in Granting the Pilot’s Motion to
Strike Because Actual Malice Was Not Established (Assignment
of Error I) ................................................................................... 23
A. The Actual Malice Standard Was Properly Applied to Webb’s
Claim .................................................................................... 23
1. Webb Conceded That Actual Malice Controls .................. 23
2. The Circuit Court Correctly Characterized Webb As a
Public Official (Assignment of Error II) .............................. 24
3. Actual Malice Must Be Proven Where Substantial Injury
to Reputation is Not Apparent .......................................... 26
B. Webb Did Not Prove Actual Malice ....................................... 29
i

3. III.
The Circuit Court’s Judgment Should be Affirmed on Alternative
Grounds Because The Pilot Did Not Intend or Endorse the
Defamatory Implication Advocated by Webb
(Assignment of Error I) .............................................................. 33
A. Virginia Law Requires that the Defendant Intend or Endorse an
Implied Defamatory Meaning ................................................ 33
B. Although it Reached the Correct Outcome, the Court Below Did
Not Correctly Apply the Rule that a Defamatory Implication Be
Intended or Endorsed ........................................................... 36
C. The Court Should Reaffirm the Rule that a Defamation by
Implication Plaintiff Must Prove That the Publisher Intended or
Endorsed the Allegedly Defamatory Implication .................... 37
Conclusion .............................................................................................. 40
ii

4. TABLE OF AUTHORITIES
Cases
Page
Bose Corp. v. Consumers Union, 466 U.S. 485, 104 S.Ct. 1966, 80 L.Ed.
2d 523 (1984) ...................................................................................... 29
Carwile v. Richmond Newspapers, Inc., 196 Va. 1, 82 S.E.2d 588 (1954)
.................................................................................................. 22, 33, 34
Chapin v. Knight-Ridder, Inc., 993 F.2d 1087 (4th Cir. 1993) .................... 35
Claiborne v. Strange and Halifax Gazette Publishing Co., Case No.
C005000185 (Circuit Court, Halifax County 2006) ................................. 20
Compton v. Foster, 82 Va. Cir. 279; 2011 Va. Cir. LEXIS 173 (Circuit Court,
Russell County 2011) ............................................................................ 20
Frizzell v. Media General, Inc., 71 Va. Cir. 163, 2006 Va. Cir. LEXIS 76
(Circuit Court, City of Roanoke 2006) .................................................... 20
Garrison v. Louisiana, 379 U.S. 64, 74 (1964) .......................................... 35
Gazette, Inc. v. Harris, 229 Va. 1, 325 S.E.2d 713 (1985) ............ 13, 26, 28
Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789
(1974) .............................................................................................. 26, 27
Government Micro Resources, Inc. v. Jackson, 271 Va. 29, 624 S.E.2d 63
(2006) .................................................................................................... 31
Hanks v. WAVY Broadcasting, L.L.C., Civil Action No. 2:11cv439, 2012
U.S. Dist. LEXIS 15729, 40 Med. L. Rep. 1424 (E.D. Va. 2012) ...... 20, 21
Hatfill v. The New York Times Company, 416 F.3d 320 (4th Cir. 2005) .... 35
Jackson v. Hartig, 274 Va. 219, 645 S.E.2d 303 (2007) ............................ 27
Jordan v. Kollman, 269 Va. 569, 612 S.E.2d 203 (2005) .......................... 24
Lord Byron v. Johnston, 2 Mer. 29, 35 Eng. Rep. 851 (1816) ................... 16
iii

5. Lucente v. Media General Operations, Inc. et al., Case No.
820CL060000109-00 (Circuit Court, City of Waynesboro 2006) ............ 19
New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d
686 (1964) ....................................................................................... 27, 35
Perk v. Vector Resources, 253 Va. 310, 316, 485 S.E.2d 140, 144 (1997)
.............................................................................................................. 22
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89
L.Ed.2d 783 (1986) ................................................................................ 35
Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 362 S.E.2d 32
(1987) ........................................................................................ 13, 24, 27
Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597
(1966) ....................................................................................................... 26
Schnupp v. Smith, 249 Va. 353, 457 S.E.2d 42 (1995) ............................. 35
St. Amant v. Thompson, 390 U.S. 727, 88 SCt. 1323, 20 L.Ed.2d 262
(1968) .................................................................................................... 27
Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456
(1967) ....................................................................................................... 17
WJLA-TV v. Levin, 264 Va. 140, 564 S.E.2d 383 (2002) .......................... 16
Other Authorities
R. Sack, Sack on Defamation: Libel, Slander and Related Problems (4th
ed. 2013) ................................................................................... 24, 33, 36
B. Sanford, Libel and Privacy (2d ed. 2013) .................................. 18, 26, 28
R. Smolla, Law of Defamation (2d ed. 2002)........................................ 16,18
Restatement (Second) of Torts § 652E (1997).......................................... 16
iv

6. Virginia Model Jury Instructions .......................................................... 27, 29
Webster’s Third New International Dictionary of the English Language
(Unabridged)(1971) ............................................................................... 34
v

7. STATEMENT OF THE CASE
Phillip D. Webb (“Webb”), an Assistant Principal at Oscar Smith High
School, is the father of Kevin Webb, a track athlete who was charged with
felony malicious wounding and assault, and later convicted of
misdemeanor assault and trespass, after joining his older brother in the
beating of another student’s father. Great Bridge High School, which Kevin
Webb attended at the time of his crime, did not inhibit him from pursuing his
athletic endeavors or impose any other discipline.
Webb claimed that he suffered reputational injury when The
Virginian-Pilot (“Pilot”), covering the sentencing hearing for Kevin Webb
and his brother, accurately reported a statement by the school system’s
public information officer, Tom Cupitt:
State regulations allow schools to suspend or expel a student if they
have been charged with a crime that would be a felony for an adult.
Cupitt said a pending felony charge can net a Chesapeake student
punishment ranging from suspension to expulsion. Cupitt was
unaware of the “Bum Fight Klub” but said the school division takes
bullying seriously. He added that Kevin Webb “did not get preferential
treatment because of his dad’s position.” Phil Webb declined to
comment about the case.
“Jail, community service issued in attack on Chesapeake family,” The
Virginian-Pilot, December 18, 2009 (“Article”), Joint Appendix (“J.A.”) at 95,
96 (italics added).
1

8. Webb asserts that this statement disassociating him from the
disciplinary decision that Great Bridge High School made about his son,
read in the context of the entire Article, actually means the opposite:
. . . the article’s facially true quotation that “Kevin Webb ‘did not get
preferential treatment because of his dad’s position,’” . . . falsely
implied exactly the opposite, i.e., that Webb did improperly secure
preferential treatment for Kevin.
Opening Brief of Appellant (“Webb Br.”) at 4.
The trial record reveals no evidence (but relentless argument by
Webb’s counsel) that the Pilot or its reporter, Louis Hansen (“Hansen”),
intended or endorsed the inference that Webb had attempted to secure
preferential treatment for his son. In fact, Hansen’s investigation found no
source stating that Webb used his position to influence his son’s discipline,
and the Article accurately quoted school spokesman Cupitt to say that no
such connection existed. Having transformed that literally true quotation
from an official source into a contrary implied meaning that is obviously
false, Webb argues that this reversal of meaning proves the essential
elements of falsity and fault:
At trial, Hansen admitted that when he wrote the article he did not
think it was possible for Webb to have caused the school system to
give preferential treatment to his son. J.A. 660/11-14. This testimony
indicates the reporter had learned during his investigation that his
implication was false yet nonetheless proceeded to publish it.
2

9. Webb. Br. at 5 (italics in original)(underscoring added). See also Webb Br.
at 16, 19 (employing the rhetorical device of characterizing Webb’s
interpretation of the Article as “his [Hansen’s] defamatory statement”).
Webb literally claims that he has proven both falsity and actual malice, not
by offering evidence that the Pilot or its reporter intended or endorsed the
later-asserted meaning, but through his ipse dixit that simply assigns
authorship of the implication to Hansen.
Applying this theory, Webb obtained a $3 million jury verdict, which
the court below properly set aside. The Circuit Court’s ruling should be
affirmed.
The amici curiae1 have a compelling interest in the outcome of this
appeal. They are engaged daily in the investigation of matters of public
concern that include the performance of our public institutions -- including
1
The amici curiae are the Virginia Press Association (“VPA”); the Virginia
Association of Broadcasters (“VAB”); the Associated Press (“AP”); World
Media Enterprises, Inc. (publisher of Richmond Times-Dispatch, The Daily
Progress (Charlottesville), the Bristol Herald-Courier, The News and
Advance (Lynchburg), the Culpeper Star-Exponent, the Danville Register &
Bee; The News-Virginian (Waynesboro), and The Roanoke Times); LIN
Television Corporation d/b/a WAVY-TV and WVBT-TV; Shenandoah
Publications Inc. (publisher of The Free Press (Woodstock); Snowy
Mountain Publishing Inc. (publisher of The Recorder (Monterey); Media
General, Inc., d/b/a WSLS-TV; and WP Company LLC d/b/a The
Washington Post. The newspaper publishers and broadcasters collectively
reach millions of Virginians daily. The VPA’s 225 members include daily
and weekly newspapers based throughout Virginia. The VAB is an
association of 197 broadcasters based in Virginia.
3

10. law enforcement agencies, courts and public schools. It is a core function
of news media to look into, and report, the facts when an assertion is made
that these institutions are treating citizens unfairly. Here, two young men
were involved in a series of altercations. One, the star athlete son of a
public school official, was criminally charged yet appeared to suffer no
consequence within the school system. The other, a special education
student without any family connection to the schools, suffered a less
favorable outcome at the hands of that same school system. The Pilot did
precisely what one would expect of vigilant journalists. They asked obvious
questions, received answers, and reported the answers accurately.
The amici curiae respectfully urge this Court to recognize the
troublesome nature of this case: a prominent person successfully obtained
a large jury verdict, not because the Pilot article asserted a defamatory
implication, but because he effectively argued that it was improper merely
to refer to him in a factually accurate story about the discipline of his son.
The Court should take this opportunity to state clearly that media
defendants, when they accurately report true facts on matters of public
concern, are entitled to protection from claims of libel by implication unless
the plaintiff establishes that the asserted implied defamatory meanings are
intended or endorsed by the publisher.
4

11. STATEMENT OF FACTS
The Pilot published the Article on December 18, 2009. See J.A. 9597. The Article appeared under the byline of reporter Louis Hansen on
page A1, accompanied by a sidebar under the words “the case,” and
jumped to page A8 in the midst of its fourth paragraph.
The Pilot referenced Webb in the page A1 sidebar: ‘“This case has
been . . . a nightmare,’ said the parent of a former Great Bridge High
School student, talking about a dispute involving her son and another
student, the son of an assistant principal at Oscar Smith High.” J.A. 95.
The body of the Article references Webb in four of its thirty
paragraphs (italics added to highlight references to Webb):
(1) The second paragraph reads: “Kevin Webb, a track star, regularly
shoved and taunted Bristol, a special education student. One
night, Bristol said, he and a group of friends drove to the Webbs’
home on Natchez Trace. Phil Webb, Kevin’s father and an
assistant principal at Oscar Smith High School, turned them
away.” Article, J.A. 95.
(2) The twelfth paragraph reads in part: “The Webb brothers were
pole vaulting stars at Great Bridge, where their father once
5

12. coached. Phil Webb guided a young Lawrence Johnson, future
Olympic silver medalist in the pole vault, in high school.” Id., J.A.
96.
(3) The eighteenth paragraph, included in a description of the
confrontation at the Webb home, states in part: “About 9 p.m. Nov.
5, 2008, Patrick confronted Webb and his father.” Id.
(4) The twenty-fourth paragraph reads: “State regulations allow
schools to suspend or expel a student if they have been charged
with a crime that would be a felony for an adult. Cupitt [identified
in the Article as a school division spokesman] said a pending
felony charge can net a Chesapeake student punishment ranging
from suspension to expulsion. Cupitt was unaware of the ‘Bum
Fight Klub’ but said the school district takes bullying seriously. He
added that Kevin Webb ‘did not get preferential treatment because
of his dad’s position.’ Phil Webb declined to comment about the
case.” Id.
Webb concedes that each of the above facts is true, and was accurately
reported by the Pilot. When asked on cross-examination to locate the
content in the Article that supported his testimony that the Pilot had
accused him of “brokering a deal” for his son, Webb testified: “No.
6

13. Because those are my words to your article.” Trial Transcript (“Tr.”) at 85:
9-13 (Webb), J.A. 638.
Hansen testified that he knew school spokesman Cupitt from prior
work, that they had spoken before, and that he asked Cupitt if Kevin Webb
obtained preferential treatment because of his father. Tr. at 102:8-23
(Hansen), J.A. 653. Cupitt specifically told Hansen that Kevin Webb did not
get preferential treatment because of his father’s position. Id. at ln. 18-22.
Hansen’s reason for asking the question was simple:
Q. And why did you ask Mr. Cupitt the question about whether
preferential treatment had been provided?
A. Well, the son of a senior school’s administrator had been
charged with malicious wounding, a felony, and the school said it had
the option to suspend or expel a student in such case and the school
system did nothing.
So I asked whether or not there was any special treatment that
Kevin Webb received because of his father’s position.
Tr. at 104:4-13 (Hansen), J.A. 655. The Pilot simply published what Cupitt
told Hansen. Id. at ln. 15-16.
Webb elicited no evidence that Hansen investigated the facts in a
negligent manner, and admitted so:
Not once in the trial did Webb attempt to prove or base liability on
negligent investigation. If anything, Hansen’s investigation was
exceptionally thorough, as was evidenced by Pl. Tr. Ex. 4, Hansen’s
40 pages of interview notes.
7

14. Plaintiff’s Brief in Opposition to Defendant’s “Bench Brief Regarding the
Law of Defamation by Implication and Actual Malice,” (“Webb Post-Trial
Br.”) at 20, J.A. 474, 493-94 (arguing that the verdict was based on
constitutional actual malice alone); see Plaintiff’s Ex. 4 (reporter notes),
J.A. 901-940.
No testimony in the record suggests that Hansen knew any fact in the
Article concerning Webb was false, before or after publication.2 Nor is
there evidence that facts were known to Hansen that conferred upon him
any awareness that any reported fact was probably false. Webb’s “proof”
of both falsity and fault (actual malice), was based on: (1) Hansen’s ready
acknowledgement that he never intended or endorsed the “afterdiscovered” implication alleged by Webb; (2) Webb’s testimony that
Hansen, during his failed effort to interview Webb, warned that the story
would be “one-sided,” Tr. at 56:9-11 (Webb), J.A. 622; and (3) Hansen’s
allusion to a well-known line from the movie Apocalypse Now (“I love the
smell of napalm in the morning”) in an email to a colleague after Webb
threatened him with arrest. Plaintiff’s Ex. 3 (Hansen December 17, 2009,
email), J.A. 900.
2
It is undisputed that all material facts reported in the Article are true.
8

15. Webb crafted his pleadings to suggest that the Article’s evenhanded
statement that “Phil Webb declined to comment about the case” was
evidence of the Pilot’s intention to attribute wrongdoing to Webb:
4.
Moreover, the article was a deliberate and/or recklessly
negligent distortion of the events described therein, because the
article intentionally implied wrongdoing by the plaintiff and falsely
implied that the plaintiff had been questioned about a “case” involving
his ethics and had declined to comment to protect himself. There
never was any wrongdoing and the plaintiff had never been
questioned about the unethical conduct. The article left the false
impression that the plaintiff had something to hide which reflected
adversely on his fitness to perform the duties of his calling when such
was false.
Second Amended Complaint ¶ 4, J.A. 89 (italics added). Webb’s testimony
at trial, however, showed that the reporter did approach Webb after his
sons’ sentencing hearing and sought an interview about the proceedings.
Tr. at 55:19-56:2 (Webb), J.A. 621-22. Webb brushed Hansen off,
threatening to have him arrested, then referred Hansen to his attorney
when the reporter persisted. Id. at 56:9-19, J.A. 622. Both Webb’s wife
and the Webbs’ attorney declined to give an interview. Tr. at 113:10-114:5
(Hansen), J.A. 664-65. Thus, Webb knew to a certainty when he filed his
lawsuit that: (1) his own refusal to be interviewed was reported accurately
in the Article, and (2) the references in his pleading to questions (or the
absence of questions) about a “case” involving his “ethics” were an
invention. Webb knew that Hansen had not questioned him about that
9

16. subject or any other subject, not because of Hansen’s lack of diligence, but
because Webb had refused to talk with Hansen at all. The Pilot noted that
the evidence at trial did not support the artful description in the Second
Amended Complaint, but Webb did not concede the point. Instead, he
doubled down on his position, recasting the meaning of his pleading and
intensifying his ad hominem attack:
The plaintiff has never contended Hansen’s failure to interview the
Webbs was a negligent omission. Plaintiff has always asserted that
Hansen did try to interview Phil Webb after the sentencing, but only a
(sic) part of an effort to catch him off guard and elicit either an
explicitly incriminating quote, or an implicitly incriminating “no
comment.” Plaintiff has always contended Hansen engaged in crafty
ambush journalism and skillfully achieved his desired incendiary
effect. Plaintiff’s case does not rest, as Media Companies suggests,
on a combination of ill-will evidence and negligent investigation
evidence.” Def. Brf., p. 13. Rather, it rests on clear and convincing
evidence of knowledge of falsity and reckless disregard of the truth.
Webb Post-Trial Br. at 20-21, J.A. 493-94 (italics added).
Webb repeatedly attacked the editorial judgment of the Pilot, arguing
that it had no business making reference to him in the Article. The opening
statement and closing argument on behalf of Webb were bookends. In
opening, counsel stated that “the Pilot dragged Phil Webb’s name into the
case,” Tr. (May 21, 2012) at 29:20-21, and asserted Webb’s central point:
Our point is that this article gratuitously raised the subject, raised the
question of whether Mr. Webb pulled strings, took advantage of
connections that he had as an assistant principal in order to get
10

17. preferential treatment for Kevin so that Kevin would be able to stay in
school and play sports.
Id. at 36:9-14 (italics added). Webb reinforced this theme in closing
argument: “This case is here today because the Virginian-Pilot crossed
that line when it wrote this article and dragged Phil Webb’s name into an
article about a crime that he was not a participant in . . .” Tr. at 598:25599:3, J.A. 792-93 (italics added).
Webb elicited testimony from school officials who vouched for his
continued good reputation, but expressed unhappiness with the mere
mention of his name in the Article.3 Joseph Habit, a teacher, testified that
he was “dumbfounded” by the Article bringing up the subject of whether
Kevin Webb got preferential treatment because of his father’s position. Tr.
at 252:14-21 (Habit), J.A. 728. Lee Fowler, a middle school principal,
testified that bringing up the subject made him “angry,” and that “questions
that were asked” implied wrongdoing. Tr. at 218:15-25 (Fowler), J.A. 706.
Joanna Bounviri testified that she did not draw from the article the
defamatory inference that Webb improperly influenced his son’s discipline,
Tr. at 231:14-20 (Bounviri), J.A. 717, and instead criticized the Article
3
Webb gave a lengthy answer to a question on this point (which the court
ordered the jury to disregard), complaining that he had no reason to be
mentioned at all. Tr. at 64:2-10, J.A. 624.
11

18. because she “did not see the relevance for mentioning him or his position.”
Tr. at 231:12-13, J.A. 717.
The subject matter of the Article was student misconduct and its
consequences. It was undisputed that both the Commonwealth and the
local public school system had written policies permitting a range of
disciplinary consequences for students charged with or convicted of offcampus crimes. It was undisputed that Great Bridge High School officials
administered no discipline to Kevin Webb as a consequence of his trip
through the criminal justice system. It was undisputed that the same
officials offered Patrick Bristol, whose father was beaten by Kevin Webb,
the opportunity to finish his high school career at another school.
When examined at trial, school officials expressed disbelief that
parents might have a legitimate question if they observed two different
students (regardless of their respective parents’ status) receiving disparate
disciplinary treatment:
Q. If a student – for example, if a student has been disciplined for
using his cell phone in class, is it not a legitimate question for that
student or that student’s parent to ask, Why am I getting in trouble
when your son didn’t get into trouble for going over to a (sic) another
student’s house and assaulting that student’s parent?
A. No. It wouldn’t be fair.
12

19. Tr. at 203:14-21 (Dugan), J.A. 698. See also Tr. at 227:11-228:5 (Fowler),
J.A. 715-16 (stating in response to a similar question that he did not “see
the logic” in the question and having “a problem with the whole concept.”).
As the Pilot ultimately learned through discovery in this case, the
school division had a de facto policy of putting students charged with
felonies on a “contract.” It allowed the student to continue in school without
further consequence unless the guidelines were violated. Tr. at 358:9359:25 (Vaughan), J.A. 782-83. School officials had never disclosed the
policy to Hansen.
STANDARDS OF REVIEW
This Court conducts an independent evaluation of the entire record to
determine whether New York Times malice has been established by clear
and convincing proof. Gazette, Inc. v. Harris, 229 Va. 1, 19, 325 S.E.2d
713, 727 (1985).
This court reviews the determination of a plaintiff’s status as a public
official de novo, as it is a federal constitutional question. Richmond
Newspapers, Inc. v. Lipscomb, 234 Va. 277, 284, 362 S.E.2d 32, 35
(1987).
13

20. SUMMARY OF ARGUMENT
Webb’s claim is denominated as an action for defamation by
implication. In fact, it is typical of numerous claims filed recently in the
state and federal courts of Virginia that are prosecuted under the rubric of
“defamation by implication” but are in fact claims for “false light invasion of
privacy.” This Court has wisely rejected the amorphous “false light” tort.
Although libel by implication is well recognized in Virginia, there is no
authority for a “broad” application of the doctrine. This Court has never
distorted the boundaries of defamation law to the point that a party may
stretch rules of defamatory meaning, falsity and fault to evade the
prohibition on false light claims.
The First Amendment prohibits the imposition of liability without fault.
The trial record on the issue of fault is this: (1) the Pilot had no intention to
convey the implied defamatory meaning alleged by Webb after publication;
(2) reporter Hansen’s exceptionally thorough investigation was, by Webb’s
admission, not negligent; and (3) Webb’s proof of actual malice consisted
of (a) the reporter’s testimony that he did not believe Webb, an Assistant
Principal at Oscar Smith High School, could influence his son’s discipline at
Great Bridge High School, and (b) bits and pieces of testimony suggesting
that the reporter did not like Webb or Webb’s refusal to give an interview.
14

21. This evidence was manifestly insufficient to prove constitutional actual
malice.
Where defamation by implication is alleged, the common law of
Virginia and the First Amendment to the United States Constitution sharpen
the fault inquiry by requiring the plaintiff to establish that the alleged
defamatory meaning is intended or endorsed by the publisher. To do less
places at serious risk the ability of the media to report true facts with
accuracy, particularly on matters of public concern. Regardless of Webb’s
status as a public official, a public figure, or a private figure, the Court
should recognize that the Pilot, in reporting on the administration of
discipline in the public schools, performed precisely the function we
demand of a free press – asking obvious questions on a matter of public
concern. This case presents an opportunity to reinforce the rule that a
plaintiff, irrespective of his status as a public official, public figure, or private
figure, when alleging defamation by implication, must establish by clear
evidence that the publisher intended or endorsed the meaning that forms
the basis for his defamation claim.
15

22. ARGUMENT AND AUTHORITIES
I.
Webb’s Claim Is a Prohibited False Light Invasion of
Privacy Claim Disguised as Defamation by Implication.
A. The False Light Tort Is Prohibited in Virginia.
False light invasion of privacy, according to one leading
commentator, traces its roots to Lord Byron, who successfully enjoined the
publication of a mediocre poem falsely attributed to him, as it suggested
that he was capable of poor work. Lord Byron v. Johnston, 2 Mer. 29, 35
Eng. Rep. 851 (1816), discussed in 2 R. Smolla, Law of Defamation §10:8
(2d ed. 2002). The Restatement of (Second) Torts describes the tort:
One who gives publicity to a matter concerning another that places
the other before the public in a false light is subject to liability to the
other for invasion of his privacy if
(a) the false light in which the other was placed would be highly
offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the
falsity of the publicized matter and the false light in which the other
would be placed.
Restatement (Second) of Torts § 652E (1977).
The inherent ambiguity of this tort is manifest, and Virginia does not
permit the assertion of “false light” claims. WJLA-TV v. Levin, 264 Va. 140,
160, 564 S.E.2d 383, 394 n.5 (2002). The Supreme Court of the United
States made its distaste for unbounded, non-defamation privacy claims
16

23. clear in Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456
(1967). Plaintiff relied on a New York privacy statute to seek damages
from the publisher of Life magazine, which reported on a new play that
fictionalized a real criminal incident involving his family. The Supreme
Court noted that the state law privacy claim, even if pursued by a private
figure, would need to be bounded by strong constitutional limits:
The guarantees for speech and press are not the preserve of political
expression or comment upon public affairs, essential as those are to
healthy government. One need only pick up any newspaper or
magazine to comprehend the vast range of published matter which
exposes persons to public view, both private citizens and public
officials. Exposure of the self to others in varying degrees is a
concomitant of life in a civilized community. The risk of this exposure
is an essential incident of life in a society which places a primary
value on freedom of speech and of press. “Freedom of discussion, if
it would fulfill its historic function in this nation, must embrace all
issues about which information is needed or appropriate to enable the
members of society to cope with the exigencies of their period.” . . .
We create a grave risk of serious impairment of the indispensable
service of a free press in a free society if we saddle the press with the
impossible burden of verifying to a certainty the facts associated in
news articles with a person's name, picture or portrait, particularly as
related to nondefamatory matter. Even negligence would be a most
elusive standard, especially when the content of the speech itself
affords no warning of prospective harm to another through falsity. A
negligence test would place on the press the intolerable burden of
guessing how a jury might assess the reasonableness of steps taken
by it to verify the accuracy of every reference to a name, picture or
portrait.
Time, 385 U.S. at 388, 87 S.Ct. at 542-43, 17 L.Ed.2d at 467 (citations
omitted)(italics added)(imposing actual malice fault standard).
17

24. B. Webb’s Claim is Not for Defamation but for False Light
Invasion of Privacy.
Although denominated a defamation by implication claim, the
gravamen of Webb’s claim cannot be masked. The clearest indicator of
this was the touting by his counsel of the fact, not that Webb suffered
reputational injury, but that he was devastated personally by his inclusion in
an Article that reported literally true but unfortunate facts about his family.
As noted in the Statement of Facts above at page 11, Webb elicited
“damages” testimony from witnesses that did not center on the falsity of
any fact implied in the Article, but on the outrage they shared over the fact
that it was “grossly unfair” to mention Webb by name in a negative story
about his sons. See, e.g., Tr. at 218:11-14 (Fowler), J.A. 706.4 As the
commentators note, a significant point of differentiation between false light
claims and defamation claims is that defamation law focuses on injury to
reputation, whereas the “privacy” tort focuses on a person’s right to be let
alone. See generally 2 R. Smolla, Law of Defamation §10:10 (2d ed.
2002); B. Sanford, Libel and Privacy § 11.4.4 (2d ed. 2013). Webb’s claim
presents a “false light” fact pattern, emphasizing his unnecessary
4
Although the passage is not in the Joint Appendix, the jury heard Webb’s
counsel ask this question to Fowler, to which an objection was sustained:
“Did the article portray Mr. Webb in a positive or a negative light?” Tr. (May
22, 2012) at 217:21-22.
18

25. association with a true article that may allow readers to view him in a
negative light.
Webb’s counsel argued to the jury that Webb’s mere inclusion in the
Article was the “point” of his case. This was not aimed at defamatory
meaning and falsity; it was a direct attack on editorial decisionmaking. It is
reasonable to infer that this argument, and the cumulation of testimony
reinforcing the argument, influenced the jury’s deliberations and quite likely
shifted its focus away from the core tasks of determining whether (1) the
Article truly implied a defamatory and false meaning, and (2) the Pilot was
at fault for proximately causing injury to Webb’s reputation.
This case is not unique. A wave of false light cases traveling under
the guise of defamation by implication has recently washed through
Virginia’s state and federal courts. In some cases, the courts have
examined the criticized publications and correctly recognized that the
“implications” asserted in the complaint are not present, dismissing the
cases on demurrer or under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. See Lucente v. Media General Operations, Inc. et al., Case
No. 820CL060000109-00 (Circuit Court, City of Waynesboro
2006)(demurrer sustained to libel by implication claim)(unreported letter
opinion dated September 26, 2006 attached as Appendix 1) petititon for
19

26. appeal refused, Record No. 062711 (April 11, 2007); Claiborne v. Strange
and Halifax Gazette Publishing Co., Case No. C005000185 (Circuit Court,
Halifax County 2006)(demurrer sustained from the bench April 26, 2006;
transcript excerpt attached as Appendix 2) petition for appeal refused,
Record No. 061624 (October 26, 2006); Compton v. Foster, 82 Va. Cir.
279; 2011 Va. Cir. LEXIS 173 (Circuit Court, Russell County 2011)
(sustaining demurrer); Hanks v. WAVY Broadcasting, L.L.C., Civil Action
No. 2:11cv439, 2012 U.S. Dist. LEXIS 15729, 40 Med. L. Rep. 1424 (E.D.
Va. Feb. 7, 2012)(applying Virginia law; granting motion to dismiss under
Rule 12(b)(6)).
Other courts have permitted a plaintiff to proceed with a claim based
on strained inferences drawn from admittedly true and neutrally reported
facts. See, e.g., Frizzell v. Media General, Inc., 71 Va. Cir. 163, 2006 Va.
Cir. LEXIS 76 (Circuit Court, City of Roanoke 2006)(overruling demurrer;
finding that businessman could suffer reputational injury from true report
that he returned videotapes to a customer only after being contacted by
television station’s consumer reporter) (case settled prior to trial).
In Compton, Claiborne and Lucente, locally prominent individuals,
like Webb, focused not on defamatory content, but on the publisher’s
audacity in mentioning them in a story that raised pointed questions about
20

27. matters of public concern. All were unhappy about this embarrassing
exposure, and brought “false light” claims disguised as defamation actions,
alleging “implied meanings” that the published stories could not fairly bear.
Those cases, like Webb’s, were marked by a misplaced emphasis on
the plaintiff. Webb was included in the Article to provide relevant content,
but fundamentally the Article was not about him. The Article concerned
public decision-makers at Great Bridge High School whose disciplinary
decisions about Kevin Webb were questioned. The Article asked: why did
they decide not to discipline Kevin Webb, and what drove their decision?
Webb’s status was a data point relevant to answering that question, and
the Article presented the answer the Pilot received from the school
system’s spokesman without embellishment. This emphasis on the plaintiff
at the expense of context was pointedly rejected in a recent federal case,
applying both the “of or concerning” rule and the analysis of libel by
implication to conclude that no reasonable person would infer the alleged
defamatory message from a television broadcast about tax preparers.
Hanks, 2012 U.S. Dist. LEXIS 15729 at **23-25 (granting motion to dismiss
under Rule 12(b)(6) and dismissing action).
As this case demonstrates, quasi-false light claims present a
significant risk that outcomes will not be driven by facts material to the
21

28. essential elements of a defamation claim. The record shows that Webb
emphasized facts that impugned the defendants’ editorial decision to
include him in the story, and facts that emphasized his embarrassment at
being named in the story. The literal truth of the story was pushed to the
margin. Accurately reported, non-defamatory facts were criticized for
causing readers to consider Webb in a negative light. This Court has
closed the front door on such false light proof; it must ensure that the law of
defamation by implication is not employed to throw open the back door to
the same proof.
The obvious place for the courts to evaluate and weed out spurious
cases of this genre is during their initial consideration of the criticized
content, often on demurrer. Trial courts act as gatekeepers, determining as
a matter of law whether (1) the criticized content is truly capable of the
defamatory meaning that the plaintiff alleges it implies, see, e.g., Perk v.
Vector Resources, 253 Va. 310, 316, 485 S.E.2d 140, 144 (1997); and (2)
there are sufficient facial indicia of the publisher’s intention to deliver the
asserted defamatory message that the law should permit a jury to assign
fault. See Carwile v. Richmond Newspapers, Inc., 196 Va. 1, 82 S.E.2d
588 (1954). The court below took an extraordinarily broad view of what is
permissible under inquiry (1), but because the Court declined to accept the
22

29. assignment of cross-error on that issue; it is not discussed below. The
court below did not address inquiry (2) in its demurrer ruling, but ultimately,
applying the actual malice rule, it effectively determined that the implied
message claimed by Webb was not intended by the Pilot.
Part II below addresses the trial court’s correct determination that
actual malice was not proven. Part III explains that the trial court could
have reached the same result more directly by holding that the Article bore
no facial indicia that the claimed defamatory implication was intended or
endorsed by the Pilot.
II.
The Circuit Court Did Not Err in Granting the Pilot’s Motion
to Strike Because Webb Did Not Prove Actual Malice
(Assignment of Error I).
A. The Actual Malice Standard Was Properly
Applied to Webb’s Claim.
1. Webb Conceded That Actual Malice Controls.
Webb conceded in opposition to the motion to strike that his theory of
fault at trial was limited to the actual malice standard: “Plaintiff’s case . . .
rests on clear and convincing evidence of knowledge of falsity and reckless
disregard of the truth.” Webb Post-Trial Br. at 21, J.A. 474, 494. Webb
now contradicts this concession on appeal, and without identifying any
evidence of negligence in the record, argues that the verdict may be
23

30. reinstated on a negligence theory because negligence “was proven as a
matter of law.” Webb Br. at 3. He does not explain this reversal.
Webb notes further, without analysis, that “because negligence has
been subsumed within actual malice,” he has necessarily established
negligence. Id. (citing Richmond Newspapers, Inc. v. Lipscomb, 234 Va.
277, 287-88, 362 S.E.2d 32, 37-38 (1987)). This is not true if his proof of
actual malice failed. As the dissent in Lipscomb pointed out, the failure to
prove actual malice did not logically constitute proof of negligence, an issue
that had never been submitted to the jury. 234 Va. at 301-02 (Stephenson,
J., concurring in part and dissenting in part).5
2. The Circuit Court Correctly Characterized Webb As a
Public Official (Assignment of Error II).
This Court has not addressed the status of an Assistant Principal as a
“public official” for defamation purposes. The Pilot addresses this issue
ably, and the amici curiae support and incorporate its argument. Unlike the
5
Neither the majority nor the dissent in Lipscomb grappled with the fact
that the difference between negligence and actual malice in a defamation
case is not one of degree, but of kind. Actual malice concerns the
subjective stance of the publisher toward the truth of the published content.
“Recklessness” as used in the constitutional sense is not the same as
“recklessness” in the general tort law sense. Jordan v. Kollman, 269 Va.
569, 580, 612 S.E.2d 203, 209 (2005)(explaining the “reckless disregard”
prong of the actual malice test). Actual malice is not a form of gross
negligence. See generally, 1 R. Sack, Sack on Defamation: Libel, Slander
and Related Problems § 5.5.1[A] (4th ed. 2013).
24

31. plaintiff school teacher in Lipscomb, Webb had significant decisionmaking
and supervisory authority. His own witness described the scope of Webb’s
responsibility as “huge.” Tr. at 121:4-8 (Joseph), J.A. 668. Joseph’s
testimony, as well as that of Webb, identified significant governmental
functions under Webb’s purview, and revealed the extent of his ability to
influence hundreds of families, many with children in special education
programs. See Tr. at 121:9-122:5 (Joseph), J.A. 669-70; Tr. at 42:24-45:13
(Webb), J.A. 615-18. He not only answered “upstream” to others; he had
fifty to sixty teachers and teacher assistants under his supervision. Tr. at
121:20-25 (Joseph), J.A. 669.
It should not be lost on the Court that the implied defamatory
meaning Webb extracts from the Article is inextricably tied to, and
necessarily emphasizes, his status as a senior public school administrator.
His damages are alleged to flow in part from the degree to which the Article
impairs his ability to impose discipline as an Assistant Principal. Tr. at
69:11-25 (Webb), J.A. 629. Ironically, when that same emphasis on the
significance of his job leads to application of an unfavorable legal rule -public official status -- he jettisons it and argues that his relationship to the
conduct of government is “far too remote.” Webb Br. at 27.
25

32. Webb extensively discusses Rosenblatt v. Baer without addressing
its explicit premise. The case rejects the use of state law characterizations
of a plaintiff’s authority, relied on heavily by Webb, and demands
consideration of the plaintiff’s status in light of federal constitutional
objectives. Rosenblatt v. Baer, 383 U.S. 75, 84, 86 S.Ct. 669, 675, 15
L.Ed.2d 597, 604-05 (1966). See generally B. Sanford, Libel and Privacy §
7.2.2.1 (2d ed. 2013). Being “five levels” removed from the School Board
in the bureaucracy is immaterial to the question of whether Webb is
“among the hierarchy of government employees who have, or appear to the
public to have, substantial responsibility for or control over the conduct of
governmental affairs.” Rosenblatt, 383 U.S. at 85, S.Ct. at 676, 15 L.Ed.2d
at 605. The Circuit Court correctly rejected Webb’s arguments, and should
be affirmed on this point.
3. Actual Malice Must Be Proven Where Substantial
Injury to Reputation is Not Apparent.
The First Amendment prohibits the imposition of liability in a
defamation case without proof of fault. Gertz v. Welch, 418 U.S. 323, 347,
94 S.Ct. 2997, 3010, 41 L.Ed.2d 789, 809 (1974). Virginia follows this
constitutional mandate. In Gazette, 229 Va. at 15, 325 S.E.2d at 724-25,
cert. denied 472 U.S. 1032 (1985) and cert. denied 473 U.S. 905 (1985),
this Court rejected strict liability in defamation actions, requiring proof of
26

33. negligence in cases brought by private figures. Negligence in a defamation
case follows general tort concepts of negligence. It is a failure to exercise
reasonable care under all of the circumstances. See 1 Virginia Model Jury
Instructions: Civil, No. 4.000 (2013). Virginia does not require or permit
proof of a journalistic standard of care. Lipscomb, 234 Va. at 296-97, 362
S.E.2d at 42-43.
Public officials and public figures must establish fault under a different
standard, actual malice (New York Times malice), in order to recover. New
York Times Co. v. Sullivan, 376 U.S. 254, 283, 84 S.Ct. 710, 727, 11
L.Ed.2d 686, 708 (1964)(rule applied to public officials); Gertz, 418 U.S. at
352, 94 S.Ct. at 3013, 41 L.Ed.2d at 812 -13 (defining public figures).
“Actual malice” is a defamation law term of art. It demands proof of the
subjective stance of the defendant toward the truth of the published
content: (a) did it know at the time of publication that the facts reported
were false, or (b) did it possess a high degree of awareness that the facts
were probably false and proceed to publish anyway? St. Amant v.
Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262, 267
(1968). It has nothing to do with the reporter’s personal animus toward his
subject. Jackson v. Hartig, 274 Va. 219, 229-230, 645 S.E.2d 303, 309
(2007).
27

34. Critically, private figure plaintiffs in Virginia must prove actual malice
in certain circumstances:
The application of this negligence standard is expressly limited,
however, to circumstances where the defamatory statement makes
substantial danger to reputation apparent. The trial judge shall make
such determination as a matter of law. If, on the other hand, no
substantial danger to reputation is apparent from the statement in
issue, New York Times malice must be established to recover
compensatory damages.
Gazette, 229 Va. at 15, 325 S.E.2d at 725. See generally, B. Sanford,
Libel and Privacy § 8.4.1 n.169 (2d. ed. 2013). Thus, even a private figure
is subject to the requirement that he prove actual malice where the content
in question does not put the publisher on notice of its potential to cause
reputational harm. In circumstances where libel by implication is alleged,
this limitation can be critical. See, e.g., Gazette, 229 Va. at 29, 325 S.E.2d
at 733 (Charlottesville Newspapers, Inc. v. Matthews appeal; reasonably
prudent editor should have appreciated publication was sufficiently
defamatory on its face).
Whether Webb is a private figure or a public official, it is manifest that
the actual malice standard must apply. The plain text of the Article
explicitly denies any connection between Webb and the disciplinary
decisionmaking at his son’s high school. No evidence was offered, and the
content of the Article did not indicate, that the reporter or his publisher
28

35. should have believed substantial injury to Webb’s reputation (as opposed
to resentment and hurt feelings) would result from publication. If the Pilot
was to be exposed to a compensatory damage award under such
circumstances, Virginia law compelled the imposition of an actual malice
standard.
B. Webb Did Not Prove Actual Malice.
Actual malice must be proved with “convincing clarity.” Bose Corp. v.
Consumers Union, 466 U.S. 485, 511, 104 S.Ct. 1949, 1966, 80 L.Ed. 2d
502, 523 (1984). This standard is articulated in Virginia jury instructions as
“clear and convincing evidence.” See 1 Virginia Model Jury Instructions:
Civil, No. 3.110 (2013). Here, Webb’s proof consisted of a naked attorney
argument, bolstered by evidence of two heavily-characterized incidents that
were legally immaterial to the actual malice inquiry.
Webb first argues that he proved knowledge of falsity. Webb Br. at
12-13. His “proof” is simply a semantic trap. No testimony was elicited
that the reporter, Hansen, believed the defamatory meaning assigned to
the Article by Webb: that Webb used his official position to influence the
disciplinary process at his son’s school. The evidence shows that, in
response to his initial interviews of the Bristols, Hansen pursued a question
raised by the Bristols, a question painfully obvious to any observer in light
29

36. of the known facts: how did Kevin Webb avoid discipline at the hand of the
school system, and was the outcome connected in any way to his father’s
position? The one source who addressed the question was Cupitt, and
Hansen reported Cupitt’s denial of any such connection in the Article.
Webb twists this evidence into proof that the Article was false, and
that Hansen knew it was false. Webb argues:
Under questioning by the newspaper’s own lawyer, Hansen testified
unambiguously and unequivocally that he did not think it was
“possible” for an assistant principal at Oscar Smith High School, such
as Webb, to influence discipline of a student at Great Bridge High
School, where his son Kevin attended school.
Q.
And at the time you wrote the article, did you think it was
possible for an Oscar Smith assistant principal to influence discipline
at Great Bridge?
A.
No.
J.A. 660/11-14. By that testimony, Hansen conceded that he knew
the defamatory implication from which Webb’s cause of action arose
was false.
Webb Br. at 13 (italics added).
If this mode of proof is acceptable, proof of actual malice in
defamation by implication cases is shooting fish in a barrel. It costs nothing
to accuse a writer of meaning the precise opposite of what she has
reported. When the writer properly denies that she intends or endorses the
“implied” meaning (that is, the meaning invented after the fact and
30

37. attributed to her by her adversary) and explains why, she is charged with
knowledge that her initial assertion of a true fact delivered a false factual
implication.
The Government Micro Resources case cited by Webb illustrates the
point. In that case Pujals made the allegedly defamatory statement that
Jackson was fired because Jackson lost $3 million. Pujals admitted at trial
that, at the time he made that statement he knew that Jackson had not lost
$3 million. Simply, Pujals admitted that he knew his statement of fact about
Jackson was false when made. Government Micro Resources, Inc. v.
Jackson, 271 Va. 29, 42-43, 624 S.E.2d 63, 70 (2006).
If the fact pattern of that case had been the same as the case at bar,
Pujals would have made a true statement that Jackson did not lose $3
million. Jackson thereafter would have accused Pujals, without any proof,
of really meaning that Jackson did lose $3 million. Pujals no doubt would
have testified that his initial assertion was true becuase Jackson really did
not lose $3 million. Jackson would then have offered Pujols’ testimony to
prove not that Pujols knew his original statement was false when made, but
that Pujols knows the meaning that Jackson assigned to Pujal’s statement
after the fact was false. The two are not the same: proving that Pujols
agrees that a later-invented and contrary meaning is false has no tendency
31

38. to prove the legally relevant fact -- that Pujols believed his original
statement was false when it was uttered.
With this in mind, it is useful to revisit Webb’s brief. Webb does not
make the unvarnished statement that he proved Hansen’s knowledge,
before publication, of the falsity of any fact reported in the Article. He never
proved that. Instead, he conflates Hansen’s present explanation that he
did not intend or endorse the meaning later ascribed by Webb with
Hansen’s knowledge of falsity in the Article at the time of publication.
Webb artfully asserts not that Hansen knew the Article contained a
falsehood, but that he proved that Hansen “knew the defamatory
implication from which Webb’s cause of action arose was false.” Webb Br.
at 13 (italics added).
Webb’s evidence that Hansen possessed a “high degree of
awareness of probable falsity” was immaterial to the defendants’ subjective
knowledge of the truth or falsity of the Article. The trial court correctly
rejected the idea that Webb’s proof of ill will in the form of the “napalm”
email message had any tendency to show that Hansen harbored subjective
doubts about the truth of the Article. August 6, 2012, Letter Opinion at 4,
J.A. 542 (analogizing the comment to a similar comment that was rejected
as proof of actual malice in Jackson v. Hartig). Although the trial court’s
32

39. letter opinion did not address the testimony that Hansen threatened to write
a “one-sided” story, the law is overwhelmingly clear that the relevant inquiry
is not whether a story is one-sided, even intentionally so, but whether the
publisher believed it to be false. See generally, R. Sack, Sack on
Defamation § 5.5.2 at 5-96,97 (4th ed. 2013)(discussing the irrelevance of
one-sidedness and similar features in a story to prove actual malice).
The actual malice standard was proper in this case. Webb did not
prove knowledge of falsity or reckless disregard. No jury, on this record,
could have found that fault was proven by clear and convincing evidence,
and the court below correctly granted the motion to strike.
III.
The Circuit Court’s Judgment Should be Affirmed on Alternative
Grounds Because The Pilot Did Not Intend or Endorse the
Defamatory Implication Advocated by Webb (Assignment of
Error I).
A. Virginia Law Requires that the Defendant Intend or Endorse
an Implied Defamatory Meaning.
In Carwile v. Richmond Newspapers, Inc., 196 Va. 1, 82 S.E.2d 588
(1954), a media defendant reported on a prominent attorney-politician. He
sued for defamation after the newspaper wrote an article about a grand
jury’s rejection of allegations he had made about the city police department.
The trial court granted summary judgment for the newspaper and this Court
reversed and remanded the case. Carwile stated:
33

40. . . . it is a general rule that allegedly defamatory words are to be
taken in their plain and natural meaning and to be understood by
courts and juries as other people would understand them, and
according to the sense in which they appear to have been used.
196 Va. 1, 7, 82 S.E.2d 588, 591-92. The Court, in applying this rule, made
clear that it had not conducted a search for every implied meaning that a
reader might have extracted from the article. It said:
. . . it is a reasonable implication of this language, read in
connection with the whole article, that the plaintiff is guilty of unethical
and unprofessional conduct for his charges made against the Police
Department; for which conduct the defendant suggests in a veiled but
pointed way that the plaintiff could and should be subjected to
disbarment proceedings . . .
Id. at 9, 82 S.E.2d at 592 (italics added). Thus, the defamatory implication
that plaintiff should be disbarred was found by the Court not to arise
naturally from facts that were reported in a neutral fashion, but from a
message that the newspaper “suggested” in a “veiled but pointed way.”
“Suggested” is the past tense of “suggest,” a transitive verb and an
action word. Dictionary definitions presume an actor who puts an “idea,
proposition or impulse” into another’s mind or insinuates a thought. See,
e.g., Webster’s Third New International Dictionary of the English Language
(Unabridged)(1971).
Carwile teaches that the criticized content must bear sufficient facial
indicia of the defendant’s intentionality that it is proper to allow the finder of
34

41. fact to charge the defendant with responsibility for the defamatory
message. Compare Schnupp v. Smith, 249 Va. 353, 359, 457 S.E.2d 42,
45 (1995)(defamatory meaning implied in a slander case where speaker
describes conduct of plaintiff as consistent with a drug sale from a van in a
“high profile drug area”). In non-legal terms, it must appear fair and proper
to assign “ownership” of the alleged defamatory message to the publisher.
Applying Virginia law in circumstances where defamatory implications
allegedly arose from facts that were literally true, the Fourth Circuit held
that the First Amendment’s solicitude for truthful speech demands a strong
showing by the plaintiff:
Moreover, because the constitution provides a sanctuary for truth, a
libel-by-implication plaintiff must make an especially rigorous showing
where the expressed facts are literally true. The language must not
only be reasonably read to impart the false innuendo, but it must also
affirmatively suggest that the author intends or endorses the
inference.
Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092-93 (4th Cir. 1993)(citing
Garrison v. Louisiana, 379 U.S. 64, 74 (1964)(“Truth may not be the
subject of either civil or criminal sanctions where discussion of public affairs
is concerned.”)) and Philadelphia Newspapers, Inc. v. Hepps, 475 U.S.
767, 776, 106 S.Ct. 1558, 1564, 89 L.Ed.2d 783, 792 (1986). That court
has since indicated the continuing viability the Chapin rule. See Hatfill v.
35

42. The New York Times Company, 416 F.3d 320, 334 n.7 (4th Cir. 2005)
(distinguishing Chapin while acknowledging the rule).
This approach is entirely consistent with Carwile. Although decided
ten years before New York Times v Sullivan, Carwile accurately anticipated
the constitutional overlay that would emerge in the law of defamation,
requiring that a libel by implication case cannot proceed unless the trial
court discerns from the article the publisher’s intention to deliver an implied
defamatory message. This is a salutory rule that protects the publication of
literally truthful facts and discourages the post-publication assignment of
implied meanings to effect liability without fault. See generally 1 R. Sack,
Sack on Defamation: Libel, Slander and Related Problems § 2:4.5 (4th ed.
2013).
B. Although it Reached the Correct Outcome, the Court Below
Did Not Correctly Apply the Rule that a Defamatory
Implication Be Intended or Endorsed.
Notably, the court below accepted this rule and applied it in giving
jury instructions. See Jury Instructions 10, J.A. 456; 17, J.A. 464; and 26,
J.A. 473 (all requiring proof that the defendants intended the alleged
defamatory implication). In ruling on the motion to strike, however, the trial
court backtracked on the issue, remarking that “It has not been determined
by our supreme court that a defendant must intend the implication. For
36

43. purposes of this analysis, I will side with Plaintiff and hold Plaintiff may
benefit from the circumstantial inference that everyone intends the results
of their voluntary acts.” August 6, 2012, Letter Opinion at 2, J.A. 540.
It is not clear what authority supports the trial court’s somewhat
cryptic second sentence in a defamation context. More to the point, the
statement in the first sentence that this Court has “not determined” the
issue suggests that Carwile may not be as clear to Virginia’s trial judges as
the amici curiae assume.
C. The Court Should Reaffirm the Rule that a Defamation by
Implication Plaintiff Must Prove That the Publisher Intended
or Endorsed the Allegedly Defamatory Implication.
Defamation by implication claims, as this case shows, present
challenges for trial judges. They must not conflate the distinct essential
elements of defamatory meaning (a meaning injurious to reputation) and
falsity. They must evenhandedly evaluate published content ranging from
newspaper articles to websites to television broadcasts, in order to
determine what meanings are either directly stated or may be inferred by a
reasonable reader or viewer. They must determine the plaintiff’s status to
apply fault rules.
This case, because it presents an allegation that admittedly true facts
generate a contrary defamatory implication, provides an opportunity to
37

44. reinforce two critical points that trial courts must determine as threshold
matters of law.
First, in every defamation by implication case, the initial task of the
trial judge is to read the criticized text in its entirely, ignoring the parties’
characterizations of the text, and to ask the question: “What does this
really say about the plaintiff?”6 Truth or falsity is immaterial at this stage -the only question is “What, fairly understood by the reader or viewer, is the
meaning of this?” This is not a speculative, imaginative enterprise; it is not
a hunt to find all negative meanings that a reader might infer. Neither is it
an effort to confirm implied meanings that can be invented after publication
by creative lawyers. It is not a search for passages that simply cast plaintiff
in a negative light. The search, informed by Carwile and its progeny, is for
messages, express or implied, delivered with certainty, that a reasonable
and unbiased reader would infer from reading the entire article in context,
and that meet the strict legal definition of “defamatory.”
Second, if a defamatory meaning is truly implied by the text, the
related gatekeeping task is to determine whether that meaning is intended
or endorsed by the publisher. Do passages in the text or the broadcast,
6
Although this case arises in the newspaper context, the principle applies
to all media. The courts must look at text, audio, and video together in
context to determine their effect upon the reasonable reader or viewer.
38

45. understood in the context of the entire story, indicate that the publisher is
“suggesting” the defamatory message in a “veiled but pointed” way? If all
of the facts are literally true, does the content as a whole plainly suggest
that the publisher intends or endorses the implied defamatory meaning?
This threshold legal analysis is the true cutting edge in many
defamation by implication cases. Trial judges must respect the right of
every person to state a colorable claim for relief, and to pursue a wellfounded claim to verdict. However, the constitutional protection of speech
is a precious priority. The amici curiae believe that every publisher,
regardless of media platform, is entitled to have its publication of true facts
taken at face value, and that a later assertion that a publisher has hidden a
defamatory message among those facts should be met with a proper
skepticism. At minimum, the Court should hold that a media defendant
reporting on a matter of public concern, where its published facts are
admitted to be true, may not be held liable where a defamatory implication
is alleged unless the publication indicates that the publisher intended or
endorsed the implication. The court below could properly have dismissed
the Second Amended Complaint because the attached Article bore no
indicia that the defendants intended or endorsed the meaning advocated by
Webb.
39

46. CONCLUSION
The judgment of the court below should be affirmed. It correctly
applied the actual malice standard and properly found that Webb’s proof of
fault failed. On these facts, the actual malice standard was applicable even
to a private figure. Finally, given the procedural posture of this case, the
Court should reinforce the teaching of Carwile that a claim of defamation by
implication may only succeed where the alleged defamatory message is
intended or endorsed by the publisher.
Virginia Press Association
Virginia Association of Broadcasters
The Associated Press
World Media Enterprises, Inc.
LIN Television Corporation
Media General, Inc.
Shenandoah Publications Inc.
Snowy Mountain Publishing Inc.
WP Company LLC, d/b/a The
Washington Post
By____________________________
Craig Thomas Merritt (VSB No. 20281)
cmerritt@cblaw.com
Christian & Barton, L.L.P.
909 East Main Street, Suite 1200
Richmond, Virginia 23219-3095
Telephone: (804) 697-4100
Facsimile: (804) 697-4112
40

47. CERTIFICATE
Pursuant to Rule 5:26(h), I, Craig Thomas Merritt, counsel for Amici
Curiae, hereby certifies on this 28th day of June, 2013, that:
1. The parties appearing as Amicus Curiae are: Virginia Press
Association, Virginia Association of Broadcasters, The Associated
Press, World Media Enterprises, Inc., LIN Television Corporation,
Media General, Inc., Shenandoah Publications Inc., Snowy Mountain
Publishing Inc., WP Company LLC, d/b/a The Washington Post.
2. The address and telephone number of counsel for the Amicus
Curiae is:
Craig Thomas Merritt (VSB No. 20281)
cmerritt@cblaw.com
Christian & Barton, L.L.P.
909 East Main Street, Suite 1200
Richmond, Virginia 23219-3095
Telephone: (804) 697-4100
Facsimile: (804) 697-4112
3. The Appellant is Phillip D. Webb.
4. The address and telephone number of counsel for Appellant is:
Jeremiah A. Denton III (VSB No. 19191)
Vivile R. Dietrich (VSB No. 72893)
Rhiannon M. Jordan (VSB No. 78650)
Jeremiah A. Denton IV (VSB No. 83818)
477 Viking Drive
Virginia Beach, Virginia 23452
Telephone: (757) 342-3232
Facsimile: (757) 340-4505
jerry@jeremiahdenton.com
viv@jeremiahdenton.com
rhiannon@jeremiahdenton.com
jake@jeremiahdenton.com
5. The Appellee is Virginian-Pilot Media Companies, LLC.
41

48. 6. The address and telephone number of counsel for Appellee is:
Conrad M. Shumadine (VSB No. 4325)
Brett A. Spain (VSB No. 44567)
Willcox & Savage, P.C.
440 Monticello Avenue, Suite 2200
Norfolk, Virginia 23510
Telephone: (757) 628-5500
Facsimile: (757) 628-5566
cshumadine@wilsav.com
bspain@wilsav.com
7. Three true and correct copies of the foregoing Brief Amicus Curiae
were mailed via first class mail, postage prepaid, to counsel for
Appellant and Appellee at the above addresses; and
8. Fifteen true and correct copies of the Brief Amicus Curiae were
hand-filed with Clerk of the Supreme Court of Virginia, and one copy
in .PDF format was filed with the Clerk via email to
scvbriefs@courts.state.va.us.
___________________
Craig Thomas Merritt
42