Virginia Supreme Court Upholds Dismissal, Finds No “Actual Malice” in Politician’s Libel Claim
 
September 26, 2007
 

In a decision preserving journalists’ rights to scrutinize those seeking election, the Virginia Supreme Court recently held that an editorial writer and his publishing company employer did not act with “actual malice” when they published an editorial containing allegedly false statements that were contradicted by an editorial the same newspaper had published five years earlier.

The plaintiff, Timmy Jackson, was elected to the Virginia Beach School Board in 1994, after the outgoing board had already approved the 1994-1995 budget. In 1995, it was discovered that the board was operating at a deficit and a special grand jury investigated. The grand jury eventually recommended that board members resign or face criminal prosecution. Jackson refused to resign and was indicted for malfeasance. A jury later acquitted him and he served the remainder of his term on the board.

In 1998, when Jackson ran for a seat on the Virginia Beach City Council, the Virginian-Pilot, a Landmark Communications newspaper, printed an editorial endorsing him. The editorial noted Jackson’s past criminal charge but stated that a jury decided that Jackson had been “blameless in the matter” and acquitted him.

In 2003, Jackson sought election to the Virginia House of Delegates. Three days before the election, the Virginian-Pilot published an editorial, written by Dennis Hartig, expressing “deep misgivings about Jackson’s qualifications.” The editorial stated that “it was on [Jackson’s] watch” that the school board budget operated at a deficit and that “the disaster took years to overcome.” The editorial also asserted that Jackson resigned from the board after he was acquitted, which was untrue. The morning of the election, the Virginian-Pilot corrected the inaccuracy. Jackson lost the election.

Jackson sued Hartig and Landmark alleging that they published false and defamatory statements about him in the 2003 editorial. He argued that Hartig and Landmark either knew the statements were false at the time they were published or printed them with reckless disregard for whether they were true or false. Jackson based this argument on the variance between the 2003 editorial and the 1998 editorial.

The state trial court granted the defendants’ motion for summary judgment, holding that: (1) the 2003 editorial’s assertion that the budget crisis was a “disaster that took years to overcome” was opinion and therefore not legally defamatory; (2) the editorial’s statement that Jackson resigned from the board was false but did not disparage him; and (3) although the editorial could be interpreted to mean that Jackson had committed a crime, Jackson’s acquittal was insufficient to establish that the defendants had acted with actual malice. Jackson appealed this decision to the Virginia Supreme Court.

In analyzing the issues on appeal, the Virginia Supreme Court relied on the U.S. Supreme Court case New York Times v. Sullivan, which held that public officials cannot recover damages for defamatory falsehoods relating to their official conduct except where they can show the statements were made with “actual malice” – knowledge that a statement was false or with reckless disregard of whether it was true or false. Proof of actual malice is also required by candidates for public office.

The Virginia Supreme Court held that Jackson could not have proved by clear and convincing evidence that Hartig or Landmark acted with the requisite actual malice in publishing the 2003 editorial. In particular, the court held that the sheer existence of stories in a newspaper’s archives that contradicted an allegedly defamatory statement was insufficient to establish actual malice. Furthermore, even though Jackson accused Hartig of failing to investigate the accuracy of his statements, the court held that Hartig was under no obligation to do so because the facts did not indicate that Hartig had a high degree of awareness of their probable falsity. The court emphasized that Jackson’s acquittal by a jury did not in any way negate the findings of the grand jury, which placed some of the responsibility for the board’s deficit on Jackson’s shoulders. Because the record contained no facts showing actual malice on the part of Hartig or Landmark, the Virginia Supreme Court affirmed the dismissal of Jackson’s case.

For more information, email Jennifer E. Dure at Jennifer.Dure@hklaw.com or call toll free, 1-888-688-8500.